Nick Fitzsimons founded Penny Distribution in 2007 and launched sister company Penny Black in 2010. Originally a physical and digital distributor, Penny Distribution and marketing services for its artists and labels.  Penny Black is a boutique music licensing and consultancy service representing independent Irish & UK labels catalogue to the media industries for sync and brand partnerships.  Nick also helped organize UnConvention Belfast and the NI Music Industry Meetup series, as well as the informal Open Music Media Belfast meetups

It’s something that anyone involved in music in 2010 will tell you is big business, and maybe the answer to dwindling (if not non-existent) recorded music sales.

The sync, or “synchronization” of your music with a moving image.

Indeed, the pursuit of that perfect sync (or even an imperfect sync) has been a focus of recording artists for years – closely coinciding in the past decades meteoric slide music sales.

Prior to 2002, it’s safe to say that most label’s sync strategy was “passive” – there’d be little to no active outreach, with content creators such as ad agencies and TV producers instead, upon hearing a record on the radio or through other promotion, would call the label directly and negotiate a deal. 

The tables have well and truly turned.

The sheer amount of pro-active music producers (labels, artists and music clearance houses) now pitching to music supervisors, creative directors at ad agencies and games companies is so huge that it’s having the natural market economy effect when supply greatly  outstrips demand i.e. less and less money is being made available to pay for music licenses. 

Whereas 10 years ago, a Hollywood picture would have about 10% for a music budget, that margin has slimmed to 6%, even as low as 3% in some cases.

That said, independent music has a significant advantages over music from other more “established” artists.  Stressing the “indie advantage” – that you can be more flexible, clear the license more quickly and allow for wider uses of the music – can be an attractive proposition for folks seeking that killer track that connects with their audience.

First things first:  before you can even think of a sync strategy, you need to get your tracks sync-ready.

1)     Register your songs with performing rights organization in your country.  Sounds obvious but I’ve heard some horror stories.  Some TV companies actually ask for a detailed songwriter split BEFORE a deal is signed, for no other reason but to make sure there’re no hiccups in clearance later.  Be sure to be explicit about song-writing splits during registration and keep a clear record of all communications.

2)     Instrumentals:  When you’re in recording the new release, think seriously about paying up for vocal-less versions of your mixes.  It’s the #1 most asked for variant of any commercial recording and could well be the difference in getting a sync or not.  Getting instrumentals after you’ve finished recording and mastering can be considerably more expensive – it’s worth keeping in mind.

3)     Metadata:  Ensure ALL of your digital music files are correctly tagged.  You can use iTunes (“Get Info”) to edit meta-tags, but I find an audio editing software (like Audacity, which is free) is more suitable for editing tags. Including genre, bpm and songwriter information as well as contact information in the file will help people track back to you if they hear something they like.

Once your tracks are as sync-friendly as possible, the next step is to look at where to aim and who to contact:

1)     Film:  IMDBPro is a great resource here – most music supervisors will list their previous work and upcoming projects - a great way to start a conversation with them.

2)     Advertising:  Resources like FileFX (in the UK) list many key advertising agencies and their respective key players. The biggest problem can be getting your music to the right person at the right time – there are literally tens of people involved in the creative process of making an ad.  Developing a few relationships, rather than trying to contact everyone who might be involved, is usually a safer bet, but a good place to start might be the company’s Head of TV.

3)     Games:  A more difficult bet for commercial music – many games use a custom composed scores.  Certain game genres do use commercial music, and the major publishers (Sony, EA, Konami, Xbox etc) usually have a music supervisor who you can target.  The key, as always, is being relevant to their current projects.

4)     TV:  IMDB is a great resource here also.  Most TV studios have folks in charge of a series.  As these folks often move from show to show, establishing a good relationship can be advantageous here also.

There are many other routes to market for your music – coupling with a consumer brand or corporate communications being two that spring to mind – that are also worth considering as your sync strategy develops.

When you’re ready to reach out, keep a few things in mind:  as with any communication with folks you’re trying to get interested in your music, remaining personal in your communications, as well as persistent is important. 

1)     Be a real person: Rule of thumb – forgo any language in an email that you think sounds “professional”.  That doesn’t mean write emails in LOLspeak, but passion about your music and more importantly, passion about the project you’re hoping to get involved in, will take you much further.  Anyone today can be slick.  Be authentic.

2)     Be relevant:  NEVER pitch a song or album just because it’s something you’re working on at the moment – only pitch music that’s relevant to the individual you’re targeting and they project they’re working on.  The temptation can be to “carpet-bomb” supervisors with your new release – bad idea.  Quality, not quantity, of conversation will take you much further.

3)     Do it together: Consider forming a collective of artists or labels and pooling sync resources.  A wider range of genres will make it easier to match briefs .

Jessica Sobhraj is co-founder and Sr. VP of Production for Sir Groovy, an online B2B music search company, which focuses on helping film studios and TV networks expedite the process of finding and purchasing music synch rights. Sobhraj oversees pre-clearance procedures and relations management for new and existing content providers.

There are thousands of synch licensing opportunities created by hundreds of buyers that are seeking independent music in the United States. Yearly, this is a billion dollar market that is rivaled by an additional billion dollars generated by international buyers. So who’s buying? Television and film remain the largest purchasers in the industry, but new niches such as interactive usages are also appearing as new forms of media/content emerge.

Although the number of placements available to independent labels has increased, the budgets have not. However, that isn’t necessarily a bad thing! Stricter budgets translate into a world of potential for independent labels to dominate a niche that once belonged exclusively to major labels. Also, A demand for better quality music and branded artists has created an opportunity for independent labels to capture business from the (cheap) production libraries.

Many labels seek the perfect concoction of strategies to address the question of “How do I get more placements??”. There are a variety of tactics that you as a label owner or licensing representative can employ to capture a chunk of this two billion dollar market. The most common method is to use a third party to seek licenses on your behalf. There are many third party licensing firms, each with its own way of navigating the (sometimes) muddy waters of synch licensing. In order to find the partner that best accommodates your situation, take the time to assess what is crucial to your synch licensing strategy, assess which partner offers the greatest penetration in your target market segment, and which partner offers a suite of services that complement rather than impede your own efforts. Here are a few research tips to guide you during the decision-making process:

-       Call: Try to get a human on the phone. Employees can reveal much more information than automated voice dialogs and email robots. During the contractual process, ask a representative to go over the agreement with you. Should you feel that the terms are not clear, be cautious of signing anything.

-       Protect Your Rights: Ask if the potential partner will re-title your copyrights and retain a portion of your royalties (this is important!!). Some partners will require that you grant them the right to re-register your music with a new title, under their publishing entity in exchange for placement opportunities. In most cases, revenue from royalties amounts to more than the original licensing fee – this is definitely an issue that you will want to address with every potential partner you research.

-       The Importance of Brand: If you’re concerned about branding and making sure that your music is in good company, ask for a list of the partner’s top artists. Partner’s with larger names often attract more buyers. Having branded artists also indicates that the partner has generated enough sales, buzz, and happy artists to retain those larger names.

-       Prove It: Ask for potential partners for a list of clients and placements from the last 3 months. This will indicate whether or not the partner is selling music in volumes that are meaningful to you! Since numbers (and placement reels) don’t lie, you should be especially suspicious of partners that cannot provide this information.

-       Strategize: Ask potential partners how they plan to get your music to interested buyers and not stuck in a massive dormant catalog. A good rule of thumb is the larger the catalog, the less you'll be heard. Because of this, labels often find that partners with smaller selective catalogs are more appealing than larger production libraries.

-       Where’s The Money?: Ask potential partners how you will be paid, and how often. Will they notify you of each placement and when you can expect to be paid?

-       Personalize Your Experience: If having someone that will update you personally and work with you on a one on one basis is important to you, factor this into your decision process. Larger pre-cleared libraries may not be able to provide such a personalized service because of the sheer volume of licenses they execute. Although they do not generate as many sales as libraries, smaller partners (like song-pluggers) work very closely with labels.

Whether you go with a song-plugger or a library, working with any third party service requires a great deal of trust and understanding between both parties. For example, your partner needs to know that the information you provide is 100% truthful (especially concerning rights clearances) and you need to be able to trust that your partner will not license your music for pennies. Moreover, understand that despite the size of the industry and opportunities available, you may not achieve your desired outcome immediately. Synch licensing can be a tedious, drawn-out process, so work with your partner to craft and re-tool your strategy frequently. Most important of all, be patient and keep the lines of communication open!

Paul Chodirker is an entertainment lawyer at Heenan Blaikie LLP in Toronto. He is also featured on the “law boys” radio segment which can beheard every Wednesday night on the Toronto-based radio station, 102.1 The Edge.

Are we there yet? So, you’ve recorded your music, found a producer interested in using your song in a film or television series, and negotiated a price for a synch and/or master-use license…so, now what? Well, everything else.

What else should you be weary of before signing a synch and/or master use license?

Limited Media and Internet Rights

The film or television producer is going to want to use your song in all forms of media. So, the licenses they have you sign will most likely contain a clause which states that the song can be used in any and all media. Basically, this means that the producer can use your song in a film or television program that is released theatrically, over the internet, through video-on-demand, free TV, etc. – all media – get it? This is very standard and a producer will unlikely agree to anything unless they can exploit the song in all forms.

Terms of Rights

A producer, unless they are receiving very bad legal advice, will never license use of the song for a limited period of time (e.g. 10 years). They will almost always ask for a perpetual license. This allows the producer the right to use the music forever, or for the duration of copyright. Otherwise, they will have to renew the music license when the term expires, which they don’t want to do.

Sales and Mechanical Royalties

This probably wont be applicable to indie musician’s who are not in great demand. However, once your music becomes popular, or if a producer absolutely needs your particular song in his or her film, you may want to negotiate additional royalties on top of the license fee. For example, you can ask for royalties based on a certain number of DVD units sold.

So, what about the inclusion of your song on a soundtrack? If a producer wants to include your music on a soundtrack, they’re going to have to do two things:

1. They will need soundtrack album rights to either be included in the master use license, or obtain a separate agreement for such rights. Remember, only the owner of the master recording(s) has the right to license the use of a master in film.
2. Either the producer or the soundtrack record company will need to obtain mechanical licenses from your music publisher or yourself (if you haven’t assigned your compositions to a publisher), in order to make mechanical reproductions of the underlying composition contained on the masters.

That’s it. You’re done! Go ahead and sign that synch and/or master use license and prepare to hear your music in the background while Matthew McConaughey and [Kate Hudson/Jennifer Lopez/Meg Ryan/ Jennifer Garner/or Jennifer Aniston] finally tell each other how much they mean to each other.

Remember, I never said you had to agree to every movie deal.

Paul Chodirker is an entertainment lawyer at Heenan Blaikie LLP in Toronto. He is also featured on the “law boys” radio segment which can be heard every Wednesday night on the Toronto-based radio station, 102.1 The Edge.

So You Still Wanna Do The Show Business? 

The title to this article comes from a lyric in a song called, “Show Business”, by A Tribe Called Quest. It’s one of the best songs that deals with the business of the music industry. This article deals entirely with the business side of having your music featured in a film. In the first part of this article, we dealt with the legal side of licensing music in film. Now, it’s time to negotiate the deal.

As stated in the first part of this article, the producer of a film is going to need a synchronization and master-use license if they want to use the master recording of a song in the picture. So, who issues these licenses?

• Synch licenses are issued by the entity that owns the musical composition; usually the composer, or more often, a music publishing company. However, synch licenses can also be obtained from various licensing agencies such as the Harry Fox Agency in the US, or the CMRRA (Canadian Mechanical Reproduction Rights Agency) in Canada. These agencies may have the non-exclusive right to issue the license on behalf of the publisher or owner. Many music publishers use these groups to administer the reproduction rights of the copyright holder in the underlying composition.

• Master-use licenses are issued by the entity that owns the master recording (typically a record company, or the artist…if they’re lucky).

So, how much will it cost the producer to acquire a synch and master-use license? This question is difficult to answer because the cost of licenses will be dictated by market value, the popularity of the song, and the budget of the production. A song can be purchased for use in a film for anywhere from $1 to over $50,000. It’s not uncommon for a publisher to charge a synchronization fee of $15,000. However, film producers are becoming much more savvy when it comes to licensing songs in their films. As discussed previously, many of the most popular soundtracks feature independent artists that have little or no exposure to the public-at-large. The fact is, indie music is becoming increasingly popular for use in films because they’re cost effective and provide the movie with cultural cache…it’s cooler to use a song from the new album by Band of Horses than it is to use a song by Def Leppard (with the exception of using “Pour Some Sugar On Me” in Coyote Ugly).

Far too many indie musicians and publishers care about the money they might receive from licensing their music in a film. There are several advantages to putting less emphasis on the money and simply getting your song in the picture. Some of these advantages, include: 

1. Exposure/publicity – having your song included in a film is one of the best ways to expose your music to a larger audience. This is especially important if you’re lucky enough to have your song released on a soundtrack.
2. Public Performance Royalties – Worldwide exposure of your song (if you wrote it), whether it be in theatres, or free/pay TV, will mean public performance royalties from ASCAP in the US and SOCAN in Canada.
3. Loyalty – if you negotiate a fair deal with a producer, the chances are very good that he or she will come back to you for more songs.

Quick. What was the song used for the end credits for the major blockbuster movie, “Wedding Crashers”? It was a song called “Aside” by Winnipeg’s Weakerthans. Surprising, isn’t it? The paradigm is shifting and indie artists need to get on board because no matter how obscure your band might be, there is always a place for music, popular or not, in film.

So, once you’ve agreed on a price and you’re ready to see your name in lights, what should you be weary of when signing the synch and master licenses? This topic will be included in part 3 of this article.

Paul Chodirker is an entertainment lawyer at Heenan Blaikie LLP in Toronto. He is also featured on the “law boys” radio segment which can be heard every Wednesday night on the Toronto-based radio station, 102.1 The Edge.

What was the number one selling album on Billboard’s top 200 chart at the end of January 2008? It wasn’t Radiohead’s In Rainbows, or Mary J. Blige’s Growing Pains. Can you guess what it was? It was a soundtrack album from “the little film that could” known as, Juno.

If you’re not familiar with the Juno soundtrack, it’s basically made up of indie darlings and musicians that you’ve probably never heard of, like Barry Louis Polisar and Kimya Dawson. Barry Louis Polisar is actually a musician who writes music for children. So, what can the success of the Juno soundtrack do for the average indie musician? The answer: a lot!!

To start, film producers have paid far less attention to a film’s soundtrack since the world discovered how to download these songs for free. Thus, less soundtrack’s were sold and producers no longer saw it as another valuable revenue stream that could be packaged with the release of the theatrical film. It was clear that the music world had indeed changed since the release of the Pulp Fiction soundtrack in 1994 (which sold more than 2 million copies worldwide). Now, Juno has come along to revive the popularity of the film soundtrack and independent musicians are increasingly being called upon to create a movie’s soundscape.

Unless you’re Martin Scorsese and you’re filling your film with songs from The Rolling Stones and Derek & The Dominos, film producers will not be able to afford music from chart topping bands to include in their picture. More so, it appears that a soundtrack which includes indie music would probably sell better anyways. So, how can a musician that nobody has ever heard of get their songs into a film?

Step 1. Get to know and pay attention to a film’s music supervisor. A music supervisor is the person or persons who oversee the music in a particular production. They typically work with the director and producer to choose songs for the score, seek out interesting new sounds that might work well for a particular film and handle the contractual and licensing issues related to the inclusion of music in film. So, the next time the credits start to roll at the end of a movie, stay in your seat a little while longer and write down the name of the film’s music supervisor. Better yet, go to a website like IMDB.com and search your favourite movie’s to find out who acted as music supervisor’s during production. Also, a website like musicregistry.com will sell directories, which include the names and contact information of various music supervisors in the film and television industry. 

Step 2. Understand how and whether I can license my songs for use in a film. The music business is complicated. Anyone who says differently has never worked in the music industry before. I will make the following portion of this article as simple as possible.

There are two things a music supervisor will need before they can include your song in a film – a synchronization license and a master use license. The question then becomes whether myself or my band have the right to provide such licenses to the music supervisor. There are two ways of knowing whether you or your band have such rights:

1: Find out who owns the musical composition.

If I write a song called, “The Guess Who Rock” (and they do), and I solely contributed to the creation of the music and lyrics of the song, I own the musical composition. I could have also written the song with my band-mates, and in that instance, the band may own the musical composition. It is also possible that myself or my band signed to a musical publisher and assigned the rights in the musical composition to the publisher. In that case, the band and its publisher may own and control the musical composition.

Step 2: Find out who owns the master recording.

If I record the song, “The Guess Who Rock” in the basement of my house, the master recording becomes that recorded version of the musical composition. However, in many instances, if a band were signed to a music label, chances are pretty good that the rights in the master recordings have been assigned to the record company. So, in many instances, a record company may own and control the master recordings. However, if I have no affiliation with a label and I’ve recorded the musical composition on my own, I should own and control the master recording.

Why does ownership in the musical composition and the master recording matter? Because, in order to license music in a film, you need to license the use of the musical composition ( typically called a Synchronization or “Synch” license, because you are synchronizing the composition with visual images) and a license to use and synchronize the master recording of the musical composition (typically known as a Master Use license).

Get it? The music supervisor needs two license to put a song in a film – Synchronization and Master Use.

Finally, what fees can musicians expect from the sale of these licenses and what sort of deal should I make if the film producer wants to use my songs on a film’s soundtrack? These topics and more will be included in Part B of this series.