By Byron Pascoe
Music plays an important part in most productions, from short films to full length pictures, from web series to TV series, and everything in between.
Among the top choices of accessing music for a production are licensing existing music from a musician/band, commissioning new music (from an individual song to a score), and licensing music from music libraries and catalogues.
Past Ottawa Beat articles have covered scores, music in ads, and music publishing agreements, all in the context of me writing to musicians. The purpose of this piece is to fill in some of the gaps, and is framed as if I’m writing to a TV or film producer. As a musician, putting yourself in the shoes of a TV or film producer can help you better understand their needs, and provide a better footing for you to deliver what they want and need.
Licensing Existing Music from a Musician/Band
The two necessary rights when placing music in productions are:
- The master use right (also referred to as a master use license), which is the right to use a song’s specific recording; and
- The synchronization right (also referred to as a sync license), which is the right to use the underlying composition.
Everyone who controls a share of the master use or sync licenses must give permission for the song to be used. If multiple people or companies share the publishing rights, if any one of them doesn’t want the placement to happen, the remaining publishers don’t have the power to issue the sync license. This is not a majority rules situation. There may be enough money for one person, but not another. One person may not like the idea of placing the song in a certain type of film or show.
Who provides these rights?
Master Use License
The master use license is granted by the recording’s owner. An independent artist will generally own her own masters. The master rights will generally be owned by the label if an artist has been signed to a major label. Artists on smaller labels either own their masters, or the masters are owned by the label. If an artist is with a label but owns her own masters, she provided an exploitation license to the label, and the decision regarding providing rights to use the masters for a production will either be granted by the artist, the label, or need the approval of both parties. To figure out who owns the masters, just ask. Ask the artist directly or contact the label, or contact one of the artist’s representatives, such as their manager or lawyer. Sometimes this information is easily available on the artist’s website or Facebook page.
The sync license is granted by the composition’s publisher(s). Until the writer or writers of a song assign their publishing rights to someone else, or have their publishing rights administered by someone else, they control the publishing. For example, if I write a song, and I don’t have a deal in place with a publisher, I control my publishing. If I have a publisher, that publisher likely controls the publishing rights in the composition. If I wrote the song with Jimmy, and if neither Jimmy nor I assigned publishing rights to someone else, Jimmy and I jointly control the publishing in the composition.
To figure out who controls the publishing rights, one option is searching for the composition in the SOCAN repertoire which lists the composers/authors and publishers, if any, for many compositions.
If Jimmy and I co-wrote a composition, and don’t have publishers, only Jimmy and I will be listed in the SOCAN registration. If my music publisher is Warner Chappell Music Canada and Jimmy’s publisher is Sony ATV, then the SOCAN registration would list Jimmy, me, Warner Chappell, and Sony ATV. In this scenario, to get the sync rights to use the composition, both Warner Chappell and Sony ATV would need to approve the placement and the fee. This information on SOCAN’s web site is available to anyone.
If there are multiple players involved, such as two publishers, they may want to ensure they’re getting as much money as possible. A publisher may ask that their fee be on a “most favoured nations basis”, meaning that if you offer Warner Chappell $500 for my 50 % share of the publishing rights, and Sony ATV agrees to license Jimmy’s 50 % share of the publishing rights for $400 on a most favoured nations basis, then $500 needs to be paid to Sony ATV instead of the $400.
Generally, the fee for both the master use and sync licenses are equal, caused in part by most favoured nations requests. A common related term is “sides”. Each of the master use and sync licenses are referred to as a side.
When a song cover is used instead of the original, the producer may want a different interpretation of an existing song (woman singing a song originally sung by a man). Another reason is to save the producer money. If a producer wants to use a popular song, but the producer can’t afford to pay for the sync and master use rights to the original famous recording, but can afford to pay for the sync rights, one option is the producer getting her friend’s band to play a good enough cover of the song for a very low fee. As such, the producer pays the fee for the sync rights to the publisher of the composition, and the producer pays the band for the rights to use the master they created.
Instead of finding a band that can cover the song the producer wants to use, the producer can also search on Spotify or YouTube for a few existing versions, and see which performers are willing to license the producer the master use rights for a fee the producer can afford.
Grant of Rights
It’s important the producer gets the master use and sync rights in perpetuity (forever), throughout the universe, in all media.
If the rights don’t last forever, the producer must go back to get more rights if the producer wants to exploit the rights for longer. It will also add a complication with distributors if the producer doesn’t have the music rights forever.
If the rights don’t cover the universe, for example if the rights aren’t granted for a certain area of the world, then the producer must go back to get more rights if the producer wants to exploit the rights around the world. It will add a complication with distributors if the producer doesn’t have the music rights across the universe.
If the rights don’t cover all media, for example if the project is a web series and the rights are only for the web, then the producer must return to get more rights if the producer wants to exploit the rights in other media—such as video on demand. Preferably the rights are granted for all media “now known or hereafter devised (invented).”
In future there will be some new form of distribution that we wouldn’t have thought of today, so it’s not helpful for a producer to get rights granted only for a specific set of media options, or for all media as we know it today. For example, a long time ago if music rights were provided for only TV, the producer would need to go back to the rights holders when the producer wanted to distribute the series on DVD.
This process can get quite complicated the more players there are involved, and the higher profile the recording. One way to navigate these waters is engaging a music supervisor to help the producer get the rights the producer needs for a price the producer can afford. This is another reason why musicians should want to get to know as many music supervisors as they can!
Edwards PC, Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, and Publishing industry clients. For more info and blogs, please visit www.edwardslaw.ca
Regarding music law, Byron Pascoe works with musicians and music companies to assist with record label agreements, publishing contracts, distribution deals, producer agreements, band agreements, etc.
© 2018 Edwards PC
* This article is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards PC, Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.