Using music in films: A guide
For a newcomer to the business, working out how to legitimately incorporate music in a film can be a bit confusing. This page will attempt to make it a little less confusing. But not straight away and not completely.
Who do I have to contact if I want to use a piece of music in my film?
The simple answer is the rights owners. This isn’t necessarily the artist or the composer although somewhere along the way they will have to give their approval.
The easiest kind of music to use is, ‘Library Music.’ It is usually classified by genres and theoretically can supply the right background music for everything from, ‘Joan was walking down the street minding her own business when a rattlesnake suddenly emerged from dustbin,’ to, ‘the heavy traffic was suddenly halted by the fire engine pursuing the out of control chieftain tank down the steep San Francisco street.” You try and find it though…
Library Music is free or available for a nominal fee providing you credit the rights owners. Producers of library music make their money when their music is broadcast. Broadcasters, (not filmmakers), pay the local collection society every time a piece of music is played on radio, TV etc.
Well that’s simple enough.
Actually it isn’t. But as a film maker it’s probably as much as you need to know. However there will be a licence agreement to sign when you use library music so make sure you read it properly to make sure there aren’t any restrictions that will cause problems later on. However if you think you are interested in collection societies or broadcast royalties read the next bit. You won’t be interested for long.
Collection Societies and Regional variations
Each country has at least one collection society. It is their job to collect fees and royalties from music users and pay them through to the rights owners. For example if ‘Ghostbusters’ is shown on British TV the Performing Rights Society sends the TV station an invoice for the use of the theme tune. In this case they pay it on to the ASCAP which represents Ray Parker Jr. in the United States and eventually about a year later with a following wind a few dollars percolates down to him. (If you are another publisher reading this, of course it’s not so simple by any stretch but we want people to stay awake don’t we? And that’s without even mentioning Huey Lewis). Other examples of collection societies are JASRAC in Japan, SABAM in Belgium and Gema in Germany. Every country has one in the same way everyone has a digestive system, what comes in must go out. The similarities do not end there.
If you think it’s all incredibly complicated and involves billions of dollars changing hands, you’re right. If you suspect it’s also incredibly slow, inefficient and that millions of dollars don’t reach their proper homes you’d not be far off the truth either.
But if everybody is agreed on the same system then at least there’s some kind of paper trail?
Aha! Good idea. You mean the way all the governments and all the societies agree on how long copyright term lasts, the broadcast rights they collect on and the amounts collected not to mention the commission the societies charge and whether they hold any back for cultural or benevolent reasons. Trust me, for the sake of your sanity you really don’t want to go there.
What if I’m interested in a particular piece of music by a particular artist?
In this case there are actually two sets of rights you need to be aware of. The first is the copyright in the recording, (sometimes called the Master Rights), which is usually controlled by the performing artist or their record company. The second is the copyright in the underlying composition, (this is called the synchronisation right), which is controlled by the writer or their publisher. It doesn’t matter if the people who recorded the song also wrote it; you still have to clear the two sets of rights separately.
So how do I find out who owns the copyright in the recording?
The way you can tell is to look at the label or packaging. There should be two lots of credits. c in a circle is the copyright owner of the sound recording and p in a circle is the publisher of the sound recording. Often this is the same but doesn’t have to be. To take a slightly complicated example, if Armadillo Records in America records an album in 2002 and licenses to Bandicoot records in the UK in 2005 the credit would read.
P Armadillo Records 2002
C Bandicoot Records 2005
There are two types of publishing going on here. It’s a mind fuck but that’s the way it is and it’s not going to change so you have to get your head around it. In this section we are talking about the copyright in the sound recording. Think of it in the way a book publisher works. They put out books in the same way a record company puts out records. We deal with the how the music publisher represents the writer of the composition a few para’s down in ‘So who owns the copyright in the compositions?’
So who do I need to approach to use the right in the recording?
The sensible answer is the original record company. It’s sensible because most of the time the right granted to the licensee will be the right to release the record only. So the original rights owner would retain the right to grant the use in a film or TV programme.
However the sensible answer isn’t always the right answer. Apart from the habit that few in the independent sector read the contract properly until it’s too late, (and even then they have to find where they’ve put it), they may well have granted certain local rights while retaining world-wide rights.
So the real answer is check with both the original record company and the licensee?
Bang on! At least with both of them reading the contract you’ve half a chance of finding out the true state of affairs.
I’ve just had a horrible thought. What if the original owner has granted local rights in a dozen different territories? Do I have to contact each of them separately?
Yep. Doesn’t it make you nostalgic for the days of silent films? If you’re lucky the original rights holder will control the lot and in the Master Use Agreement there will be a clause indemnifying you if this is not the case.
How can a record company be a Publisher? This is more complicated than I thought.
You bet. Remember that we are talking about the copyright in the recording here and not the copyright in the composition. So the p for published by in this case refers to the publisher of the specific recordings. The publisher in this case is the person or company that releases the physical recordings on disc. i.e. the record company.
Confused? You will be…
So who owns the copyright in the compositions?
That will be the Publisher. (Not the publisher we were talking about just now, that was the record company).
The Publisher in this case represents the writer(s) of the songs. These may be the same people as the artist but it doesn’t matter – they have to be treated as if they were unrelated. If the writers are unpublished, (usually denoted by the words copyright control in the UK but let’s not get into that one), then you have to approach the writers directly. Otherwise you have to approach the publisher(s). You can find out if a song is published by calling the MCPS (020 8769 4400).
Unlike the owner of the master rights there may be more than one publisher. Each writer can be represented by a different publisher. You have to call each of the publishers independently.
Hang on there.
This sounds like a minefield. Isn’t there someone who can do this for me?
There are rights clearance people but of course they want to be paid for their services. Their argument is that they already have the relationships with all the record companies and publishers so they can save you thousands. Not much help if your budget’s only a few hundred or even less.
We have a Music Supervision arm which works with the Director and Producer, (ideally from the early stages), to help find the right music for a film. We also have a clearance department which can smooth the administrative path and handle all the paperwork. (Contact us at 020 7485 5077). They have excellent working relationships with both major and independent music companies. We try to offer value for money but please be aware neither are free services.
So how much will it all cost anyway?
Take that piece of string you weren’t sure of the length of. Tie a knot in it and loop it over that hook in the ceiling. Actually there is a formula of sorts. An independent film which uses a reasonable amount of music would be expected to set aside 10 to 15% of its budget for music usage fees. The theory’s fabulous. This presumes that anyone making a film is so in control of the budget that there’ll be exactly the right amount left over. The music is usually added at the end. What a coincidence! That’s the same time that you add everything up and find that you’ve already gone over budget.
The films no good without music and I’ve managed to raise a bit more!
Not so great…
I called Megapolybastards Publishing Ltd. about this song that’s artistically and creatively the lynchpin of the whole film but they won’t let me use it for less than the blood in my grandmother’s veins.
Not every piece of music is equal and as rights owners we are aware of the fact and we do make allowances. For instance we accept that the music used in the opening and closing credits are usually seen as the more important and they will expect a bit more. We will even acknowledge but with more reluctance that there may on occasions be a difference between foreground and background use.
Maybe the rights owner will let me have it out of goodwill, for the kudos of being in my groundbreaking film and the additional exposure will help sell thousands of records.
Well no. Go to the cinema and listen to the songs on the soundtrack, check out the background music on the TV shows. And what about those mind invading tracks that are so integral to advertising campaigns? You can’t move in the charts for them can you? Actually it’s rarer than you think a track makes made it into the top 100 directly because they were in any of these major films, national TV shows and advertising campaigns, (well maybe one but it’s an emo band that you’ll never hear from again – and be very thankful).
So how do I get around that one?
Let’s look at this way. If you needed another fifteen minutes of footage to get the ending right you wouldn’t plead the creative imperative with Kodak would you? If you needed to re shoot a scene with an actor who had moved to Aberdeen you wouldn’t expect him to pay his own train fare down or wait until the next time he was next passing through. You’d squeeze an extra little bit of funding from somewhere or other.
Is there a conclusion?
Musicians also eat, catch buses and do laundry. Once upon a time they even sold a record or two to help with the rent but nowadays people just steal off the internet. So if you want them to keep making music you can use in your films then it’s best to think about them from the start.
If you definitely want to use a particular piece of music, whether it’s one we control or if one chosen while we are supervising your film, we will try our best to find a way of solving the problem. There are several accepted methods of mitigating the immediate financial blow but please remember we have to find a balance between the needs of the film maker and the need for the musician to make a living from their craft. If we can’t find a way of being fair all round then we recommend you hit the library music companies.
Please note a lot of labels and publishers, like us, will permit a gratis license for non commercial exploitation. Therefore you can use the tracks at no cost provided that there is no commercial exploitation of the film. This means that if you sell the film to television or a distributor then you would expect to enter into a normal synchronisation licence for use of the original copyright and the master rights in the recording. Obviously without knowing what kind of deal you may do, it is impossible to negotiate beforehand. It would have to be done in good faith at the appropriate time.
If in doubt ask (nicely) but never never never use a piece of music without getting permission first. It’s not polite, it upsets people and could cost you a packet.