(Existing) Music in Productions – Introduction
Music may be the unsung hero (pardon the pun) of film and television productions. From short films to full length pictures, from web series to TV series, and everything in between; music more often than not plays a vital role.
For a producer seeking to obtain music for use in a production there are three main options:
- To license existing music from a musician/band;
- To commission the recording of new music (from an individual song to a complete score); or
- To license music from music libraries and catalogues. This blog’s focus is option (1): licensing existing music.
The Two Types of Rights
To feature music within a production you must, at the very least, obtain the following two necessary rights:
- The master use right (typically attained through a “master use licence”) which is the right to use a specific sound recording of a song/composition; and
- The synchronization right (typically attained through a “sync licence”) which is the right to use the underlying composition.
To use a piece of music, you must first obtain permission from the rightsholders. This includes everyone who controls a share of the recording (for a master use licence) or the composition (for a sync licence). In Canada, where the rights are held by multiple people, any one of them can prevent the music from being used by the others. This includes preventing the others from issuing master and sync licences.
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Who Provides These Rights?
Master Use License
A master use license is granted by the party or parties who own or control the rights to the recording. Independent artists generally own their own masters and are in a position to make those decisions. An artist signed to a record label generally does not control those rights, which are held by label; however depending on the label’s deal with the artist, the label may require the artist’s prior written approval.
To figure out who controls the rights, ask the artist or label directly, or contact one of the artist’s representatives, such as their manager or lawyer. Sometimes this contact information is easily available on the artist’s web site or Facebook page, and sometimes you will need the help of others to find it.
Sync License
Writers control decisions about the use of their compositions; that is, until they give those rights away. A writer is “self-published” – meaning they are their own publisher – until another music publisher gets granted such rights.
The publisher is the person or company who must grant permission for the composition’s use in a production. For example, if I write a song and don’t have a deal in place with a publisher, I control my own publishing. If I have a publisher, that publisher likely controls the publishing rights in my composition. If I write the song with Jimmy, and if neither Jimmy nor I assign publishing rights to anyone else, Jimmy and I jointly control the publishing rights.
To figure out who controls the publishing rights, one option is to search for the composition in the SOCAN repertoire which lists the composers/authors and publishers, if any, for many compositions. Sometimes, if there are multiple people and companies listed on SOCAN’s repertoire, one of those people or companies controls the decision about the use of the composition.
By way of further example, if Jimmy and I co-write a composition, and don’t have publishers, only Jimmy and I will be listed in the SOCAN repertoire. 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 use and the fee. The information on SOCAN’s website is available to anyone.
Fees
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.[1] A common related term is “sides”. Each of the master use and sync licenses are commonly referred to as a “side”. So, if you receive a quotation for the use of a song and master as being “$500 per side”, then the total fees paid for licensing both sides of the track would be $1,000.
We are often asked by producers how much they should pay for the master and sync rights. The answer we give is that prices vary drastically across the industry – but generally speaking, the higher the budget of the production, the higher the fee. Also, if the production is going to air on TV (ideally a lot), producers should remind rightsholders of the money they can receive from performance rights royalties through SOCAN and its partners around the world. If the program is successful these royalties may exceed any upfront fees.
We are often asked by musicians how much they should request to license their master and sync rights. Musicians should consider asking for payment on a most favoured nations basis, meaning that what they receive will be at least as much as what is paid for other music used in the production.
Song Covers
You may choose to use a “cover” of a song rather than an original recording. This may be because you want a new take on an existing song (e.g. a song that features a woman vocalist that originally featured a man). It may be to save money. If you want to use a popular song, but can’t afford it, one option may be to pay a lesser amount for the right to use a cover recording. This would mean you pay for the sync rights to the original composition, and for the master rights to the cover recording. There are various ways to get a cover recording: from hiring a musician to finding a cover online.
Practically speaking, where the owner of the music publishing and the master recording are related or “friendly” to one-another, the music publisher will often refuse to license “sound-alikes” in order to ensure the master owner gets paid for their side. There are even cases where a performer owns or has approval rights over the music publishing in a hit that they have “re-recorded” (think Taylor Swift), and they will only ever license the music publishing if the licensee also agrees to use the re-record of the track.
Grant of Rights
It’s important you get the master use and sync rights in perpetuity (forever), throughout the universe, in all media.
If your rights don’t last forever, you must go back to get more rights if you want to exploit those rights at a later date. It will add a complication with your distributor if you don’t have the music rights in perpetuity.
If your rights don’t cover the “universe” – for example, if the rights are limited to a certain geographical area – you may need to go back to get more rights if you and your distributor want to exploit the rights around the world. It will add a complication with your distributor if you don’t have the music rights throughout the universe.
If your rights don’t cover “all media” – for example, the rights are only for use on the Internet – you will need to get more rights if you want to exploit the rights in other media, such as video-on-demand. The rights should be granted for all media “now known or hereafter devised (invented).” Invariably, the future will produce new forms of distribution that are presently unknown, and your grant of rights should anticipate such future developments. For example, a long time ago if music rights were provided to a producer for TV only, the producer would need to go back to the rightsholders if the producer wanted to distribute the series on DVD, and nowadays for streaming, and much more.
(Existing) Music in Productions – Conclusion
This process has the potential to get more complicated. The more players there are involved and the higher the profile the recording and composition the greater likelihood of complexity. One way to navigate these waters is to engage a music supervisor to help you get the rights needed for a price you can afford.
If you need ever assistance or advice regarding the concepts discussed above, please let us know and we would be happy to help.
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© 2022 Edwards Creative Law, LLP
Updated to April 11, 2022
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
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