Intellectual Property: Music Licensing: Similar to the copyright that a filmmaker may have in his work, composers and artists performing music also have copyrights in their works. Accordingly, a filmmaker cannot generally take a commercial CD that he has purchased and utilize songs as the film’s score. Rather, permission and/or licenses need to be provided for the music.

It is likely that a filmmaker will need to enter into both (1) a master use and (2) a synchronization license for each of the musical pieces that he utilizes in the production. A master use license is one which grants the licensee the right to use a specific recording in a production. A synchronization license (also referred to as a “synch license”) grants the right to use a song in timed relation to a visual work (e.g., film or television production). Accordingly, musical compositions used as background scores for film and television require a synchronization license (and generally, a corresponding synch fee). The essential difference is that the synchronization license attaches to the underlying composition, whereas the master use license relates to the actual recording. In other words, if the filmmaker simply wants a song in the background and does not care if it is a particular artist’s version of that song, he may be able to have another artist (perhaps an unknown) perform a cover of that song.

Use of the song itself requires a synchronization license. It is the use of the actual sound recording by a specific artist that requires a master use license. Assuming that the filmmaker hires an unknown artist to perform the song, the filmmaker may be able to obtain the master use rights from the unknown artist far more cheaply than obtaining the rights to a popular artist’s master recording.

“Music clearance” is often referenced as the process of determining what permission is needed to make use of a piece of music. This is normally done by ascertaining the owner(s) of the music; contacting the owner(s); negotiating an appropriate license; and entering into a written agreement regarding the same. As discussed, permission (in this case in the form of music clearance) is required if the filmmaker plans to use music for any of the exclusive rights granted to a copyright owner (i.e. copy, distribute, make derivative work, perform or display). Incorporating music into a production will arguably fall into all of these categories.

Music clearances are generally negotiated by an attorney. The license fee that is requested of the copyright owner can range quite a bit and depending on various factors (i.e., owner(s), popularity of the work or the specific use being requested). In certain cases, it can be quite costly. Nevertheless, it is extremely important to obtain these rights, preferably sooner rather than later. In the event that rights to certain music cannot be obtained, it is generally easier to switch out the music earlier in the production process rather than after the fact.


© 2009 Nissenbaum Law Group, LLC

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