Music is a fundamental element of the filmmaking process, and can contribute greatly to a film’s success or failure. Generally, there are three types of motion picture music – (1) the pre-existing song and sound recording, (2) the underscore (film orchestral score), and (3) songs written specifically for a film. Just as each musical piece plays a different role in the narrative, each are “bundled” with a set of unique legal rights. This is where copyrights – specifically “copyright clearances” – and licensing come into play. Each type of musical piece requires different negotiations, contracts and considerations. This alert briefly discusses the rights involved for each type of music and how a filmmaker can “clear” them.
First Type of Motion Picture Music: Commercially Released, Pre-Recorded Music
Unless you are using a song in the public domain or a new recording of an existing song, a bundle of licenses may be required to use commercially released, pre-recorded music in a film. Depending on the film, these could include:
The song itself – the music and lyrics. These are generally held by the composers, and more often than not, owned by their publishers.
The master use license, i.e., the rights to the specific recording of that same song, which are generally held by the song’s producer or the record company.
For example, to use a recording of one of my favorites this year, High Road written by Broken Bells (Brian Burton and James Mercer), which is published by Chrysalis Music and EMI April Music, Inc. and released by Columbia Records, clearance may be required from the publishers for the music and lyrics, as well as the label for the song recording. It is important to research who owns what rights for each song being used and obtain corresponding licenses, as sometimes the ownership overlaps and sometimes it does not.
Synchronization license, i.e., the general right to synchronize the music with the film’s visual image.
Distribution license, which applies depending on whether the song will be shown in public (i.e., movie theatre, television).
Reproduction license, which applies to all copies made of a film with music (i.e., film, DVDs, Internet streaming, On-Demand).
Soundtrack license, which generally requires negotiation of additional rights with the publisher and record label that apply to the sale of the music separately from the film itself.
Second Type of Motion Picture Music: The Underscore
The underscore, otherwise known as the film’s “score”, is the background music that may be written specifically for a film. As a general matter, filmmakers often hire composers on a “work-for-hire” basis, i.e., the filmmaker will own the copyright in the music. This assignment of copyright from the composer to the filmmaker requires an “underscore contract” (similar to a “commissioning agreement” noted below) that is generally negotiated, taking into account such things as the composer’s reputation, music budget size, etc. If the underscore is commercially released, pre-recorded music, then the same licenses described above would be required.
Third Type of Motion Picture Music: Music Written for a Film
Like the underscore, music written for a film is generally obtained on a work-for-hire basis. In this case, a “commissioning agreement” is used to set out the deal between the parties.
How Do You Clear Music for a Film?
The music licensing process is complex, time-consuming and difficult to navigate. If possible, it should begin very early, as licensing is often muddled with delays caused by shrinking record label licensing departments and delays caused by competition for record label’s attention from other licensing hopefuls.
Research the publishing and recording rights to each piece of music. For most recorded music, the easiest place to start is the performing rights agencies such as ASCAP, BMI, and SoundExchange, which license and collect royalties for non-dramatic public performances of copyrighted works. Or mechanical rights companies such as Harry Fox Agency. All have extensive catalogs of their respective published works.
Once you have determined the owner of the different right, you can contact each one and state what you want, what you want it for, and the types of rights that you want. Then, you go through the negotiation process, which will vary according to the label and profile of the music itself. Music clearance services are sometimes performed by individual clearinghouses. Legal representation, however, is generally useful and advisable in dealing with the complex and long process of copyright clearance.