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WHEREFORE THOU ART #42
Music in Movies

Frequently I'll get a call from a novice filmmaker who and wants to use a particular recording of a song for a project. Sometimes it's just a wish, a preference, a "wouldn't it be nice" to have the song in the film. As often as not, though, it's central to the project, framing a defining moment or the subject of the film, and the filmmaker has come to the realization that maybe it's time to figure out what needs to be done to secure the rights to the recording. Hence the phone call.

Hopefully, the project hasn't moved too far along, because getting film rights for a recording can be a sticky proposition. Sometimes, for a very popular recording, it can be impossible.

Putting a recording in a film involves getting licenses for two separate copyrights. The first is for the song, the musical composition. The copyright for the composition is held by the songwriter, or typically, the music publisher to which the songwriter has assigned the rights to the song. The second copyright is in the performance of the song as embodied the sound recording. The copyright for the recording is held by the performer, or typically, the record company to which the performer has assigned the rights to the performance.

These licenses are often called "synch licenses," so called because they involve synchronizing sound with the visual element of the film. The licenses can be expensive, if they are available at all. Both the publisher and the record company can just say no. And they probably will say no in the case of an low-budget indy film project and a very popular recording.

Now, this might seem to the filmmaker as hideously unfair, that the use of a recording in a film project complements the recording, that the synergy of matching the audio and visual works is the height of creative genius! How dare the bad record companies and publishers get in the way of art?

Well, look at it from the perspective of the companies. Both the song and the recording of the song are properties, things of value. The use of a hit recording in a movie or advertisement can be a six-figure proposition for both the publisher and the record company. And this value will be severely compromised if a recording starts to pop up in all kinds of films, without any control or gate-keeping function. A song prominently featured in a film or advertisement can loose its uniqueness, and hence its value, for subsequent uses. So it makes sense, from an economic standpoint, that the owners of the rights are going to be a little picky about where and how they allow their works to be used.

And in addition, the rights holders have the integrity of the works to consider. Maybe a publisher doesn't want to have a song in a slasher film! Maybe a recording artist doesn't want to be associated with the political or societal point of view of a film. A recording well-placed in a film can not only drive the emotional focus of the film but can also become inextricably associated with the film. Under copyright law, the owners of the song and the recording generally have the right to determine the nature and extent of the usage of their works in other people's films.

So what's an indy filmmaker to do? If the hit recording is absolutely essential to the film project, one last-gasp alternative would be to approach the publisher and record company for a limited "festival-only" license. These licenses allow the use of the music in films only for film festival screenings; if the filmmaker has the opportunity to show the film in other settings a new license will have to be negotiated. If the film is a hit at the festival and gets picked up for theatrical or DVD distribution, the filmmaker has some leverage to justify the broader license. At the same time, the rights holders don't risk the rampant dilution of the recording's value, because the film will only be shown in a limited setting.

Don't expect to get a license like this for current or classic mega-hits, or particularly iconic musical works. But for moderate hits and catalog works, publishers and record companies may well take the bait and allow a filmmaker to use a recording for limited purposes, often for free or for a nominal charge.

If this doesn't work, give up on the big hit songs and look elsewhere. More than ever before, original music is everywhere; there has never been a better time to match music with a film project.

There are a number of on-line providers of music for multi-media projects, and many of them are insanely simple and inexpensive. Two of the more popular online music providers are Rumblefish.com and PumpAudio.com. Each have massive catalogs of music and sound, searchable by title, artist, genre, and even by vibe and attitude. Both specialize in truly "independent" recordings, that is, recordings owned by the artists who have also written the songs, so the whole need for the two-step dance with record labels and publishers is avoided. Each service provides for instant, online, click-through licensing. A filmmaker can simply log on, preview music, then input a credit card number and go away with fully-cleared music from which a film score can be built. Voila.

There's another alternative, which might be even better and chaper: a budding film maker can just look down the street. Go local. I think it's safe to say that today, in any town in the country, there are musicians who possess both the talent and technical ability to score a film. And even better, many of these musicians would leap at the chance to do it, just for the asking. People are recording more original music today than ever before, and everybody is looking for an outlet, looking to be heard. Break-out indy films have made many a musician famous, so it is an entirely reasonable proposition to ask a local band or musician to score or contribute to a score of a low-or-no budget film for little or no money upfront, in return for some "back-end" participation in the event the film makes any money. An offer like this can be incredibly appealing to local musicians, especially young and amateur musicians, and it can add an incredibly personal and unique slant to a film. It's an incredibly stimulating creative experience for all involved, and it holds at least the aura of promise of fame and fortune.

Which is, after all, what it's all about.

© 2005 Paul Rapp
This article originally appeared in The Artful Mind and is intended to provide the reader with an awareness of intellectual property law and not legal advice.