Post-Production : Licensing Music by David Peacock

this was one of my questions I asked a good friend today. His reply was if its in the public domain, you are able to use it. Even music of Elvis Presley, but if its not, then you have no rights, unless the artist, or company can give u a release on the work. Ive also used many artists music, which fitted perfectly with my short films, but now have re- render my work with other music instead. Lots of work ahead, and more searching. I hope you hear from those companies. Try reaching them via fb pages, maybe they reply on fb. Maybe someone on stage 32 has better replies. wish u best with ur short film for the festivals. Good luck :) Kimi

Contact a music clearances supervisor or an entertainment lawyer who specializes in music. Either of these can help you cut through the red tape. Unless you happen to contact the correct person who deals with the clearances at the company who owns the license to the music you want to use, most music companies will ignore your emails. You must obtain a release for any music you want to use, (and in this case pay for the licensed use of the music in a filmed work) no matter where you may have obtained the music from. Best of Luck!

It's never a problem to use anyone's work... any way you want... until the money shows up! Money changes everything. As an artist, I won't sue someone that doesn't have any money... That would be a waste of my money. A lot of people make low budget films that get away with using material without a license because there's no real chance for the owner to recover money from the film maker. When the crowd sees someone getting away with it, they incorrectly believe it's OK. So I guess the question is... "What do you have to lose??"

Unfortunately, it is serious business, and you no more want to commercially use music uncleared for the legal rights to do so than you want to mess with the Mafia. Even if you want to use classical music pieces which are in the public domain, you can't just use the music from a CD you've bought. Why not? Because of Performance Rights. The way a symphony sounds when performed by one orchestra under one conductor will not be identical to the way the piece is interpreted by another orchestra under another conductor. The legal entity embodying those groups of musicians will own those rights. If YOU can play "Moonlight Sonata" on the piano and record it, you can feel free to use it in your film without it costing you anything except for making the recording, because you will own your own performance rights. I assume that, previous to your post here, you have emailed "record" companies like, say, Sony... if so, check the fine print in the liner notes for the songs' PUBLISHERS. They are the companies you'll have to contact. Be prepared for well-known pop music licensing fees to run in the thousands of dollars for one song, with a menu of rights to choose from, such as one-time North American and many other bundles. For contacts, The Music Publishers' Association of the US is here online: http://www.mpa.org/directory-of-music-publishers/

Thanks for all the comments. The basic problem is reading the minds of music publishers. There are major publishers and minor publishers. First, I have 5 songs in my film and they are obscure songs, by minor labels. If I were using notable songs or best selling recordings, I would certainly want a license. Since they are obscure songs, we are guessing if a minor record company has agents looking around for infractions on their license. There are too many films made today for this kind of research. There are millions of YouTube videos published for them to police all of the unlicensed music. I found some one of the same songs I use in a published Vimeo video. Perhaps my film is shown and someone is in the same network as the music publisher and they notify the music publisher. Now the music publisher has to determine if they want to sue. It will cost them money to sue. If my film has made money then they know the possibility of a financial gain is a favorable outcome. Let's say my film is shown in some film festivals, I do not make a profit. I only profit if I can sell to a distributor. My film is amazing, but the probability of getting a distribution are small. If my film is shown and the publishers contact me, I could then negotiate a license. If I got a distribution deal, then I would have distribution company assist in obtaining the rights to the music. Also, if I am accepted into a film festival, I plan to form an LLC. This should personally protect me from lawsuits. The entire process is frustrating, because I certainly want to share any profit with the music makers, but if their is no profit, then they gain by getting their music exposed to new listeners. I have tried to contact them and they ignore me. I have shown the film to about 12 people and all of them say the music is one of the best parts of the film. Without this music the film fails.

No offence, David, but why were you asking for advice in the first place? I mean, you'd obviously made up your mind to go ahead and use the songs anyway.

I am looking for a flaw in my approach to this problem. I respect all of the comments because they help me see all sides of this issue.

Hi David, the Harry Fox Agency (HFA) is the premier mechanical licensing agent and provider of rights administration services in the U.S. www.harryfox.com Get in touch with them. They will tell you what to do. ;)

I'll preface this with "I am NOT an attorney", but I have dealt with Universal, Sony and others- the flaw in your logic is assuming the music companies are even remotely interested in wasting time on your project. I don't say that to put down your project, it might be breathtaking and be wonderful... Its just that it will take lawyers and money to get anywhere with them. Step 1. Just buy stock music with the licenses included, or purchase buy-out tunes, or get a composer to write the stuff for you with a work-for-hire. Getting a large music company to even begin negotiations requires, unluckily, a professional music supervisor and a good music attorney who know how to negotiate the byzantine paths of the music business. Secondly, even if you could get them to talk... the cost for a piece of music can easily be tens of thousands of dollars, if not more... plus of course the lawyer fees to do the contracts, and the accounting fees when they call to get a professional audit to see if you owe them money. Third, You're dealing with not only the SYNCHRONIZATION rights to the music, but you have to deal with the MASTER rights as well. That is you not only have to get permission for the recorded song, but the right to use the copyrighted underlying music as well. And doing a deal for a separate soundtrack is even harder... You can easily find yourself dealing with the Musicians, the publishers, and the record label. SO, just don't ... unless you have time, money and your project offers value to them.

oh. and the solution for your project.... hire a composer to write a "sound-alike" score.

here's a link to more details: http://www.ascap.com/music-career/articles-advice/film-tv/how-to-acquire...

Hi, David! If I can recommend an assist in this area, please take a look at http://linnetteharriganmedia.com

David, when you try to sell your film one of the first questions you will be asked by a distributor is: "do you have licenses for your music?" If your answer is no it may screw up the deal because the distributor will know there is additional costs that will have to be paid...even if it is to replace music. Dubbing sessions cost money. And, why would someone want to give you money and absorb the liability you have created? I've seen this happen all to often. Paying for licenses protects your investment in the film. If you can't obtain a license (even a festival license) you are better off replacing the music.

You will not be able to distribute your film with unlicensed music. Showing it at a festival with unlicensed music is also risky. If the movie is a "shelf-film," meaning it's just for you to show people and will only really sit on your shelf, you can do what you want. If your film goes anywhere into the public eye, you could be setting yourself up for a law suit. As perfect as you think the music is, obtaining a license for a particular song can be very expensive. You are now just so used to hearing the music that it seems to be the only option. If you are trying to get your film into festivals, you should be open to finding alternate music. You can find stock music at sites like revostock.com or try to find some indie bands who just want their music out.

Hi David. The short answer is you should replace the songs with ones you can acquire the rights to at a price you can afford and hire a music supervisor or a rights clearance consultant to do the job. Stay away from licensing music from France because their laws pertaining to artists are different than ours (i.e. droit moral). What you are going through is commonplace (known as "temp love" in my field) so don't be alarmed. I have replaced songs for filmmakers before with ones they liked as much as the temps and even more so (and sometimes saved them money also). For the respondents in this discussion, 1) some fests such as Sundance do not require rights acquisitions as a film submission requirement but if the film is selected to be screened then it is a requirement. 2) Be careful with sound-alikes because if one sounds too close to the original artist, that artist can sue. 3) Unless a work is in public domain, you must at least obtain consent from the repertoire owner. Compensation is not the only issue. 4) Copyrights are not waived. They have an expiration date then fall into the public domain.

Hi Lee, that definitely sounds frustrating! There's all sorts of challenges with Youtube's auto-matching software. Apparently music that contains a similar loop or beat might be incorrectly identified. Its a huge issue for both musicians and filmmakers alike!

Everyone discussing public domain music, please keep in mind that with recent copyright changes there are no public domain recordings in USA. David, what companies are they? I have worked with music copyrights and clearances and might know someone who you can talk to. Sometimes these things take months to get a response to so having an actual phone number might help!

This supports what you said, Janal. http://www.pdinfo.com/Copyright-Law/Public-Domain-Sound-Recordings.php

"ALWAYS ALWAYS if you want to COPYRIGHT your work put that (C) YEAR YOUR NAME on your writing. Even if it's on a napkin." Actually, under current U.S. law creators have automatic protection, much as they do here in Australia. (You can formally register a U.S. copyright, but that's a different process from just writing (C) on it.) The purpose now of the (C) notice is simply to inform people you hold the copyright. Also, as a general thing, while many works are indeed in the public domain, you should never just assume this in any given case, as the rules do vary from country to country and have grey areas. Sorry for nitpicking, Alle, but I believe some of what you say here also has the potential to be misleading, which I'm sure isn't what you want.

Also, Janal was specifically referring to public domain recordings, not public domain works in general. EDIT: and in fact it appears she's basically right- it may not be quite literally the case that there are no public domain recordings in the U.S.A., but there are very few indeed.

"Rachel, actually under NEW USA laws as at January 1, 2014, not complying with MARKING your work as copyright places it in the public domain. " Alle, what's your source for this? Mine was the website of the U.S. Copyright Office. Are you saying they're wrong? In that case someone really needs to tell them! Also about what am I supposed to be "out of date, in Australia"? Sorry for being dense, but I actually can't work out what point you're trying to make there. Finally, my information is that, while* in theory* public domain recordings may exist in the U.S., in practice there are virtually none- which is, surely, the relevant part. Now, look, from your tone it appears I've offended you. I can only say that I was actually trying to phrase my comments so as not to do so.

In fact I am going to write to the U.S. Copyright Office and ask them for an explanation, as if true this seems really an appalling oversight on their part. EDIT: Have done so; awaiting reply. They say it may take up to 5 business days, however.

This gets stranger and stranger. This chart http://copyright.cornell.edu/resources/publicdomain.cfm specifically claims to represent the situation as of Jan 1, 2014, yet makes no mention of any changes to the law which would supersede its information. What is going on? EDIT: And I have now consulted numerous sources and all state that copyright is automatic and say nothing of the US (or Australia) no longer adhering to the Berne Convention. Alle, is it possible that you could be mistaken?

Well, actually they’ve already lost it, because they were published before the law was changed to make “marking” unnecessary (i.e. it wasn’t retroactive). What I can’t find is any reference, anywhere, to this new law Alle Segretti mentions. I have looked at the website U.S. Copyright Office, and the Australian Copyright Council and read all their handouts and press releases… I have consulted every legal advice website and relevant academic website could find… I looked up lists of copyright acts… nothing. Yes, I’m not kidding, I actually spent a ridiculous amount of time on this! I’m finding it very hard to believe every informational site could have failed to even notice such a major legal change.

Well, the Copyright Office answered my enquiry as follows: "Generally speaking, your friend is incorrect and the facts are as stated on our website". I believe that settles the matter. Alle, I'm sure you were acting in good faith by telling us of this "new law", however I really think you should, at the very least, have done some basic research before stating it as fact.

You need a license for even "just" festival use. Also, your distributor will ask for copies of your licensing agreements as part of your deliverables. If you think no one will find out because they are small artists on small labels then visit Tunesat.com for a wake up call. If you're a filmmaker, you know you need a budget and if you have a budget that will have to include money for music. Find a great composer and pay them. Find great bands and license them. You can get all of these things at a workable price if your film is good/promising. Do not use royalty free music sites. You'll get what you pay for and it won't flow like it should. Distributors see a lot of product come across their desk and they can spot shortcuts from a mile away. My opinion is do it right or don't do it. Shortcuts devalue your film. Find creative solutions if you don't have much money. Best of luck!

http://www.imdb.com/title/tt3715058/

Since there is some interest in this subject, I want to follow up on my progress. I am learning this slowly and as Plato says, "Never discourage anyone who continually makes progress, no matter how slow." First off, to find out music publication information many people suggest the search engines at ascap.com and bmi.com I could not find my music on these search engines. From what I notice they list only famous songs that are big hits. I found a site called AllMusic that has all of my music, even minor label music in France. Here is the link, http://www.allmusic.com/advanced-search I was able to contact one French musician on Facebook and he is interested in my project. He promised to put me in contact with his manager at the record company. Three songs are by American composers and performers. These songs were written and performed between 1923 and 1977. My film is a low budget Independent film and I have to get Master Recording rights and Synchronization rights. Basically rights from the people who wrote the song and lyrics, and rights from the performer on the recording. This 10 licenses. This will take me too much time, I need a professional. I want to submit my film this summer. Today I am submitting my information for 5 songs to a Licensing Clearance Company. I will see if I can afford to pay the fees.

Send me your budget and song/music information. I may be able to help you with replacement music that is cleared on all levels that may actually work better, not only for your budget, but for your film. info@taemusic.com

David, hope all goes smoothly. If not– one thing that I don’t think anyone has asked is: why are these particular songs irreplaceable? Is it something in the lyrics? Now, an update to the copyright-marking affair. The Australian Copyright Council has also replied to my enquiry, and they tell me that, contrary to Ms Segretti’s assertions, there are no plans whatever to remove automatic protection in Australia, either. Again, I don’t know how Ms Segretti came to be so certain of her “facts”, but I really believe she should stop representing herself as an authority on the subject- especially not with the vehemence shown in her earlier posts.

I suggest that the next time this happens, go to http://linnetteharriganmedia.com We specialize in media content & have a catalouge worthy of all music genres.

"Good faith effort" will not stand up in court. Copyright infringement is non-negotiable and they WILL pursue. They don't respond because they don't have to. It is up to you to make the right decision (which by the way, is to steer clear of ANY copyrighted music that you do not possess a legal sync-license for). They are allowing you to place the noose around your own neck... in the end, (as you ponder your mistake from a jail cell!) you will have saved money by hiring a composer to score your film... Be smart... make the right choice.

http://www.seedandspark.com/content/keep-it-clean-chain-title-documents-...

Rachel Miranda Jones thanks for your follow up. Most of the participants here were reasoned and respectful, Ms. Segretti was the only one who attempted to humiliate me. Her remarks are hypersensitive, abusive, hysterical and paranoid. In my circle we call this Bi-Polar behavior. To follow up on my quest, I was able to make contact with about half of my music license holders. I decided to wait to see if my film was accepted in a film festival before I put out the money to purchase the license. My film was rejected by 12 festivals so there is no need to buy a license at this point. There is one more festival that decides in December. After that I will consider posting the film on YouTube of Vimeo. I am already working on my next film.

Good luck, David!

Always, always put the C and the date on your movie. George Romero's Night of the Living Dead is THE example of what can go wrong if you don't. It was released without the Copyright marker, and was instantly in the public domain (one of the reasons it played on late night local stations on things like "Creature Features" was because they didn't have to pay anyone to show the movie, At least one documentary ended up owing Warner Brothers a heap of money. Eyes on the Prize got stuck in "do not broadcast" limbo for years because someone sang Happy Birthday to Martin Luther King, Jr. in the movie. I consulted ASCAP for the use of "La Mer" by Charles Trenet for my film, Sans Vie, and they never, ever got back to me about how much I would need to pay them to show the film in small festivals, or just to present a trailer. We ended up getting a bunch of music from folks on MySpace, and it's one of the weakest parts of the film.

I have some songs I own 100% of in my catalog. ;) www.chesneyclaire.com