Music Rights Unveiled A Filmmaker S Guide To Music Rights and Licensing American Film Market Presents 1st Edition Wentz
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Music Rights Unveiled provides an inside look at the complex world of music rights for film and video,
and includes step-by-step guidance to navigate these tricky waters. Authors Brooke Wentz and
Maryam Battaglia share their decades of expertise in this user-friendly guide, designed specifically
with filmmakers and producers in mind. The book provides a brief history of the pricing of music
in film, television and digital media markets, and explains the process by which music is licensed
or acquired for films, highlighting pitfalls to avoid and strategies for success.
Further features include:
• A discussion of new media platforms and the intricacies of the rights needed to use music on
those platforms;
• Tips for working with key music staff on a production – the composer, the music supervisor
and the music editor;
• An in-depth explanation of building a budget for the music component of your media project.
Brooke Wentz founded The Rights Workshop, an established music licensing and supervision
company, and more recently launched Seven Seas Music, a leading international music discovery
platform. Former MD for ESPN, rights consultant to TechTV, and A&R manager for Arista Records,
Brooke authored Hey, That’s My Music! Music Supervision, Licensing and Content Acquisition. She spent years
hosting various radio shows in NYC and won a Billboard Award for one of the best selling world
music recordings. A graduate of Barnard College and Columbia Business School, she guest lectures
and teaches around the world.
p.ii
Maryam Battaglia’s work combines her passion for music, media, and deal-making. She began
her career in the music industry working at entertainment law firms with a focus on music
publishing administration and licensing. Maryam later joined The Rights Workshop where she
negotiates music rights on behalf of producers for film, television, online and emerging media. In
2015, she and Brooke co-founded Seven Seas Music. Maryam is a frequent speaker on music
clearance and rights issues. She holds a B.A. from UCLA and a J.D. from California Western School
of Law.
p.iii
MUSIC RIGHTS
UNVEILED
A FILMMAKER’S GUIDE
TO MUSIC RIGHTS
AND LICENSING
BROOKE WENTZ & MARYAM BATTAGLIA
p.iv
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
The right of Brooke Wentz and Maryam Battaglia to be identified as the authors of this work has been asserted by
them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any
electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
CONTENTS
Foreword
2. The Law: For Those Respecting the Law, We Salute You. For the Rebels, There Is No Such
Thing as Free Music
6. The Process of Securing Rights: A Step-by-Step Guide to Avoiding Mistakes, Because What
You Don’t Know Can Cost You
7. Brand Personality, Identity and Recognition: People Rank Music as More Difficult to Live
without than Sports, Movies and Newspapers
p.viii
8. Digital Media and Digital Platforms: Welcome to the Digital Era in All Its Forms
Glossary
Index
p.ix
FOREWORD
Music Rights Unveiled is a much-needed guide to the role, use and licensing of music in practically any
type of audio-visual production—whether it’s a network, broadcast or cable television series, a
major studio or independent film, a documentary or student film, an app, an advertising
commercial, a webisode or a user-generated-content music video.
The authors, with their many years of experience in the field, break down and clearly explain
every important aspect of how to use music in different types of productions, how one chooses
the right music, how to make it work best to match the producer’s vision and how to license it
within prescribed budgets. Also covered are the basics of copyright as they apply to songs and
sound recordings, the use of public-domain material, the difference between digital platform
productions versus traditional media projects, the basic structure of a music license, price ranges
for music licenses in various media and more.
A real bonus in the book is the best discussion I have ever seen in all my years of dealing in this
area of the role and importance of music supervisors to any type of film, television or audio-visual
production—from the development stage to pre-production to post-production to the final
marketing of the finished product. They remain an essential part of the success of any production,
large or small.
p.x
This book is written primarily for media producers-directors, producers, editors and music
supervisors. But it is also valuable to anyone working in the field. It covers how you deal with the
various types of music in film, television or any audio-visual work—the use of pre-existing songs
and sound recordings, the considerations in choosing a composer to write an original score, the
use and benefits of using pre-recorded and pre-cleared music from production music libraries and
the benefits of hiring a music supervisor to handle all aspects of music in your production, both
on the business side and the creative side.
Due to the increasing importance of audio-visual streaming services (Netflix, Amazon, Hulu,
etc.) and social media sites (Facebook, YouTube, Instagram, Snapchat, Vimeo, etc.), music
licensing and contracts have changed considerably in order to take into account these new digital
platforms. These days the best music licenses cover as many distribution platforms as possible as
you never know how and when consumers will be accessing your product. The authors cover
Internet streaming rights in detail and explain the many options and considerations contained in
these deals. In addition, they cover all of the non-Internet media rights, including film festival
licenses, educational and art-house theatrical exhibition, non-theatrical and corporate use and the
basics of traditional television licensing.
Todd Brabec, Esq., is a former ASCAP executive vice-president and worldwide director of
membership. He is the co-author of Music, Money and Success: The Insider’s Guide to Making Money in the
Music Business, and is an adjunct professor at USC.
p.1
INTRODUCTION
The Wild West, We Meet Again
Almost every piece of visual media today—from user-generated YouTube videos to TV shows or
films—has a musical component. Music helps move an image along and creates the emotional
foundation for all visual content. It can make tears flow and tensions surge. Almost everyone we
know loves music. Yet, ironically, when most producers or directors work on a film or media
production, music is generally thought of toward the end of a project, during an edit or in post-
production. Many times it tends to be the last money spent when resources begin to get scarce or
eaten away by other line items. As a result, music doesn’t always get the attention it deserves. But
media creators who understand its importance relish the time when they can work with their
chosen composer, or delve into their deep music catalogs, to pair the right vibe with an image.
One filmmaker made a documentary about a piano player who was blind, so after the edit and
during post he put together a list of all the songs the protagonist had played in the film. With his
list of songs, he needed to start getting permission from all the copyright holders. This process is
called clearance or copyright clearance. However, because he could not gain permission from
some of the copyright holders at a fee that he could afford, the songs had to come out of the
production after he had locked picture. This is why it is important to think about your music
sooner rather than later.
p.2
Another filmmaker spent years following Neil Diamond tribute bands around the country. After
viewing the film, and to the surprise of the filmmaker, Mr. Diamond did not grant him permission
to use his compositions, so the film had to be shelved.
A similar project about a Johnny Cash tribute band also had to be placed on hold, not because
of song rights but because the Cash estate strictly prohibits projects involving tribute bands. Now,
these may seem like dramatic examples, but they are real and you can’t simply make a film about
The Beatles and use Beatles songs without getting their blessing. It’s just not going to happen.
Music rights, or permission to use the desired music, can be difficult to comprehend. There are
complex terms and relationships that come with securing permission. On top of the practical
issues, the news media continue to enjoy reporting on the next infringement case, the next non-
payment stream to an artist and the downturn in music industry sales. The media highlights the
cat-like predatorial stance that record labels and publishers take to sniff out infringers. This makes
media creators apprehensive and diligent about wanting to obtain proper permission to use a piece
of music. They wonder, can I use a particular song or not? Who do I ask for permission? Is it okay
to use 10 seconds of a piece of music? It’s on the Internet, so isn’t it free?
No! It is not free or okay to use. But don’t fret. That is why you are reading this book. We’re
here to help you through the labyrinth! To help unveil the myths and truths, and decipher the
protocol required to secure what you need in order to make it work for you. Take a big breath. Sit
back, relax and we’ll walk you through it.
Music is an intangible asset. You can’t hold it, cradle it, mail it, or even burn it. So when a
media creator wants to incorporate a song into their production, a license must be obtained and
the copyright owner must review the request and negotiate a fee. This is why mediators, or
negotiators, exist. The easiest way to explain the granting of permission for the use of a song is to
compare it to taking a book out of the library. You must return the book by a certain date, in the
same condition. Similarly, when renting a car you have to have a driver’s license, be a certain age
and pay a certain price, and only then can you use the car for a select number of days, within a
certain territory and for a specific fee. Licensing music is similar. You do not own the music. You
are securing permission to use it in a specific territory for a specific term.
p.3
The most perplexing part about music rights is that the ‘rental’ fee varies based on territory,
term (the number of days you want to use it), and where you want it to go, i.e., in which media.
Pricing is subjective. What costs one client a particular fee may cost the next client double the fee,
or half.
Adding to the complexity, the music licensing landscape has become more difficult due to the
plethora of media as a result of the advent of digital technology. In the past, when a song’s usage
rights were being negotiated for a film, it would include traditional distribution forms such as film
festival, theatrical, television, and home video. Now, there is also streaming, digital download,
video-on-demand, Internet and Intranet, mobile/wireless and interactive, and the list goes on.
The protocol is time-consuming (it doesn’t have to be), the paper trail is heavy (due to the
legalities of copyright law), the search can be tiring (hunting out the appropriate copyright
owners) and the back and forth of negotiation is complex (attention to detail is a must!). It’s like
walking a maze or solving a puzzle, so for those who like to speak this speak, the game can be
exciting. There are a lot of pieces you have to put into place before you start the clearance work,
and once they are in place the negotiating begins. You’ll make a lot of twists and turns before you
get to the end. But strike up the band, because the result can be a beautiful thing. There is nothing
better than the most perfect song matching an image, and securing a fee within your budget.
Producers today walk a delicate line to obtain song usage rights, and unfortunately there is no
‘blue book’ to look up previous fees. It’s the real Wild West of pricing: quotes for the use of music
depend on what song it is, where it has been previously placed, whether the artist is ‘recouped’ or
not (that is, is the artist’s account with his record label in the red or black?), the song’s market
value, whether it is part of a premium catalog, where it is used in the production, whether there is
a relationship between the director and composer, and numerous other variables. Trying to get a
copyright owner to define a ‘standard’ price for something is almost impossible; no standard
exists. The standard is what the buyer will bear and what the seller feels is the going price,
dependent on previous fees. The music licensing process is based on protocol, and price depends
on all the nuances of the particular circumstance of using that specific piece of music in that
specific project. This is by no means easy to figure out, but this book will give you a toolbox of
terms and strategies to negotiate your own deals and prepare you to speak intelligently to those
who control the material you wish to use.
p.4
When a filmmaker seeks to obtain music clearance for their film, ad, TV show or new app,
countless factors are considered. The most important item is media: the more exposure a piece of
music has, the more it will cost. So with the advent of the Internet, where you can post a video on
your Facebook page and someone across the world can see it, the media spread is large. This
increased visibility is what copyright holders feel entitles them to charge more. You may say,
“Wait a minute, only 200 people are seeing my video on the web! So I should not be charged as
much.” This is true. However, copyright holders assess the use based on potential reach, more than
who will actually see it. This is exactly their job—to maximize the fee based on the media of
exhibition. They reason it’s how many potential eyeballs could see it, not how many actually see
it.
In this book we will give you hints on how to navigate the maze, and hopefully show you
where the land mines lie. Through our real-life examples and interviews with our lovely
colleagues, we hope this book will help unveil the intricacies of music rights clearance and give
you a deeper understanding of the process by which the licensors allow for copyright use.
We hope to demonstrate the ins and outs of music rights and music clearance, and give you a
look into the role of a music supervisor as well. An equally important goal is to introduce you to
the voice of the licensors, so that you get a good sense of their point of view and how their roles
work. The best negotiators are those who understand both sides. We want to prepare you for these
conversations and equip you with all the information that can help.
p.5
Together we have worked on over 500 projects in film, TV, advertising and new media. Our
work at The Rights Workshop—a music supervision and clearance company—has been to finesse
the delicate process of copyright clearance, and to secure the best prices for clients through
understanding each detail of deal-making. We have had the opportunity to work on dozens of
unique projects—lyrics on napkins, interactive karaoke machines, online instrument teaching
games, virtual reality products, music in mobile sweepstakes, dancing flower-pots, and web-based
talent shows. None is any stranger than another. We’ve written letters to artists in prison, sweet-
talked lawyers who don’t use email, wired money to Cairo on a Sunday and performed other
unimaginable endeavors, all to get songs cleared in time and within budget. It’s not easy. But it’s
crazy fun, and especially rewarding when projects come to fruition. Our stories make for great
cocktail chit-chat and once you delve into this world, you will have plenty of your own! Enjoy.
—Brooke and Maryam
p.7
THE LAW
For Those Respecting the Law, We Salute You. For the Rebels,
There Is No Such Thing as Free Music
If an artist of any sort—visual, music, film, written word—wants their work protected so that they
can earn money from their art, it is highly recommended that they copyright the work. This is
merely registering the art with the U.S. Copyright Office so that the artist is protected from future
infringements, or, more simply, from anyone using their work. It’s easy to register your work by
going to www.copyright.gov. An application for copyright registration contains three essential
elements: (1) a completed application form, (2) a non-refundable filing fee and (3) a non-
returnable deposit—that is, a copy or copies of the work being registered and ‘deposited’ with the
Copyright Office. When the Copyright Office issues a registration certificate, it assigns as the
effective date of registration the date it received all required elements in acceptable form,
regardless of how long it took to process the application and mail the certificate of registration.
Once your music or art is registered, you are then protected under U.S. copyright law from
anyone using or incorporating parts or whole amounts of your work into theirs. Yet the
proliferation of digital and social media platforms has rendered copyright law a mainstream issue
with much considered debate. In today’s world it is easier to poach someone’s creative efforts, so
much so that it has become relatively common. Copyright topics in the news vary widely from
ownership disputes, extensions (the length of time a copyright is protected) and catalog valuations
and acquisitions to infringement cases. Copyright law is the foundation of everything examined in
this book. Without copyright protection, the creative endeavors of writers and producers would
have no financial value. They would not be able to make a living. Therefore, the main reason one
needs to clear or get permission to use music (the process of which is commonly called music
rights clearance) is to secure a formal, legal license to use the music, because someone owns the
underlying copyright and expects the licensee to recognize that and pay for that use.
p.8
While the breadth of copyright law is exhaustive and nuanced, the focus here will be on the
purpose and basic principles that govern the issue. We’ll discuss the historical origins, meaning
and terminology behind commonly used phrases as well as the monetary value associated with
copyright use.
PURPOSE
Copyright protection is instituted to encourage people to keep producing creative work for public
consumption. Creative output is maximized when creators can be rest assured their blood, sweat
and tears are respected and protected, and not stolen. Copyright is an acknowledgment of
authorship and ownership. With protections in place, creatives can keep recording, writing and
publishing with peace of mind.
From a user’s perspective, copyright law serves an important role as well. Companies and
media creators are able to use and incorporate the creation of others in their creative endeavors.
More often than not, a producer comes to us having built his entire vision for a scene around the
emotional elements of a piece of music. Creativity breeds creativity, so when an app developer is
engineering a new game, or a filmmaker is envisioning a scene inspired by the work of another,
the developer or filmmaker is able to incorporate that work into theirs and make something very
special for their consumer and audience. Despite popular opinion, copyright law is not meant to
hinder creativity. Quite the opposite; it’s intended to inspire it.
p.9
HISTORY
Like most of our legal system, U.S. copyright law is based on British law. The idea originally was
to protect people from the copying and reselling of published writings. In 1790, Congress enacted
the first U.S. copyright statute, which was authorized by a clause in the Constitution that
specifically protected works of authorship. This grew out of a need to protect the creators and
writers of books, text and speeches, and orators. ‘Works of authorship’ expanded to include visual
arts, motion pictures, photographs and songs. With the invention of the phonograph record,
sound recordings were also included, and, most recently, digital content can be copyrighted. As of
this publication, we live under the copyright framework established by the 1976 Copyright Act.
This framework has been amended and the term of protection has been extended, but many
principles of the Act remain the same.
DURATION OF COPYRIGHT
Determining the length of copyright protection has its complexities. For works created after 1978,
the term of copyright is the life of the author plus 70 years. Works made for hire, which cover
works created and owned by corporations, have a different standard: either 95 years from the date
of publication or 120 years from the date of creation, whichever expires first. Whether protection
extends to foreign infringers is another consideration. In 1887, the Berne Convention for the
Protection of Literary and Artistic Works (named after Berne, Switzerland, where the Convention
was signed), defined the scope of international copyright protection.
Under the terms of the Convention, reciprocal copyright protection was granted automatically
to all creative works from member countries. It took the United States over 100 years to become a
party to the Convention. In 1989, the Convention established that an author is not required to
register or otherwise apply for a copyright. As soon as the work is written or recorded, its author
is automatically granted exclusive rights to the work until the copyright expires.
p.10
Mechanical License
This grants the user of music the right to reproduce a song in a physical or digital format via CD or
digital download, provided the music has already been commercially released in the United States
by the copyright owner. This is strictly for the audio reproduction of a song and does not pertain
to any visual element that goes along with the audio. Let’s say one wants to record and sell a cover
album of hit sounds from one’s high school years. A mechanical license would be required since
the music is being performed in an audio-only format for release as a CD. Other examples include
soundtrack albums and even karaoke use.
Synchronization License
This license grants permission to use a song which is locked to a moving image or other audio-
visual body of work. This is the license that a filmmaker or media producer must secure when
coupling images with music, since one is securing from the copyright owner the right to
reproduction and distribution and the creation of a derivative work (i.e., the visual image which
embodies the copyrighted material). Except for instances when a use is deemed ‘fair’ (which we
will cover later in this chapter), almost every time a piece of music is paired with visual content a
synchronization license has been secured through the copyright owner. Unlike the compulsory
mechanical license or the blanket public performance license, a synchronization license needs to
be negotiated almost every time.
Figure 2.4 Glen Campbell: I’ll Be Me—2014
Not licensing the material is declaring that there is no need to secure a license for the use of the
music in a film, but adding the music on the cue sheet would still afford the writers performance
income, which is a responsibility of the broadcasting entities, not the filmmaker. Whatever
position you take, or are advised to take by your lawyer, we would recommend not to credit the
fair-used material in the same way the licensed material is credited. Material used pursuant to fair
use has its own credit section, such as ‘Additional music’ or ‘Additional footage.’
p.27
Fair use is by no means all or nothing. If you decide to fair-use portions of your film, it doesn’t
mean you won’t be doing any licensing. Many times a project includes both, and this is when a
clear understanding between the production’s legal counsel and the clearance person is important.
The objective is to have a fully cleared film at the end of the day, and therefore the job of the
clearance person is to deliver all copyrighted materials as designated by the chosen legal counsel.
Having a skilled team beside you will make the process move as smoothly and effectively as
possible.
PUBLIC DOMAIN
Copyright protection does not last forever. When copyrighted works expire (dependent on what
year the work was created) they fall into what is called the public domain. A work is in the public
domain when no one can find any law that gives them legal claim to that property. When a piece
of music is in the public domain, it is considered communal property and can be used freely
without permission and in any way one can imagine. You can arrange, reproduce, perform,
record or publish it, and use or sell it commercially.
A popular rule of thumb is that all works created prior to 1923 are in the public domain. Some
examples are traditional, religious and classical music. As with all rules, however, there are
exceptions. This general rule does not address unpublished works, extensions, and a variety of
other exemptions. It also does not address arrangements of public-domain work, which may be
copyrighted even if the original work falls in the public domain. A good example of this is the
song “Jingle Bells,” which was originally written by James Lord Pierpont in 1857.
The original song is in the public domain. However, there are dozens of versions of “Jingle
Bells,” so you need to check whether the arrangement you decide to use is copyrighted. When a
public-domain song has been rearranged, the new arrangement can by copyrighted and protected
under U.S. copyright law. One example is the popular Christmas rock version, “Jingle Bells Rock”
by Bobby Helms. This is a fun, upbeat version of the popular tune and a standard on Christmas
compilations. Or there is the Brian Setzer Orchestra’s published arranged version that replaces
“one-horse open sleigh” in the first verse with “’57 Chevrolet.” Together these new lyrics and its
big-band feel make the song a classic licensing favorite for special products and contemporary film
scenes. This is just one example of many where it is important to do some digging when using a
seemingly public-domain song in your film. If you include the song with the mistaken assumption
that it is in the public domain, the copyright holder has grounds to sue, or issue a cease-and-
Another random document with
no related content on Scribd:
Abb. 13 Die Hoflößnitz Eingang zum
Festsaal
Aufnahme von J. Ostermaier, Dresden-Blasewitz
Müde vom vielen Schauen gönnen wir uns eine kurze Rast unter
den alten Kastanien der geräumigen Aussichtsterrasse, die
zwischen dem Hoflößnitzer Herrenhause und dem gemütlichen
Weinschanke liegt, der sich in einem der alten Hofgebäude
eingenistet hat. Zu einem Fläschchen Wein oder wenigstens
Schoppen wäre schon der Durst vorhanden. Ob aber auch die
nötigen Billionen, ohne die heutzutage niemand an so etwas denken
darf? Mag die durstige Kehle dursten! Dafür trinkt das durstige Auge
die Schönheit, die der Blick auf die liebliche Lößnitz zu unsern
Füßen bietet, in vollen Zügen. Ein andrer Blick wieder, als vom
Jakobstein über Wackerbarths Ruhe, die aus der Ferne noch einmal
zu uns freundlich herübergrüßt, aber auch bezaubernd schön in
seiner Art. Der um die Vervollkommnung des Lößnitzer Weinbaus
hochverdiente Johann Paul Knoll, der »erste Winzer der Lößnitz«,
dessen Bild in der Schankstube nebenan von der Wand
herablächelt, durfte schon mit Recht singen:
Abb. 1 Grundkarte
Details
Geldknappheit ist durchaus keine neuzeitliche Erfindung! Anno
1675 hat ein »Wohlverordtneter Cammer-Juncker, auch Ober Forst
u. Wildtmeister … vor eingelieferte Hirsch Wildts und andere Heuthe
auch Rehe felle und anders (Wölfe sind mehrfach noch genannt!)
noch 496 fl 2 gr an Jägerrechte zu fordern«. Er bittet, wenigstens die
Hälfte ihm zu gewähren – die Forderung betraf die Jahre 1670–
1675!! Treue Dienste müssen aber doch belohnt werden! Ist kein
Geld da, dann eben auf andre Weise! Und so war denn der Kurfürst
auf den Gedanken verfallen, sein Waldgebiet dort zu opfern, wo es
der Wildbahn nicht schädlich war: er verlieh an Stelle vielleicht sehr
dringlicher Gehaltszulagen ein Stück derartigen Heidebodens – als
Weinbergsgelände! Die Karte (Abb. 2) nennt Namen und Stand der
Bedachten: Forstleute und Amtsschreiber, Bürgermeister und
Kammerdiener, alle werden fast gleichmäßig bedacht: zwischen vier
und sechs Ackern schwankt die Größe der »Neuen Weinbergstede«.
Die Karte zeigt übrigens auch, wie der Kurfürst gleichzeitig die
Gelegenheit benutzt hat, sein Heidegebiet abzurunden: »Diesen
Feldwinkl treten die Zwantzig Personen von Rädebeil vnderthenigst
ab! Zu ergäntzung dieser heyden ecken!« lesen wir unter anderem
im nordöstlichen Teile der Karte – sie ist umgekehrt orientiert wie
unsere Karten! Seit 1627 hat sie geruht – zum ersten Male wird sie
hier abgedruckt – im Dresdner Hauptstaatsarchiv fand ich sie (Loc.
38525, Rep. XVIIIa, Dresden 185), eine Zeichnung des Balthasar
Zimmermann, des kursächsischen Markscheiders, des Vetters jenes
berühmteren Mathias Oeder, dessen Heidekarte von 1600 bereits
Erwähnung fand.
1
2
4
5
7
8
Gez. v. M. Retzsch Lith. v. E. Otte. Gedr. v. E. Böhme.
Abb. 1 Winzerzug