The process of clearing popular and recorded music has certain “rules of thumb” of which producers should be aware. Understanding these guidelines is the first step in a process of music planning that will help secure the highest quality music at the lowest possible price. * First, understand that some songs or recordings aren’t available for use at any price. A song’s owner may restrict its use for any reason, understandable or not. Increasingly, songs are tied in to exclusive endorsements or sponsors. Some publishers or writers may not want their songs associated with certain products or businesses. * Second, the time frame for clearing music varies. A song might be controlled by multiple publishers, agents, attorneys, songwriters, artists and estates. Getting these consents can be time-consuming. Exhaustive research may not turn up an owner with whom to negotiate. Leaving too little time to clear a song, and then trying to clear it after it’s been used, is a variation of Russian Roulette. * Third, music publishers don’t have a standardized “rate card” – every negotiation is unique. A background instrumental use of one song might be more expensive than a visual vocal performance of another. “Obscure” songs may not be cheaper than “famous” ones, “new” songs may not be pricier than “old” ones and songs that are public domain in the U.S. may still be protected in other countries. * The fourth guideline follows from the first three: If you don’t know whether or not a particular song can be used, how long clearance will take or how much a license will cost, don’t commit to using it (unless a last minute re-write, re-shoot and re-edit seems like a fun exercise.)
Although music clearance may seem difficult, corporate producers can effectively manage these issues. A producer gains control by dealing with music earlier rather than later in the production schedule, allowing as much time as possible to acquire the best possible music, and to make sure corporate legal interests are protected.
The process can begin by contacting a producer’s music-clearance service, which can suggest creative and affordable options before production begins. Producers require overall music planning, accurate cost projection and research that’s thorough and timely. The negotiation and business-affairs skills, such a service provides, protect the interests of the company in many ways and ultimately reduces overall costs.
Publishers and record companies consider many factors in deciding whether or not to grant permission.
Some of the questions owners might ask are: * Who is the company using
the music and what do they
do? * What is the nature of the
meeting or production? * What kind of images will accompany
the music? * How much of the music is
being used? * Will there be special or
parody lyrics added to the
song? * Will copies of the program
be distributed? * In what territory will the
production be shown?
License fees vary based on the answers to questions such as those above. Yet the price of one song as opposed to another may also have to do with how many owners each song has and how fees are shared. Fees may not be lower when the use is for good will purposes, such as a “video greeting card.” While they generally fall within known parameters, fees can’t be confirmed until negotiations are completed.
Learning the basics about the rights involved in corporate communications can make the day-to-day business of licensing much clearer. For a practical illustration of music rights, the following is an example of a song which is used in several ways:
A weekend trade show makes several uses of the song, “One Moment in Time,” which was made popular by Whitney Houston. The original recording is played over the p.a. system as the audience enters the hotel ballroom the first morning. To continue the theme, a specially re-recorded version with new lyrics is used in a video presentation during the meeting. What rights should the producer get? (Answer: A synchronization license with adaptation rights, a master use license and possibly a performance license.)
A brief description of the rights involved in this usage follows. These rights are the ones most frequently licensed for corporate uses. 1. Synchronization Rights: In audio/visual production, the right to reproduce a copyrighted song is called a “synchronization” right because it’s reproduced/recorded in synchronization with visual images. When music is reproduced in an audiotape containing dialogue, music and effects for a slide show or a videocassette for distribution to attendees, synchronization rights must be secured from the publisher(s) of the material. If the music is only being performed by live musicians, or a commercial audio recording is played back alone, a synchronization license isn’t the kind of license that’s required. 2. Adaptation Rights: When a song is altered or adapted by way of arrangement, parody, comedic use or lyric change, permission is required from the owner. Some owners are open to the use of their material as it was originally written, but don’t permit any adaptations. (Jerry Herman, lyricist and composer of “Hello Dolly,” refused to allow Barry Goldwater to pay for a parody entitled “Hello Barry” for his presidential campaign in 1964. Herman subsequently gave permission to Lyndon Johnson’s campaign to use “Hello Lyndon.”) 3. Master Use Rights: While a song has a distinctive copyright, a recording of the song has its own separate copyright. Record company permission is required when the recording is being re-recorded to another audio or videotape. For example, if a program uses “We Are The Champions” by the group Queen, permission must be secured from the publisher and the record company. The record company itself may need to secure permission from the artist(s). The AFM (American Federation of Musicians), the union representing musicians, may also be due “re-use” fees on behalf of the member musicians who made the recording. 4. Public Performing Rights: Performing rights refer to the right to do such things as recite, play, dance, sing, act out or broadcast a composition. A performance in a corporate sales meeting of an audio or video program, a slide show or a live presentation qualifies as a “public” performance and is subject to licensing. The American Society of Composers, Authors and Publishers (ASCAP) or Broadcast Music, Inc. (BMI) collect royalties from its licensed music users, (broadcasters, hotels, night clubs, etc.) and pay royalties to the songwriters and publishers it represents.
There’s no doubt that popular and familiar music is an enormous creative resource. The music clearance process helps the producer make the best use of that resource by assisting in creative decisions, and providing “bottom line” financial and business affairs answers.