Today’s independent musician must be more creative than ever when it comes to income streams. As discussed in previous posts, the money earned via streaming music is practically non-existent. Merchandise and album sales can be profitable, but require significant amounts of investment capital up front and can take months to materialize any profits. In the interim, you still have to eat, pay rent, gas up the tour van, and live your life.
One source of income that many independent artists have found quite lucrative is placement of their music in TV and film. In terms of HOW to get your music placed in TV and film, that is a separate discussion entirely that has been covered extensively by other independent artists. You can find excellent articles about getting noticed by music supervisors here, here, here, and here.
The process can be summed up basically in two steps 1) create good music and 2) establish connections with music supervisors. A music supervisor is, for lack of a better description, the person who finds music for a TV show or film. Depending on the project, personalities, etc., a director or producer may have the ultimate say in what music goes in, but the supervisor is typically responsible for finding music to fit a particular scene.
From a legal perspective, TV shows and films have to pay the copyright holders to use music in their particular productions. The more well-known a piece of music, the more someone will have to pay to use it. Oftentimes filmmakers have an idea for a scene using well-known music (The Beatles or The Rolling Stones, for example). The problem with using such music is that it is expensive to clear the rights. As a result many independent filmmakers must instead use music by lesser-known artists who will charge less for their songs. What does this mean for the independent musician? It means that music supervisors often look for lesser known songs to utilize in their particular production. If your song is not as well known as a Jagger/Richards classic, have no fear! The motivation of a music supervisor to utilize an independent musician’s music may be twofold. First, a director may want to use unknown music just simply from an artistic perspective. Second, there is a financial incentive to use lesser known material because an artist will most likely allow his/her music to be used for significantly less money than a more established act. Anecdotes abound about productions having limited music budgets which render them unable to licenses well known songs. But if you are willing to deal with the ego blow that comes with knowing that a music supervisor will pay you less to use your music than he/she would pay to use The Beatles music, then there’s good money to be made in TV/Film music placement.
So for purposes of this article, let’s assume you have been in communication with a music supervisor who wishes to use some of your music in a particular TV show, movie, or commercial. What legal issues should you be aware of?
WHO OWNS THE RIGHTS?
First and foremost, you can’t license what you don’t own. Make sure your music is copyrighted, whether you are the sole author or a co-author. If you haven’t copyrighted your music yet I strongly suggest you do so. It can be done here.
WHO IS PRIVY TO THE DEAL?
Entertainment attorney Donald Passman, in his legendary book All You Need to Know About the Music Business, lists eight different people that could potentially be involved in a motion picture music deal: 1) the performer; 2) the record company to whom the performer is signed; 3) the record producer; 4) the songwriter; 5) the publisher to whom the songwriter is signed; 6) the owner of a master recording that’s sampled in the song; 7) the publisher who owns a song that’s been sampled; 8) the record company putting out the soundtrack album.
This is a question you must ask yourself based on the copyright status of the work. I try to keep things simple here, so let’s assume you as an independent musician are the sole author, writer, performer, and that you have copyrighted your work and serve as your own publisher/record label. Sound easy enough?
The two main types of licenses you should be aware of are synchronization licenses and master licenses. A synchronization or “sync” license is the license wherein you, the copyright holder, allow a “licensee” to “synchronize” (hence the name) your music with whatever film, tv show, commercial, etc. they are creating.
Although the concept of synchronization rights are not explicitly mentioned in the Copyright Act, courts have recognized a copyright holder’s right to control the synchronization of musical compositions with the content of audiovisual works and to have required parties obtain synchronization licenses from copyright holders. Leadsinger, Inc. v. Bmg Music Pub., 512 F.3d 522 (9th Cir., 2008) Indeed the 9th Circuit has held that a synchronization license is required if a copyrighted musical composition “is to be used in `timed-relation’ or synchronization with an audiovisual work”. Id at 527.
These forms can be obtained from an attorney or found online (a word of caution about “standard” contracts below). Most likely a music supervisor will have a set of licenses he/she will provide to you that has already been approved by their attorney. SESAC also has a link to obtain licensing forms here.
A sync license may contain a variety of clauses that cover such important topics as: identifying the song(s) to be used; identifying who owns the right(s) to the song(s); the intended use of the material; the fees provided; the manner in which the copyright holder/artist will be credited; and most importantly a clause regarding the actual license. Make sure you read the sync license, particularly the clause regarding the actual license, thoroughly in order to understand exactly what you are authorizing someone to do with your particular piece of work. For instance, are you granting an “exclusive” or “non-exclusive” license? There’s a big difference, in a nutshell an exclusive license grants a very limited use (for instance, to use your song in a particular scene). An exclusive license is helpful to prevent someone from utilizing your music in a manner you didn’t agree to. Conversely, a non-exclusive license can grant someone greater freedom to use your music and could potentially lead to uses you hadn’t anticipated/agreed to. A legal case discussing the ideas of licenses for a particular use is Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir.1988). In Cohen, the owner of a license to exhibit the film “by means of television” was not entitled to exploit the picture in a new medium (videocassettes) which was anticipated by neither party. Id. at 854. So read the actual licensing clause of the contract to determine what music is being used and how it is being used. A non-exclusive license isn’t necessarily “bad”, it just depends on what you have agreed to and what someone wants to do with your music. This leads me to my next point-
A quick point on contracts in general—there is no set “standard” contract for anything. Although there are standard forms and contracts that people use for various purposes, ultimately those forms are (in theory) a written manifestation of the terms that the parties agreed to. Many “standard” forms have intentional blank spaces where terms such as price, duration of time, etc can be filled in after negotiations. So make sure your synchronization license or any other contract for that matter, accurately reflects what you have discussed with another party.
A master license is a license in which the owner of a sound recording or a piece of music licenses the music for use. It allows someone access to the “master” recording of an audio work.
Master licenses can be very important if you have recorded songs in the studio or under contract with a record company, as both the studio and/or the record label may own the actual recording of your work. You may own the copyrights to a song, but someone else may own the actual recording of the song. If you have recorded any material through a deal with a record label, recording studio, etc, review the paperwork before you start licensing out rights to use master recordings that you may not own. You would be surprised to learn how many artists do not own the master recordings of their own works. (Remember that scene in the movie Ray where Ray Charles is negotiating to own his own master recordings?)
A final point to remember when signing any sort of contract, whether it be with a music supervisor, record company, venue, or any other business transaction. Remember that under the law, any prior negotiations and discussions are merged into the actual contract. Therefore, by law, oral discussions, preliminary negotiations, etc. are generally inadmissible at court. This is about as far as I’ll get into the Parole Evidence Rule other than to say, with some exceptions, the actual contract you sign is generally gospel in a court of law. In Nevada, specifically, a Court will construe an unambiguous contract according to its plain language. Sheehan & Sheehan v. Nelson Malley & Co., 117 P.3d 219, 223-24 (Nev. 2005).
So make sure the language and terms of the contract, as well as the numbers, are consistent with whatever you have negotiated. Remember that attorneys are human, make mistakes (trust me), and can very easily forget to make an edit to a contract based off of a conversation. Don’t be afraid to point out if someone forgets to make a change in the written contract based on a contract negotiation! It might sound elementary, but also make sure that the contract accurately reflects the negotiations BEFORE you sign it. Nevada Courts have consistently ruled that a person is bound by any document they sign “in spite of any ignorance of the documents content” provided there has been no misrepresentation. Yee v. Weiss, 110 Nev. 657 (Nev. 1994). I have personally cited to this case with success in contract actions in Nevada.
I wish everyone success in getting your music placed in TV and film. In the event you are fortunate enough to have your music featured, make sure you take a moment to read through the contracts and, if necessary, have an attorney review them for you.