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.