As a filmmaker you may well understand the complexities of lighting, editing, mise en scene, and the casting couch, but one element that seems to perpetually confuse us all is the proper handling of Music Rights. Songs dropped into your film without the necessary licenses can kill distribution deals, eject you from festivals, and ultimately get you sued.
I had the opportunity to interview Micki Stern, a music industry veteran, expert in music licencing for all media, and all-around red-hot babe. I asked her some of the most common questions posed by baffled filmmakers. (Disclaimer: Micki Stern also happens to be my wife.)
1. My short film just got accepted to Sundance, but it has a Radiohead song in it. Does it matter if I don't have the rights? Will anyone notice or care?
MS: Actually while you may have gotten away with this in the past, most festivals now require that you show you have cleared the music in your film. This is one of those cases in which "nobody cares" until they find out, and they always find out. When this happens the label or publisher and could stop you from showing your film with an injunction. Often "festival rights" can be obtained for a reasonable fee. Ultimately, it's best to clear the music or not use it.
2. I have a bunch of songs in my feature film that I need to get cleared. Why do I need a music supervisor and/or a clearance person? Can't I just get the songs cleared myself? How hard could that be?
MS: Well you don't need a supervisor or clearance person any more than you need any crew member who works on a film. You could do it all - lighting, camera work, editing, props, and craft service - yourself, but with a specialist you know that you will get the job done in the most efficient, most economical and most stress-free way possible. A supervisor/clearance person can help you navigate the very complicated system of finding, researching and licensing music. If you go it on your own you are likely to end up in what is known as "the bottom of the pile," the dark dungeon on a music industry executive's desk where requests go when they are not properly worded or when the request doesn't actually contain all the necessary information to license a piece of music. Also, there are long standing relationships in this rather small, music licencing community, and connections always help.
3. What are publishing rights? What are master rights? Why does each song need to be cleared twice?
MS: Every song has two "sides" - the publishing rights which are the rights to the actual musical composition(the written music) and the master rights which is the actual sound recording that you wish to use. Also, depending on the number of songwriters involved, there could be multiple publishers who each control a percentage of the composition. Even if you plan to record the "master" yourself, you still need to clear the publishing. In fact, you ALWAYS need to clear the publishing unless the composition falls within the Public Domain, and in that case you still must make sure the "arrangement" of that public domain composition does not need to be licensed.
4. My movie has a bunch of songs written and performed by my friend's band. Is that okay?
MS: This is GREAT as long as your friend's band is not signed to a publisher or record label. Also, even if the music is completely owned by your friend, you should still have a licensing document in place stating that you are allowed to use the music in your film. If they are not charging you a fee, this is called a gratis license.
MS: Many people love those songs, but some bands simply do NOT license their music. Not for you, not for anyone. As they have created the songs, they get to decide whether or not their songs can be used - just as you get to decide if someone else can use clips of your film in their - let's say music video - just because they like your footage. A pretty good way to gauge whether or not a band commonly licenses their music is whether or not you've seen it used in other films or TV. Have you ever heard Beck's "Loser" in a commercial, promo, movie, or episode? It is very rare that you think of using a popular song that nobody else has ever thought to use before.
6. Can I just tell my music supervisor to find me a song that sounds just like Beck's "Loser"?
MS: There are a couple problems with this. If you are talking about licensing the composition Loser and then re-recording it to sound just like Beck, you could be sued for creating a "soundalike." When you create your own master it has to be different enough from the original that the average person can tell the difference. If you are talking about finding something that is not "Loser" but sounds just like it (a common request) you are asking for the nearly impossible. Nothing sounds like Beck's "Loser." That's why Beck's "Loser" is... Beck's "Loser." Sometimes you are better off to just give up a song and move on to something else.
7. Why is it a bad idea to write specific song titles into my script, or have a character sing a Lady GaGa song in the shower?
MS: When you write a song into the script you need to clear that song (get approval to use it) PRIOR to shooting the scene or make sure that you shoot it two ways - one with the song and one without. You do this because if your character is singing the song and you cannot get approval for that song, you will then have to pull the whole scene.
8. How long does it take to get a song cleared? My final mix is in three days... oh, I mean three hours.
MS: Here's what filmmakers don't like to hear - it could take anywhere from a day to a month depending on the song. Some songs have numerous approval parties and those parties could be all over the world. Or there could be a song which doesn't need any outside approvals and you could hear back right away. As a rough "guestimate" I would advise you to give yourself as long as possible to allow for clearances, but at least four weeks to be safe.
9. How much money does it cost? If I have 5 grand set aside for music, what is the best way to use that money?
MS: Music can cost a lot or a little depending on what songs you are going after, how long the term is, the media you are placing it in, the timing of the song, and whether the song used as a background song, a title or a visual vocal. If you hire a professional clearance person she or he could tell you what all those terms mean, help you set a budget and give you a ballpark fee of what it all will cost.
10. Why do record companies, publishers and/or artists ask to see a script or a clip before agreeing to let me use their song?
MS: Labels, publishers and/or artists ask to see script pages or clips because they want to know exactly what is going on in a scene where their song is being used. They will also ask for a synopsis of the film. Here are a couple of examples of why: Let's say the song plays over a scene in which a person is slowly tortured (remember this SCENE from Reservoir Dogs?) The artist may not want to be associated with this type of violence. Or maybe the song plays on the radio and one of your characters quips, "I hate this song - this band sucks". The songwriters and musicians may not be so eager to be the band that "sucks".
11. Why do we need to get clearance rights from 7 different people on this rap song. How can somebody own 7% of a song?
MS: This actually is quite common. It can happen a couple of different ways -- you can have numerous writers on a song and each one controls a different percentage of the song and gets paid based on their percentage, all of which together equal 100% of the song. Or there are songs which contain samples of other songs in them. So the new writer of the song gets a certain % of the publishing rights, but the writers of the original song that was sampled also get a %. All of which still add up to 100%. In order to use the song you need to obtain approval on 100% of the composition no matter how many writers or samples -- and yes, someone who owns 1% of a song can hang up the deal for everyone.
12. In my documentary, you can sort of hear a rolling stones song playing on a car radio. Does it matter?
MS: I don't really feel comfortable answering this because there is a lot of debate over what can be done and what can't in a documentary. There are actually some court cases going on right now over just this question. In general, when in doubt, its best to obtain the rights to cover yourself.