Legal Issues in the Music Industry: Music in Film & TVAugust 7, 2015

Legal Issues in the Music Industry: Music in Film & TV

This is the first blog of many that will focus on the diverse legal issues that affect musicians, artists, songwriters, and other music industry related entities. I routinely get asked the same questions over and over again which I will attempt to break down and answer here in “plain-language”while providing a broad overview of the rights and factors that should be taken into consideration.

Question: My roommate’s brother/cousin/mom knows a guy who works on a TV show and they want to use my song on the show. What do I tell him? Short Answer: Tell them to send over a license.

Long Answer: This is the first entry because it is definitely one of the most common questions I hear. Music licensing for film and TV has become one of the most competitive and beneficial areas of the industry for young artists. As sales of physical albums and downloads have decreased placements of music in Film/TV has created an important revenue source while also offering an artist exposure and access to additional opportunities.

First, you need to know what rights you have. While providing examples I will assume a few things; 1)     You (or your band) wrote the song. Meaning it is not a “cover‚¬. 2)     You have not entered into a publishing agreement so you still own and control the rights in the composition. 3)     You (or your band) recorded the song. 4)     You have not entered into a recording agreement so you still own and control the rights in the recording.

Assuming those facts, you currently own and control two copyrights; one in the composition (the melody, chords, song structure and arrangement) and one in the sound recording (the recorded performance of that composition). They are often referred to as the “Publishing”right and “Master”(which comes from Master Recording) right, respectively.

In order for the film or TV company to use the song they have to first get permission to use both the copyright in the composition and the recording. This is achieved by negotiating and signing asynchronization license for the copyright in the composition and amaster license for the copyright in the sound recording. These licenses typically establish one-time licensing fees payable to the artist (or rights’ holder). There is no set fee or amount per use so the licensing fees a film or TV company must pay to acquire those rights change based on a wide variety of factors including, but not limited to, the “importance”or “notoriety”of the song, the notoriety of the artist, the notoriety of the Film or TV program, the budget of the Film or TV program, the length and specific use of the song, and the length and breadth of the rights granted in the license (for example the Term, Territory, and any distribution limits). Consistent with those factors it would be reasonable to expect that the licensing fee a film or TV company must pay to use a well-known song would be higher than a song by a local artist with very little fan base. They would also typically have to pay more for a 6 year license compared to a 3 year license or for rights to the World as compared to just the U.S.

In addition to the one time licensing fee, the songwriters of the composition would also receive performance royalties each time the program is aired or played. In order to collect those royalties the songwriter(s) must be affiliated with a Performance Rights Organization (“PRO‚¬). In the U.S. the most common PROs are ASCAP, BMI, and SESAC and each songwriter can only be affiliated with one. I will spend more time discussing the role of PROs in later posts.

To sum everything up, before a film or TV company can use your music they have to get permission to use the song from the rights holder of both the copyright in the composition (synchronization license) and the copyright in the recording (master license). The licensing fees vary greatly depending on a number of factors and of course, it is always recommended to consult an attorney to negotiate and advise you on the appropriate licensing fees and other important considerations involved with licensing music for use in film and TV.