Music Licensing for Films and Games
About The Book
Step by step guide to help to license music to be included in films or video games
Case studies of music licensed into popular movies and video games
Q&A to help with most frequent questions
Q: Do I always need to ask for synchronization and master use licenses for my film?
A: Yes and no. You will need a synchronization license every time you want a song that has a composer who is not covered under the public domain (more on the public domain later). He/she who wrote it, owns it. Plain and simple. There is no way to get Visage’s “Fade to Grey” without getting the license from Billy Currie, Chris Payne, and Midge Ure (its three writers). They may all be represented by one single music publisher that has the power to decide or, in the worst case, each one of those three writers has his/her own publishing company. Then you’ll be talking to all three instead of just one entity. You’ll have to find this out yourself (though again, the record label should be able to help you). The master use license will only be needed if you want to use that particular recording of the song. If you decide you can play it yourself (making your own version of the song to use in the film), then you will not need the master use license, since you are making your own master. But listen to the song… will playing the song yourself have the same effect as having the master? Only you can decide. Plus, in some cases, the composers will demand the right to approve your version (in case you want to skip an expensive master) and you may end up having to use a master that has been already approved. Be careful.
Q: But the master is so protected and expensive. What can I do?
A: Here’s a tip: most artists are contractually forbidden (by the record label, when it owns the master) to re-record that song for, say, twenty years. After that, the artist can (and many do) re-record the song, imitating in great detail the master from 20 or 30 years ago. To most people the differences are not clear (although they exist). This is particularly true with one-hit-wonders from the 60s, 70s or 80s. Tina Charles had a disco hit in 1976 called “I Love to Love (But My Baby Loves to Dance)”. In recent years, she re-recorded the song, thus creating a new master from it. This one, she probably owns, and it may cost less than the original 1976 version if you want to use it. Are there audible differences? Of course, but lots of people won’t notice the difference (only your bank account will!). Another tip: check YouTube. Those newer masters are there, and you can compare them. They were not created specifically for films. Instead, they were created for cheap album compilations you’ll find in petrol stations – something like “Big Hits from the 70s” – where a sneaky record label will mix some 12 songs on the same CD: one third original masters, one third poorly recorded live performances, and one third these “recreations”. Some of those compilations will advertise “original artists” – which is true, however, many of those tracks are not the ones a hardcore fan would be expecting. Most people don’t care and are happy just to pay $4.99 for it (they wouldn’t be that cheap if they only used the original masters). You can take advantage of this. Also, you can check professional copycat bands who are notoriously famous for cashing in on the need for recreations of certain masters. This is a business that thrives in particular when it comes to older songs (up to the 90s). If you cannot get Adele to sing in your film, you can check several Adele-like singers who specialize in making recordings that sound like her. There are dozens! If we are talking about jazz, for example, keep in mind that several great names like Frank Sinatra, Ella Fitzgerald, Duke Ellington, and John Coltrane (to name just a few) recorded multiple versions of certain songs. Many times, you can find a master that may not be the one you wanted but is equally as good (and well recorded). There are lots of options to explore here.
A: Compositions (not masters) enter the public domain (in Europe) 70 years after the death of the composer. In America, it’s 50 years; in some other countries, 75 years. If we are talking about two or more composers, this time only starts once the last of them dies (meaning that for the Lennon/McCartney catalogue it will only start counting after Paul dies). This means that Mozart, Bach, and Beethoven are already in the public domain. Public domain comes from a simple and practical principle: it is reasonable that the heirs of a creator should benefit from their parents’ and grand-parents’ creation. However, four or five generations after the composer, we can be talking about 100 descendants. It would not be possible to try to obtain clearance from all of them. The public domain solves this problem; after the above period(s) of years after the composer’s death, you can record it, you can play it yourself, you can use it. It’s public domain.
However, it is not that simple! You will always need to get a master use license for Mozart’s Piano Concerto unless you own the orchestra and can produce your own master (and in that respect, many labels specialize in competitively priced orchestral masters that can be licensed for very reasonable prices – just do some research and you’ll find them). But, more important, it is an illusion to think that a Mozart piece is really entirely free, because if you buy the sheet music and play/record it yourself on your piano, there are changes in that sheet music that have an author, so you will have to pay the publisher that produced the sheet music you will be using. Keep in mind that Mozart did not write his piano concertos for the pianos we have today. The same thing happens with other instruments: they have changed in form over the centuries, therefore, the music sheet had to go through adaptations and corrections (i.e., an arrangement); and, regardless of if they are small or big, they had to be done by someone, and you will be using those changes. However, if you play it from memory, based on the general melody instead of the precise music sheet, then you won’t need to pay. The credit “Author Unknown” means that a particular song does not have a verifiable author. Certain songs sometimes have an unknown origin (especially very old ones). Such cases are more complex than they appear, especially if there are lyrics attached. Why? Because “unknown” does not mean “no author”. It only means that the origin has not been investigated (are the lyrics as old as the music?). You should be very careful here, since these cases need thoroughness, because the minute you put that song in your film, all types of claims may appear.
Arrangements, simplifications, orchestrations, instrumental accompaniments, adaptations, transcriptions, translations of lyrics – all can have a copyright!
Q: But I saw this awesome website that says the music is free.
A: It is free under certain conditions. You must read all the fine print to make sure you can (a) put that music in your film and (b) make money out of your film. Most of the free stuff on the internet is free only for non-commercial use. Once your sales agent or your distributor asks for the legal documentation, everybody realizes it’s not free. You do not want to be in that position. So, read the conditions carefully. Plus: do not trust the internet. Many sites claim to have free content, when actually they are just disseminating content whose ownership they don’t know (and indeed don’t care). The names and brands behind those sites make all the difference here. When the BBC puts something online for free under certain conditions, you can read those conditions and be sure that the BBC is the owner of that content and they can do what they are doing. The same thing with Getty Images, Adobe, the BFI, Pathé, or well-known American/European content owners. What they have, they really have, and when they give it to you under certain conditions you can trust them. For other sites, beware. Remember that the internet is a labyrinth of lies just for the sake of likes and shares.
Q: I’m not the best person to find the best solution. What should I do?
A: You hire a Music Consultant or a Music Supervisor. That person usually has encyclopaedic knowledge of masters, artists, labels, publishers, and musical styles. Plus, he/she has all the connections and relationships that are guaranteed to get you the best deals for your film… and he/she can and will find you a great version of Kurt Weil’s “Bilbao Song” that will make perfect sense for your scene. Hiring a Music Supervisor can be a must, especially if you need a large number of songs. Producers frequently do not have the time nor the knowledge to handle this issue by themselves and feel they need someone to handle such an important area. You should always consider this option.
A: There is never a too early time to start thinking about what music you will need. Considering the time it takes to negotiate and obtain the clearances you’ll need, and the potential disappointments that will lead you to plan B, C, D, and so on, the best strategy is to start defining what you want for music still during pre-production or even during development if possible. Better yet: try to pre-clear the songs you like and feel you probably will want to use. This way you’ll know costs and conditions. If you already know the cost of the music you’re likely to want, your budget becomes increasingly credible.
A: Only you can answer that question. And the answer may evolve as the project itself evolves. Again, the earlier you face the issue, the better prepared you will be when the time comes to make final decisions that cannot be undone. Remember you’ll have to get it right the first time.
A: Both are valid options. The problem starts when the film asks for the first while your budget only allows for the second. Each of these options doesn’t sound the same. But, depending on the project, the digital keyboard may be a great option. Or not. The key lesson here is to discuss the issue with the director and the composer with due regard for both the film’s needs and your budget possibilities. Pragmatism is the key word here. However, be careful when using cheap Digital Audio Workstations (for music creation) because sales agents and distributors who have already watched too many low-quality films tend to know those sounds by heart and will immediately know that you have used them – and this may affect the way the market sees your film.
A: There are several companies in the market that offer library music for a great price. There are several issues you need to reflect upon before going for such a tempting option:
1 – Library music is not tailor-made for your film. It may not be as precise as the music that was written specifically for the film.
2 – Library music is not exclusive. Supposing you find the perfect music for your film there, it is possible that the same music has been (or will be) used for selling cars, sausages, tomato sauce, vacations in Italy, or worse: the music is used by another film – and a cheap, bad one! Over time, people may watch your film and feel that they heard that music somewhere else. And they’d be right.
3 – Carefully read the terms that apply to the particular library music you are using. They may not include all the rights you need. Some can hide additional costs just in case you remember you need something that’s not covered.
4 – When you use too much library music, the market value of your film may drop. From a sales and distribution perspective, library music is a cheap solution that does not add the value the market expects music to bring into your project. Tip: discuss this issue with a sales agent. Music is of incredible production value and too much library music may have a negative impact on your film. Try to listen to the feedback provided by sales people regarding your film’s music.
5 – Even big, expensive Hollywood films occasionally use library music. However, a good strategy seems to be to only use library music for moments when the music is not particularly important or discernible. If that’s the type of scene in question, why spend money on Queen or Bob Dylan? If it’s very brief, if the volume is too low, if the setting is a noisy one or simply if you feel no one will know the difference, then library music could well be the right answer.
If the library music can be modified (if the license you’ll get allows you to modify it) and you can change it so drastically that it becomes unrecognizable and still it serves your film perfectly, then it seems you have a win-win situation. But that’s easier said than done.
Because we are talking about art and creativity, there are always exceptions here. George A. Romero’s DAWN OF THE DEAD (1978) uses musical cues from the De Wolfe Music Library with great results. One of those songs, entitled “The Gonk”, contributed immensely to the success of certain scenes and became forever associated with the film.
A: Yes. Some companies will provide music services and will even cover some (or in some cases, all) of your funding needs for the music they produce. They have their own composers (and many good ones, actually) and the services they provide can be very good. We will not give you names because we prefer to not do advertising here, but you can find them on the internet. This is how it works, roughly speaking: you bring them your project and if they like it, they will let you select one of the, say, ten high-profile composers that work with them. Then he/she will write the music you need, and the company will even cover the costs of recording. Music kind of stops being a problem since they will join your financing plan covering most costs regarding music. Sounds great? It is. However, there are a few typical catches:
1 – That music will be in your film with a limited term. In many cases, you can have it for two years. After that, you need to pay license renewals (both synchronization and master).
2 – You do not own nor control any of the music that’s in your film (even if it was composed for it). The music is still theirs. Your film is just using it. They will monetize it afterwards however they see fit.
3 – You guessed it: the real goal of these companies is to use your film as a platform for launching their music and exploiting it after your film in any way they want. Plus, you will start paying if you want to keep the music after a certain number of years.
In a way, this type of service is several steps above basic music libraries since the music is composed by great people, it’s cheaper for you, and it is much more appropriate to the musical needs of your film (although it is still debatable whether the writing is really as dedicated as if you had your own composer). However, it is still a service that is not entirely to your benefit, so it still isn’t the same as having your own composer making music just for you (and having those rights). However, you should talk to them and see what they can do for you. Chances are you can negotiate a great deal or better terms. Try it!
A: You can’t. Although it is a big cliché, every film is unique, and all music is unique. Every analysis made by a record label that centres around whether your film has what it takes to deserve a master use license is unique. It’s like we said before: two nearly identical works of Art are auctioned separated by only 15 minutes. The winning bid on each one won’t be the same, since the amount paid for the first will increase or decrease the value of the second, even if they are nearly identical. Subjectivity and intangibility are fully at play here. With music and films, it’s exactly the same. Precious tip: make them like your film.
The advantage of working with a Music Supervisor if that they do this kind of work so frequently that they instinctively have a good idea of price based on experience. This means that if you ask them for the price of a certain Pink Floyd master, the number they give you won’t be too far off.
A: If you are talking about the different songs whose masters you are using, then the answer is “very unlikely” as record labels tend to be very conservative about letting their masters “out”. Are they all coming from the same record label? If not, who will release the album? You? That’s very unlikely. However, this is a discussion you can have with them. Regarding orchestral music produced by you for the film, the question is similar: who will release it and distribute it? Discuss this issue with the labels and see what they have to say about it. Making a film is complex enough; going outside your immediate area of business and producing an album adds another level of complexity.
A: This is the full answer to the question “what’s the price for music?”. Music Supervisors have something we, producers, don’t: experience. They know who paid how much for a similar song from the same artist for a similar film six months ago. So, they know the price of licenses, musicians, and all the things for which there are no written references. Practice makes perfect and they’ve got it. Because they frequently know and talk to the right people, they are in a better position to negotiate the best deals. Because of their networking, they also get favours we don’t; and – very important – they have early access to new (and affordable) bands and artists that are being groomed to become big; and that can have an impact on how relevant your film remains after a certain number of years, thanks to a scene with a great song by someone who did become a megastar, years after your film’s release. If there’s a person who is best positioned to get you the best value for your dollar, pound or euro, that’s the music supervisor.
Now a warning: just because person X is a musician or used to work for a record label, that does not make him/her an automatic music supervisor. Ask around for references if you need them. Better still, check recent films that had a complex list of songs and call the producer. Ask him/her about the music supervisor they used in the film. Chances are those music supervisors are the ones you need.
A: When this happens, you are basically putting your entire film (the money of your investors, the hard work of amazing people and their careers – not to mention yours!) in the hands of people you don’t control and couldn’t care less about you. Does this seem reasonable? Are you kidding me? However, there are times when, in a script, there is one key scene that really depends on an Elton song for the entire film to click. This is the recipe for a perfect storm. But (again), in Art, many times we do indeed have perfect storms in the making that result in full artistic and commercial triumphs.
If you feel you are about to face such a situation, there are a number of things you can do: if a certain song is that crucial to the film, it should be treated apart, with the care, urgency and respect it needs. In that case, you should dedicate an extra amount of time talking to those who control both the publishing and the master. Show them the project as it evolves, build a relationship with them. Make them love your film. Also, get a pre-clearance on that song – preferably when still at the script stage. Try to go as deep as possible, as early as possible, and as personal as possible into guaranteeing these licenses just to make sure you won’t have it exploding in your face when shooting comes and it’s too late to make any major changes to the script, or worse still: the whole film is already shot and you never imagined you’d get a flat “no”.
Q: But Elton is my friend and he can help me.
A: In many, many cases, this will not work. Many artists have lost control over their publishing catalogue (expensive drug habits, financial loss, creditors, divorce settlements, etc.). They may still get their share of the royalties, but do not have any say in the pricing nor the “yes” or “no” regarding licenses (they just cry on their way to the bank). Elton John, for example, said in an interview that he sold the publishing rights to his first five albums. This means he simply cannot control them. God knows what the case is with the song you want. Paul McCartney and Yoko Ono do not control the Lennon/McCartney catalogue; Sony/ATV does. They don’t control the masters either; EMI does. They just get their share of the money. That should give you an idea of how crazy this can get. Plus, if there are more writers involved and the master does not belong to your friend, he/she won’t be of much help unless your amazing friend offers to reimburse you the money you’ll have to pay for licensing. And we’ve never heard of that happening.
A: If you’ve got those licenses, you should ask the owner of the master to provide you with a new CD with the best/latest possible version of the song. Keep in mind that a song has many forms. There is the radio version, the single version, the clean lyrics version, the extended version, the 12” version, the Disconet version, the first CD version released in 1985 (using the vinyl master), the remastered version released on CD in 1993, the remastered version released in 2015, and so on. Chances are, the CD you gave to your post-production people is not the master you asked/paid for, nor it is the latest, nor it is the best-sounding source. It is fundamental that both you and whoever is licensing the master to you know exactly what master is actually being licensed. They must send it to you because it is in the best interests of all the parties involved that you get the best-sounding source available. Communication here is key.
Q: I heard that we can use five seconds of anything for free. Or a maximum of eight notes. Or three bars. Or [insert any measure here].
A: No. Some countries have provisions like this in their legislation. However, those laws are only valid inside the countries that create them. If you apply any of those provisions to your film, it will only be ok in that country. Be careful here!
A: In many countries, television channels sign agreements with collection societies that pre-clear a certain quantity of music for their use. This happens because the slow individual process of analysing and issuing specific synchronization and master use licenses is incompatible with daily TV programming. For example, an 8 o’clock news is airing a piece tonight about an 8-year-old boy prodigy who just graduated from the Sheboygan Conservatoire, and he likes to play Elton John in his spare time. The piece will show the boy playing “Goodbye Yellow Brick Road” for 10 or 15 seconds. The boy became news yesterday, the footage was recorded this morning, edited during the afternoon, and aired by dinner time. Because there is no time to get those clearances and because this happens every day, TV channels make blanket agreements with collection societies where, every month, the TV channel pays a fixed sum and can use, say, 400 songs/month from anything represented by the collection society (the exact terms of these deals vary considerably from country to country). Clearances are nearly automatic providing the channels keep track of all the songs used and send a weekly or monthly report to the collection society. There are also conditions like the impossibility of using the full song (or other such limitations). That’s why TV programming is so rich in content and efficient. However, this is only possible for certain TV programs made by TV channels. They rarely cover fiction (GAME OF THRONES, THE WALKING DEAD, SEINFELD, HOUSE OF CARDS, and TV movies are rarely ever covered by this type of agreement). However, TV channels use these agreements extensively and this gives people the misconception that if we all only use “X” number of seconds, we’re ok. We’re not. This practice (and some confusion about it) is, in part, at the origin of the previous question.
One common limitation to these agreements is that these “easy and automatic” licenses are only valid within the territory of that broadcasting. This explains why so many news videos we see on the internet are geo-locked and, therefore, unavailable in other countries. Even a global network like CNN cannot show 100% of its content outside the USA exactly because of the territorial limitations to these agreements.
A: First, the licensor of that footage should be able to tell you immediately what rights it does not have. However, this is a pretty common scenario: let’s imagine that the footage in question is an interview with a famous singer who will, at some point, stand up and sing. Depending on the agreement between the artist and the network in 1979, you may need to ask for a permission from the singer (since it’s his/her image, and back in 1979, he/she did not give the network unlimited power to license his/her image beyond that programme and its natural reruns). But then, there’s the singing moment. If the singer is simply doing a lip-synch playback (from the record he/she was promoting in 1979), you will have to get a license both from that master and the publisher (synch). Why? Because both are “embedded” inside that 1979 TV programme. Basically, you’ll be relicensing the music contained inside that 1979 footage you want to use for your use. However, if the artist is singing live with his/her band (not a playback), then you can skip the master use license (since that recording belongs to the network). Occasionally, you’ll find some odd scenario where the singer is singing live (not lip synching), but over an instrumental playback taken from the appropriate master. In such a case, you’ll still need to get a master use license since (although it’s just an instrumental) it’s still the master from the record label. Now, if he/she sings a medley of different songs… well, you know…
But, again, the licensor should know exactly what you’ll need.
There is also a technical aspect that should not be overlooked. Footage from old TV shows frequently have monaural sound or simply poor sound quality by today’s standards. Eventually you will need to license masters to replace or mix with the sound that comes with the footage. You should discuss these issues with your sound post team as well as the broadcaster. It is possible that, back in 1979, the broadcaster recorded the sound separately and has a better-quality tape archived somewhere. Again, communication is key.
A: This is a common question. Someone on vacation in Laos hears a song, gets a pirated CD, and no-one seems to be able to even identify who’s singing. The first thing we must understand is that if a song exists, it must have been written by someone. In the same vein, if a master exists, it must belong to someone. It is our job to find that person/company. Period. So, the first advice should be “don’t use something you cannot clear”. Once you use it without the proper licensing, you put yourself and your film in a very fragile position. And the bigger the ambitions you have for your film, the more you’ll have to guarantee that all the clearances exist, since the best sales agents and distributors will ask for your chain of title (where the licenses should be). Put the song on YouTube, Facebook or Twitter and ask for help and information. Go to a neighbourhood where you can find people from Laos and play the song to them. Contact the Laos embassy and ask them for help – do anything (really), but make sure you can identify that song (and get the clearances). Some people will advise a different solution if you cannot identify the song:
1 – Post the song somewhere and ask for people to identify the artist.
2 – Put an ad in a newspaper with a link, ask for help identifying the song, and say you want the owners of that song’s rights to contact you because you want to use it in a film.
3 – Open a bank account and put the same amount you paid on average for other songs in the film.
4 – Use the song in the film and wait for the owners to contact you.
5 – Pay them the money.
That could be a possible solution. However, you may still end up in court and even if the judge agrees that you acted reasonably and gave it your best effort, you still used something that did not belong to you without permission. Only God knows what will be demanded of you in such as case. The only foolproof strategy here is this: if you can’t clear a song, always try to get another.
A: Putting a camera somewhere means a conscious decision to record what’s in front of it. Even when you cannot control what is happening in front of the camera, in reality, you can always take measures to ensure there’s no Beatles playing in the background. If you are interviewing people in a mall, ask them to cut the Engelbert Humperdinck, James Last, or Paul Mauriat. Better: if they must play something, provide them with music you already cleared and ask them to play it as you shoot. If the places where you want to shoot are heavy with music, take steps to ensure the music that is played is already cleared (again, provide the music yourself). If you look hard, you’ll realize that there are very few occasions when you cannot really control the music. It takes work, it’s true, but it will save you some serious headaches. Beware: some people will tell you not to bother with music in documentaries because you cannot control reality. That’s silly and irresponsible. Tell it to Barry Manilow’s lawyers. They will laugh at you. Don’t expect to skip paying for someone else’s music under the excuse that reality chose to play U2 (or anything) while you were shooting. Sony Music lawyers eat such people for breakfast. Plus, you will be damaging your film’s chances later on at distribution time – because the best sales agents and distributors simply won’t take the risk.
A: Yes, occasionally the artist whose music you want will die. If you are lucky he/she does not control his/her publishing nor the masters, so business will go on as usual. Sometimes, when they die, it becomes a mess. We know people in Europe who were having trouble licensing David Bowie songs in the six months after he died (though eventually the clearances arrived). Prince died without a will and people (one sister, five half-siblings and several other people) started fighting over his estate immediately. If we are lucky, his publishing catalogue and masters are safely being handled by an independent company and will not be affected by family feuds. If we’re unlucky, the fighting over his estate will affect your ability to get a clearance for years to come – one more reason to start working on those clearances early. Research!
A: When getting a master use license, make an estimate and then put in a little more just to be safe. If you happen to realize you used less than this estimate, then try to ask for a reduction to the price asked, since, well, you ended up using less. It’s not guaranteed to work, but you should try.
Make sure the opposite never happens: “we agreed on a price for 15 seconds, but I ended up using 25. Is that ok?” It isn’t.
Q: How many options I should consider for music?
A: When you start development, make a list of the music you imagine will be needed in the film. Now go and do your research and see how much each piece costs. Found something scary? The good news is that you are still in development and you should be able to budget your music in a way that is realistic and still fulfils the film’s needs. From then on, keep an eye on the evolution of the project and its impact on your music budget. For every song you think you want, make sure you have alternatives that are adequate for the needs of the film, are available, and are cheaper. Because you do not control other people’s music, always have a plan B, C, D and E.
A: Temporary music has this problem: we use it freely because we know it’s temp. But as we use it (sometimes for months), we begin to love the way it suits the project. Yes, the director and the editors did walk into a trap they created. Now they can only imagine Led Zeppelin on the scene and nothing else works! There is no easy solution to this problem. They have to understand that temp music was just temp music and now comes a time where you can only get the music that is possible (unless you have the unlimited funds and personal connections that would allow you to get Led Zeppelin). It will hurt, but they must realize the nature of this trap if they expect to be able to free themselves of it and finish the film.
A: No. A trailer is a trailer; a film is a film. By obtaining the clearances for a song to appear on your film, the clearances are just for the film. Putting the song in a trailer means you’ll need to repeat the process all over again. Bear in mind that it will probably cost you more than it cost for the film, since the trailer will potentially be seen by a much larger crowd. If a trailer contains a portion of the scene with the song in case, your trailer editors will have to take the song out and find some clever way to make it work without it (luckily, trailers have their own music). The lesson here is simple: every teaser, every trailer, every “making-of-documentary” is – when it comes to clearing music rights – a different object, thus, a different license.
A: You can hire a consultant to check your Chain of Title or you can take out an Insurance of Errors & Omissions (E&O). Consider using E&O insurance to manage risk of liability. This is a special form of liability insurance that is used to insure against claims that may appear later during the promotion, distribution, and exhibition of your film. E&O policies typically provide coverage for claims like invasion of privacy, defamation, publicity, copyright (here we are!) and trademark infringement, wrongful portrayal, piracy, plagiarism, or unfair competition resulting from the alleged unauthorized use of titles, formats, ideas, characters, plots, performances of artists or performers or other material. The E&O lawyers will take a look at the whole film and verify if all the legal documentation is in order. By buying E&O insurance, your film is guaranteed to be okay for any sales agent or distributor. From that point on, should anything happen regarding rights (something that even the E&O people missed), you are covered.
A: Sampling is the new normal in contemporary music. However, the practice raises a number of questions when it comes to licensing for films and TV. Modjo has a song called “Lady (Hear Me Tonight)”, written by Yann Destagnol and Romain Tranchart, that contains a sample from Chic’s “Soup for One” written by Nile Rodgers and Bernard Edwards. This sample is now part of the master owned by Modjo. If you want to use “Lady (Hear Me Tonight)” in your film, when obtaining the master use license, try to understand what the conditions were under which the sample from Chic’s “Soup for One” ended up in Modjo’s master. Can Modjo license its master (containing a sample from another master and a different song from a different publisher) freely? When Modjo licensed the sample for inclusion in their song and master, did that license come with any limitations to what Modjo could do with the subsequent master? Keep in mind that the licensing of a sample (to an artist who wants to incorporate that sample into a new song) is a process that is similar to licensing that song for a film. Modjo needed the license from Chic’s publisher (for the song) and Chic’s record label (for the master use) – that’s how the sample could be included in their song. For Modjo (or any artist who wants to use a sample), costs of licensing a sample vary considerably. As a rule of thumb, the more popular, recognizable, and longer the sample, the costlier it will be. The artist who wants the sample can be charged a flat fee or a rolling fee payable according to certain milestones; for example, $200.00 upon getting the clearance, $600.00 if the song gets picked up by a major U.S. label and $1500.00 for every 100,000 units sold. The copyright owner may want to get royalties in perpetuity for other licensing, such as in the instance a producer (you) wants Modjo’s song in a film.
You have to make sure that by getting the clearance from Modjo (who controls their song’s publishing and master) you are not infringing the samples’ owners’ copyrights. It may sound overzealous to start from the song you want and look deeper into the whole sample licensing obligations, however, again, it is your film that may be blocked from distribution by a furious artist until everything gets sorted out. Plus, the current music scene is filled with a gazillion cases of sample issues.
Remember Danger Mouse’s “Grey Album”? So, ask the artists what the situations, obligations and limitations of the samples they licensed for use in their songs are and always try to get straight answers. Of course, reputable artists, when using samples from other works, tend to be very careful. It’s hard to imagine Beyoncé or Madonna being caught in sampling issues. However, one never knows the potential problems regarding samples used by big or small artists. History is filled with big names in trouble: Vanilla Ice, MC Hammer, and The Verve are just a few names that come to mind.
A slightly different scenario is the incorporation of a song inside another song (without the use of a master): yes, occasionally you will find songs where writers sample other songs resulting in new compositions. They mix their own lyrics with a pre-existing one. Finley Quaye recorded “Sunday Shining” for his 1997 album “Maverick A Strike”. However, the song, written by Quaye, incorporates several samples (portions) of Bob Marley’s classic song “Sun Is Shining” (written by Bob Marley). The credits of the 1997 song state Quaye/Marley and the publishing is split between the two writers. Using Quaye’s song in your film requires that you get clearance from both publishers, just as the credits suggest. Again, you should proceed with caution.
In 2007, Rihanna sampled Michael Jackson’s “Wanna Be Startin’ Somethin’” (from the legendary album “Thriller”, 1982) for her hit single “Don’t Stop the Music”. After the song’s release, she and Michael Jackson were sued by Camaroonian musician Manu Dibango, who claimed that the line “mama-say mama-sa mama-coo-sa” was taken from his 1972 single “Soul Makossa” without permission. Although Jackson admitted that he borrowed the hook for his song and settled out of court, Rihanna was inevitably dragged along for using the line without permission (from the rights owner). Rihanna asked for the sample from Jackson without knowing the line did not originally belong to him (or, if she knew, believed Jackson had it covered; he didn’t). When asked for the permission to be sampled, Jackson allowed such without asking for approval from Dibango. Although a film that had licensed “Don’t Stop the Music” would probably not be impacted by the case, a film producer may find him/herself being targeted in a similar case (especially if the film makes a lot of money or its profile grows). Angry rights holders will try to get money where the money is – or where they think it is.
All the examples above suggest that film producers must be careful and dedicate extra time to fully understand the nature and origin of the songs they are trying to license.
A: Most of the time, yes. If you want to use “The Girl from Ipanema” in your film, you must obtain clearance from an additional writer: Norman Gimbel (the writer of the lyrics of “Killing Me Softly with His Song”) who wrote the English version from a translation of the Portuguese version. But using the English version does not mean you can skip paying the Brazilian writer (for the original lyrics). You will still have to get clearance from Antônio Carlos Jobim’s (music) and Vinícius de Moraes’ (lyrics) publishers. Why? Because the English translation (even if it’s not literal) comes from the Portuguese version.
In a slightly different way, “My Way” (immortalized by Frank Sinatra) is the completely original English language lyrics written by Paul Anka from the French song “Comme d’Habitude”, written by Claude François and Jacques Revaux with lyrics by Claude François and Gilles Thibaut. Anka bought the publishing rights to the French song and scraped the French lyrics entirely (he negotiated that way). If you want to use Anka’s version, you’ll pay Anka, François, Thibaut and Revaux. If you want to use the French version, there are two versions of it with different lyrics. You’ll have to select one and get clearance from the respective writers (minus Paul Anka, of course). Now, the masters are a different story: each version is a different one – and there are many.
From these examples, it should be clear that every song is, or at least can be, a world in itself.
A: Whenever possible, yes. Music is an integral part of your film. Whatever is done with that music can have an impact on your film. So, from a producer’s point of view, he/she has to protect both the film and its original music soundtrack. If the producer does not have control over what can be done with the music, he/she may face unforeseeable issues later on. Because of the multiple dimensions of a film, a producer is frequently in a better position to promote and protect the film’s soundtrack than the composer is. Keep in mind that the full original music soundtrack (and not just the portions that were used in the film) is a normal item on the deliverables list the producer has to fulfil for the sales agent. Why? Because one distributor in France will want to do radio spots to promote the film and needs access to all the music (or cues) to select what works best. Another distributor in Argentina needs to cut a new trailer and needs the same access to the entire music listing. This means that there are lots of possible uses of music (some are not that obvious) that will inevitably depend on what the producer can allow or control. Composers should not be bothered with this. As time goes by, if the music is that memorable, it’s usage still can impact the film. With that in mind, the producer (and/or the sales agent) usually has the back-office muscle to keep track of all that’s going on regarding music usage and so protect the composer’s rights. The bigger your ambitions are for your film, the more complex the management of the music tends to be in terms of sales and promotion. You should not leave such an extensive responsibility to the composer. You should always look at the Laws in your country, and see if there are specific limitations to who can own or control the publishing since there are some variations in this regard. Also, it is advisable that you respect guild and union rules (for the producing country) regarding the composer’s share and eventual residuals.
A: Yes. Mentioning things and people are not a problem. At the beginning of RESERVOIR DOGS (1992), the characters discuss the meaning of Madonna’s “Like a Virgin”. There is no problem there. The problem only starts if a character sings a passage from the song (melody) or quotes the lyrics. In that case, if you want to avoid potential trouble, you should get a license or ask for a permission from the rights holders.
A: Album covers and all graphic content that comes with an album are protected too. Think about Joy Division’s “Unknown Pleasures”, The Police’s “Ghost in the Machine” or Debbie Harry’s “KooKoo”. You will have to obtain permission from (and likely pay) either the record label (who owns or controls the “album” as a whole), the Graphic Artist (who created that Art), or both! It all depends on the contractual powers and obligations between who owns the album and the Graphic Artist. Also, you will face the same issue if those Artworks appear on the T-shirt your character is wearing in scene 53. This can be quite a problem, since, over the last 20 years, virtually every classic album’s artwork has been licensed for merchandising – so much so, we barely even notice it anymore. How do you defend yourself? Tell your Art department to not use any protected intellectual property (I.P.) on the film. Better yet: ask your Art department to create fake record covers (and these you control). It’s okay to write made-up band names over a fake cover. It’s equally okay to slightly alter a band’s name and create a similar logo (never use their original logos, since they too are protected) if you think the audience won’t notice, or if they will still make the connection. The Police’s album “Ghost in the Machine” goes to the extra length of insisting that the digital gibberish of the cover artwork is trademarked – so you cannot use it! However, you can produce something similar yourself and let the audience make the connection.
A: Be very careful there. We are not citing Waits and Midler just because. Earlier we discussed the use of sound-alikes. However, there are limits to what you can accomplish with sound-alikes. If you want Adele to sing in your film but cannot get the real deal, you can hire one of the many sound-alikes available on the market. But be careful to NOT ask them to sing a song by the original artist (Adele). Why? Because if you do, the original Artist can take you to court for misleading the audience into thinking they sang on your film or licensed their masters to it. Bette Midler and Tom Waits are two great examples of this. Better said: Midler vs. Ford Motor Co. and Waits vs. Frito Lay are two great examples. In the 80’s, Ford wanted to use Bette Midler’s 1972 hit song “Do You Wanna Dance?” in one of their commercials. When she declined, they licensed the song (written by Bobby Freeman) from the publisher and hired a sound-alike to sing it. Midler took them to court and won. The same happened with Waits, who is well-known for refusing any connection with advertising. Frito-Lay wanted to use Tom Waits’ “Step Right Up”, from his 1976 album “Small Change”, in a commercial. Although the song was written by Waits, he does not control the publishing. The record label does. Frito-Lay licensed it from the record label and hired Stephen Carter, who was known as a Tom Waits impersonator, having performed his songs in the past. His version of “Step Right Up” was so perfect even Tom Waits was amazed (or too amazed). So, he took Frito-Lay to court and won over $2 million in damages because the snacks company misled the audience into thinking that was Tom Waits backtracking on his disdain for advertising. So, the lesson here is simple: if you want to have Adele, Amy Winehouse, Tom Waits, Freddie Mercury, or any distinct artist, but cannot have them for some reason, do not use a sound-alike to “reproduce” a classic master. Instead, use the sound-alike to sing something else in the style of the said artist.
A: Yes. There may be exceptions to anything in this guide. These exceptions will come from the rights owner’s power over what he/she owns or from specificities in different countries’ legislations. A country may allow you to do one thing or another differently. However, you should keep in mind that those exceptions and differences only apply in that country. So, if Luxembourg law allows you to include music in your film without any licensing (not true, by the way), this will only be valid when your film is distributed in Luxembourg. An artist may love your project and give his/her music for free providing you give him/her a foot massage. You are in the entertainment business: anything can happen! However, be careful and always think strategically. Understand that your film will be released some day, and music licensing is a delicate business.
About the author.
PAULO LEITE (writer/producer)
PAULO LEITE (writer/producer) was born in Recife, Brazil, and has over 20 years of professional experience. He has worked in Production roles in Film, TV, Commercials and Fashion. Paulo also has experience in Development, having helped many international producers with their projects, either as a writer, consultant, mentor or simply as a friend. Paulo teaches film production at Lisbon’s Film School and is a life-long, hardcore horror fan with a massive book, DVD and VHS collection to prove it. An avid music collector, Paulo has over 10.000 CDs and vinyl records. He is on Facebook, Linkedin and Twitter. He also attends all the main film festivals and markets in Europe, North and Latin America and is frequently hired as a lecturer/speaker on themes like film development, story editing, screenwriting, horror films, film marketing and other engaging subjects. He holds degrees in Film Production, Screenwriting and Communication Sciences.