Questions & Myths
the worlds of publishers, record companies, agents and unions can help a
producer deal with surprises (ie: catastrophe).
CICCONE, whose expertise on copyright issues has been utilized by clients
such as the CBC and the Arts & Entertainment Network, provides an
overview on common clearance issues.
focus here will be on music use; although film footage clearance is
touched upon. This is not intended to be a complete study of copyright.
Laws and the industry change, and each situation is unique – with its
own set of problems, questions and governing laws.
has been written about how to approach copyright clearance – types
of licenses required, etc., but little has explained why things happen the
way they do.
a brief recap of some licensing rules. If you know them, skip down to
"How Many Bars Can I Use...".
within a common scenario, a director in latter stages of post production
(the really rushed part) pulls a CD off a shelf and finds that it works
beautifully with the visuals. The CD is a recording released by a popular
band. The director may fall prey to Myth #1: I’ll just get an OK from
the record company and all will be well, right? Wrong. A ‘bundle of
rights’ must be addressed.
in the Composition:
first step is to clear the right to reproduce the musical composition. The
composer(s) may very well have nothing to do with the band on the
recording, and subsequently, nothing to do with the record company.
Without this clearance, referred to as a "synchronization
license" in the case of soundtracks for film, video, etc., no
reproduction can be legally made.
popular band also had to get permission to record the composition too, a
"mechanical license". This right is normally assigned to a
publisher to take care of the administration, promotion, etc. for the
composer. Know that administration control is ever-changing. Copyright is
bought and sold frequently.
the right to perform the composition (including broadcasts, theatrical
showings, etc.) is usually assigned to and administered by Performing
Rights Societies (SOCAN in Canada, ASCAP and BMI in the U.S., etc.) after
receiving music cue sheets from producers (this area can get a bit tricky
since "grand rights" – a type of performing right if you will
– are administered by the publisher).
TIP: theatrical performances are not
currently looked after by Performing Rights Societies in the U.S. as they
are in most other countries. So, if your feature film is screened there,
you’ll probably want to have the performing right for U.S. theatrical
use included in your "synch license" from the
a related matter, simply performing a song live to an audience – not
synchronizing it with visuals – might already be taken care of by the
venue. But in the same situation you must obtain a clearance if you, for
example, modify the lyrics.)
and especially when dealing with British and (recently) amended Canadian
law, the composer always maintains the moral right in the composition.
This allows the creator of the work to protect its ‘artistic integrity’
and guards against its distortion or mutilation (frighteningly subjective,
yes?). This right is not assignable although it can be waived and only
waived by the composer.
to make a dub from the above-mentioned CD, a "master use"
license must also be obtained. This grants the right to reproduce the
recording (separate the composition from the recording in your mind and
you’ll be way ahead). This often comes from the record company.
this stage, unions or guilds which the band on the recording belong to
will usually want a "new-use" fee paid to their members. Not a
big deal if the session involved a couple of folks on samplers – but
what about the artists who have a 110 piece philharmonic orchestra backing
them up? This is not outlined in the Copyright Act but is considered to be
a customary industry issue. When the producer has musicians re-record the
composition, the master use license and new-use fees are eliminated and
replaced by the usual studio and musician hiring costs.
the producer and director are in the studio with the musicians and decide
that creatively, the track should have the same feel as the recording.
This brings up the "sound-alike" issue. Now famous court cases
in the U.S. have ruled in favour of artists like Tom Waits and Bette
Midler who have claimed that their distinctive vocal styles were plainly
misappropriated by producers. This is a 'clearance' normally administered
by a personal manager, agent or lawyer representing the performing artist
(we're no longer dealing with composers and record labels for this) and is
a critical issue when dealing with advertisements, product tie-ins, etc.
many bars of a song can I use without having to get permission?
to what you may have heard, there is no set amount. If it got to court, it
would likely come down to a subjective yet complex decision as to whether
the composer's work was reproduced and a substantial amount of it used
based on a small parade of blackboards and tape recorders.
need to know if I can and how much... right away.
doesn’t? It is seemingly a natural law of production that by the time
you know what you need you have little time to get it. With insight into
the industry, tabs on ever-changing copyright ownership, and good fortune,
things can move surprisingly quickly. However, we can also be at the mercy
understand that reality, picture this: a composer is signing a deal with a
publisher. If that composer has negotiating strength, he/she may try to
get ‘third party approval’ meaning that any licensed use of their song
must get their express approval or veto without even having to provide a
reason. Factor in that it is not uncommon for any number of publishers or
other entities to all own shares in the song. That deal may also require
that each of those entities give their express consent. Now factor in that
one of these contractually bound people is hot-air ballooning in France
without a phone and you have your proverbial wrench.
the operative words: "contractually bound". No one will risk
getting sued. They also won’t want to lose their financial interest in
the copyright and develop a bad reputation preventing them from obtaining
future copyright interests. Odds are that they’d rather risk losing the
business from this one license.
wants to do business (although sometimes you gotta shake your head and
wonder). But as in all business, desk pounding can do more to sway the
other side to simply say, "Next time please start earlier", and
leave you with nothing. After all, a big company likely has a stack of
requests like ours on their desk that they can move on to. Rest assured
that licenses worth tens of thousands of dollars and more sometimes just
never materialize due to the above risk elements.
of the Game:
what's the solution? The key is to know the game. (If the people in charge
of your clearance are worth their salt, they will also be equipped to deal
with the splits, shifts and phone/fax tag). Know the players involved, how
they do their business and subsequently how to help get your information
next single-most important thing is to arm yourself with alternatives.
Example: your ’60s psychedelia rock tune is unavailable, taking forever
or priced too high. Well gee, if there isn’t a creative reason to use
that one specific song, MCA Publishing currently has 100% internal control
of some Steppenwolf compositions and they’ve been sensitive to
justifiable budget restraints. A strong understanding of music genres from
Mozart to Motown to Motorhead is required in order to fit the aesthetic
piece into the puzzle.
much it will cost is completely negotiable (unless there exists a
statutory rate such as that for mechanical licenses in the U.S.). It will
be based on the popularity of the song, the type of use in the production,
the territory of use, the term of the license, exposure, promotional
value, the general pricing policies of the copyright owners, and so on.
Put a bit of thought into the many potential combinations of these terms
to make your budget work.
licensor’s guidelines will also determine availability and what types of
use will be allowed. While some have loose rules if any, others can be
tough. For example, permission has apparently never been granted to change
Beatle lyrics (known as ‘parody lyrics’) or maybe the owners of an
older, ‘serious’ ballad might not share our concept of what makes good
a Friend of the Band:
are dangerous waters. Many well-meaning musicians have pledged their songs
only to be reminded that they legally don’t have the last word in
licensing. In the earlier example, the negotiating composer may have to
accede to the publisher’s final say in availability and price in order
to reap other benefits.
some cases, trying to go directly to the composer can leave a publisher or
record company feeling "end-run" and bitter. (They might be
frustrated that they’re not able to do what they were hired to do and
may regret forking over an advance to the composer.) So you’ve gone full
circle to the one who calls the shots and now they’re cranky.
is complex enough to confuse even the creators of the work.
copyright is complex enough to confuse even the creators of the work who
might not fully comprehend what you require. Artists’ involvement can
help a project. But it must be approached diplomatically.
got a Russian recording. Do I have to clear it?
not sure why this one keeps coming up. It likely has its roots in the fact
that ‘Russia’ at one time was not signatory to our copyright
is still a property which someone owns. Whether the owner can easily take
action against the unlicensed user is a highly technical area but shouldn’t
be a consideration. Also, there is still that separate composition and
perhaps other rights embodied in that recording.
an old song. Isn't it Public Domain?
countries have many different "terms of copyright". In Canada,
it’s currently 50 years after the death of the last surviving composer
of the song...but there can be exceptions (e.g.: unpublished works;
"posthumous" works; etc.). Revisions in the U.S. Act affect, and
can lengthen through renewals, the term of copyright. This term can vary
from country to country. So it’s highly conceivable that a composition
might be PD in one country while not in another.
a "registrations and renewals" search through the U.S. Library
of Congress and/or equivalent government areas of other countries can shed
light on this area. Records and photographs can go PD fifty years after
the pressing of the first plates or negatives, but again can be subject to
bought Stock Film footage from a stock library. Is it all cleared?
very carefully at your license from the stock house. It is most customary
that you are only licensing the copyright in the film footage itself. This
does not necessarily encompass the many elements in the film such as
actors’ rights, union rights, directors’ rights, writers’ rights,
copyright in an underlying work (e.g.: a play or book), etc. As for any
music in the soundtrack, all the usual copyrights mentioned earlier can
apply to that element alone.
last tip for the road.
that the title of a song is not copyright protected. Consequently, there
can be a gazillion songs called Please Don’t Leave Me Darling.
The distinguishing factor (aside from the music itself) is the composer.
So to research the right song, we start with the correct title and the
are many, many variables in the copyright clearance world. Familiarizing
yourself with the landscape, starting as early as possible and arming
yourself with options can help negotiate the tricky ground and spin into a
Broadcast & Production Journal
1993 Copyright Music & Visuals. All rights reserved.