A Guide To Legally Licensing Music.

February 22, 2016

 

So, You Want To Use a Song in Your Film?

 

Everyone loves how Martin Scorsese uses popular music instead of traditional soundtracks in his films. Certain songs can convey emotions perfectly that it's very tempting to use them when you need to have a certain mood for a scene in one of your own films.

 

Well, that can lead to problems.

 

Tartan Features have been involved with a number of films that use copyrighted music, so we thought it might be helpful to pass on some of our experiences to you. Mainly because it's a very confusing area and can get you into a lot of trouble, which would not be nice.

 

The best advice is don't use copyrighted material – it really, really is a pain. But if you are determined to there are a few things you need to know. And many misconceptions.

 

The first thing you need to know, and it's very important is if the song you intend to use has been properly released before - in any way then it is going to cost you money. You will not get this for free. You are going to be entering a world of lawyers, and a simple signature will cost you money.

 

If you somehow have been given permission by the artist you will still very likely have to pay, mainly as they usually don't have that permission to give. What? That's crazy!

 

This is how it works:

Every song has two constituent parts. Part one is the publishing rights and Part two is the master recording rights.

 

Part One (Publishing) is fairly complicated so this is a very simplified version for the purposes of our guide.

The songwriter assigns the copyright of their songs to a publisher, a bit like an agent. The publisher owns the songs (including the money generated) and is given the responsibility for their use and (in theory) pays an amount of royalties to the songwriter. This can be a bit of a surprise to most people outside of the music world. Publishing can be sold to other publishers. Famously The Beatles do not own their publishing.

 

Part two is less complicated.

 

When an album is recorded the studio time and all related costs are paid for by the record company the artist is signed to. This means that the physical recording of a song is owned by a record label. And importantly whoever played on a recording is included here. This can also be sold on.

 

Both of the above are very important distinctions.

 

What does this mean for film-makers?

 

Well, lots. It means that if you have a particular song by an artist you want to use in your film then you have to obtain the synchronisation rights for that song to use legally. Synchronisation rights are a licence to use the component parts of a song in a film or commercial. In most cases it means two licences – publishing and recording.

 

This is not always made easy as generally both parts of a song are owned by different companies.

It also means that if an actor 'covers' a song in the film, although you do not have to pay whoever made the original recording you still have to pay the publishers.

 

Although many people say otherwise there is not really any way – unless very convoluted – to get around not paying for at least one of the licences.

 

Many people will say 'it's fair use', 'but it's a student film' or 'it's not for any profit'.

 

Fair Use in copyright is purposely an interpretive term, much like in tax. There are a million songs or films on YouTube that say 'Fair Use, For Education purposes' etc. Adding a disclaimer does not make that true. In a copyright dispute that would not be classed as 'fair use' as it demonstrably shows that someone could watch a film on youtube for free rather than spend £10 to buy it from Amazon. It's the intent. It's likely to be classed as Fair Use if shown in a lecture at College with some discussion afterwards however.

 

So while it can be a grey area, Fair Use will generally not be regarded as being legitimate by publishers and record companies for Student or Non-Profit films. And that can cause you problems.

 

If you still decide to use a commercial song but don't think you should pay for it your options for progressing your film become very limited. There will be no distributer or broadcaster who will touch your film without the proper licences. And any festival worth it's salt will ask to see your licence, or legally make sure any copyright violation has the onus on you.

 

In practical terms, if it's a short film that's purely for you messing around and putting on YouTube the worst that is likely to happen is for the publisher to request you take it down, or your account deleted. Although, as mentioned before except for some convoluted reason you really are required to licence any music not belonging to you.

 

Well, if you still want to pursue using commercial music in your films here are your options:

Festival Licences exist. Many of the companies involved understand and actually want to help emerging film-makers use their music in films. These licences have limitations – and they can be bargained for – these usually last for 1-2 years for specific use at festivals. Not commercial purposes. Small commercial concessions can be made with these licences in certain cases– often upto 99 DVDs/Downloads or limited online use. A warning is that many rights holders have ongoing battles with some online platforms so this may be difficult under these terms.

 

Unfortunately even the festival licences are not free. As legalities are involved it usually requires a minimum charge for paperwork/signatures etc. And this will likely never be under £100, and more commonly £250-300. Per Side!

 

What does Per Side mean? It is usually referred to by the terms MFN, or Most Favoured Nation. This means you have to pay that to each party – publishing AND recording. It's further confused when MFN is used. That unfortunately means both sides have to agree to the same rate. So if a publisher offers £100 for publishing but the recording holder says £250 you have to pay £500 (the highest offer has to be matched). And there is also VAT to be paid on top.

 

Really, you are likely looking at £500+VAT for an average song to use in your film for festival use.

By applying for the licence you will have to provide budget costs and commercial aims etc. Costs change VERY DRAMATICALLY (capital letters always look dramatic) when it's not a micro-budget feature or short intended for a couple of festival showings.

 

The aim of most feature film makers, or indeed short makers is to sell their film or have it shown commercially. This is where licensing a well known song (or indeed any commercially released song) will come back to bite you.

After your successful festival run you may be approached by a distributer. They may say 'that scene with the Rolling Stones song and the dancing dog was amazing, I want to buy your film it's the best thing I've ever seen it made me cry. I want a dog like that'. Festival clearances are not much use to you here. You now need to buy commercial licences.

 

To use a song in your film forever you need to have a licence 'In Perpetuity'. To have that shown in US, Europe and America requires worldwide rights. This becomes very expensive. A perpetuity licence can start to turn from £500 into £10000+, depending on what you are wanting licenced. This is a very big jump. You have a few options:

Change the track. This involves changing your edit, deliverables etc. A pain and expense.


Change the licence terms. You can licence tracks for 3, 5 10 years. And the costs can come down dramatically. Depending on your sales expectations you may be able to negotiate a 3 year worldwide licence for all media for £2000 or so. Again depending on the song.

 

You also have to have the permission of the songwriter. Although they don't own the publishing (in most cases) they are given a unique right to not have their music used in a way that goes against their beliefs or public image. How many films can you name that have ' Fight For Your Right' by Beastie Boys in it?

 

You have probably noticed other terms being banded about like 'Worldwide', 'All Media' etc.

 

The reality is that beyond a simple festival licence, using a known track in a film is expensive and incredibly risky. If you don't know exactly what you are doing there can be great room for error and expense – i.e.Universal suing you. To minimise this risk you have to start bringing in Music Supervisors, Media Layers, starting Special Purpose Vehicle Ltd companies and all sorts of insurance. This is all really, really expensive and at the end of the day you have to ask yourself is it worth it.

 

Just play it simple and use your money elsewhere.

 

If your determined the MCPS and PRS are very helpful places to start.

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