By Doug Wood
Q. Have a show on a local access channel on my cable system. The cable system has a license from ASCAP and BMI. Do I need any other licenses for the music I use in my show?
A. The answer, most likely, is “yes.” ASCAP, BMI and SESAC license what are called the “public performance” rights for music - the right to transmit the music over the air or through a cable to the audience. If your show is strictly limited to live performances of music, you may not need any other license. But if your show contains any pre-edited sequences with music, or if you plan to put the show on a web site, archive it for re-use or make copies to sell (or give as a premium in return for contributions) you’ll need additional rights.
Synchronizing music with any visual or other audio element (such as making a pre-recorded opening for your show) requires the permission of the copyright owner of the music and the sound recording. Don’t bother trying to use pop songs for these kinds of uses - the fees for synch licenses can run well into five figures. You can hire a composer to create something for you, or use “production music” - music created to solve this problem by providing pre-cleared music tracks at reasonable licensing rates.
If you’re going to make copies of programs to sell or give away, you’ll need a mechanical license as well as a synch license. Once again, a composer or production music library is your best solution.
Q. I’m a documentary filmmaker, and I’ve found a composer whose music I think would be perfect for the project I’m working on. He wants to do the score, but neither of us are sure what kind of an agreement we need.
A. There is no substitute for a clear and unambiguous written agreement, negotiated before anyone does anything, and that certainly applies in this case. Who will pay for musicians, or recording expenses? Who will own the copyright in the composition? In the master recording? Will this be a “work for hire,” or will the composer retain the copyright and license the rights to you? All of these questions will require a discussion. Once you and the composer have agreed on these points, ask a qualified attorney to draw up a simple agreement for you.
In many cases, the best way to proceed is for the composer to write the music, create the sound recording, and grant you an exclusive license to use the music in your film. The composer retains the copyright, and the ability to re-license or re-use the music at some point in the future (say, after five years). The license fee should be understood to cover the composer’s creative fee and any costs related to recording. The composer should retain the right to collect fees for public performance through ASCAP or BMI.
In some cases, it may be appropriate for you to ask the composer to create the music for a lower fee, with the understanding that if you are able to secure commercial distribution of the film or license it for television or cable, the composer will receive an additional bonus amount.
Q. A few years ago the Admissions Department at our university hired a local video company to create a recruiting video which we sent out to prospective students. We’d like to use portions of that video in a new production we’re creating in-house for the school’s web site. Do we have to re-license the music?
A. The answer is almost certainly “yes.” If it was an original score, the composer would need to consent to the new use, and probably be paid an additional fee. If the music came from a royalty library, the fact that it is being used in a new production means it needs to be re-licensed. And even if the music was from a “buy-out” library, the rights to use the music were granted only to the original production company, not you.
(It’s also important for you to check your agreement with the production company to see who owns the copyright in the original video itself, and whether you have the right to create a new or derivative work which uses portions of the original.)
Q. I have a friend who recently retired from the video production business. He had some production music CDs he had purchased over the years, and offered them to me to use. Do I have to pay for the music again if he already bought it?
A. Well, you certainly need to be careful. Chances are you’ll have to re-license the music to use it in your own productions. I recommend you contact the music company directly to be sure.
The words “buy-out” and “royalty free” have been used so freely over the past few years that it’s hard to know exactly what you’re getting. Most companies that offer “royalty free” music have a long list of exclusions and legal provisions that limit what you can use the music for. And in most cases, the license only extends to the original purchaser; re-selling is not permitted.
For royalty-based production music, blanket licenses usually grant rights that exist in perpetuity for productions created during the contract period, with no continuing payments required. To use the music in a new production, you’ll need to obtain a license.
Q. Students in my college communications course are required to create a short video advocating a political position. We post the best videos on the college web site. Is it OK for the students to use popular songs in the videos, since it’s for educational purposes?
A. The fact that students are creating the videos within the context of their school work does not exempt them (or the college) from the copyright law. The “fair use” doctrine often cited in cases of educational use pertains only to excerpts of copyrighted works used in classroom settings for instructional purposes.
Most colleges offering communications courses provide students with the necessary tools to do the job - cameras, lighting equipment, microphones, editing software, etc. Providing a source of copyright-cleared music for students to use helps prepare them for the real world, and avoids the serious legal and economic consequences of using music without permission.
And it’s not just the students that might be in trouble. If the institution fails to provide a copyright-cleared option for students studying communications, the school itself could have legal exposure.
Q. I’m converting a power-point presentation to video, and want to add some background music to my voice-over narration. This will only be used in sales presentations for our company. I want to use The Beatles’ “Here Comes the Sun.” Do I have to pay royalties to someone?
A. Well, you’ll need a synchronization (“synch”) license from the music publisher and a license to use the sound recording (or “master”) from the record company. Getting permission can take a while and the cost for the licenses may be significantly more than you or your company is willing to pay.
You can locate the publishers of most popular music by searching the databases at ASCAP (ascap.com) or BMI (bmi.com). The publisher can also steer you to the record company controlling the sound recording.
As an alternative, there are many production music libraries that offer low-cost solutions for copyright-cleared music. You wont get “Here Comes the Sun,” but on many production music sites you can search for music using keywords like bright, optimistic, medium-tempo, acoustic guitar, or even “Beatles” to find tracks that may fit the mood you’re going for.
Q. I want to use a version of Beethoven’s “Für Elise” as the theme music for my internet radio program. If I record my friend playing the music, do I need to pay royalties to anyone?
A. No! So long as your friend gives you a release to use his or her recorded performance, you’ve completely avoided any legal liability for the music, because the composition is in the public domain.
Using public domain music (music on which any copyright has expired) is one way to avoid any licensing fees for music, but beware: modern recordings of public domain pieces are themselves subject to copyright. In other words, Beethoven’s Ninth Symphony may be in the public domain, but the recording made by the Berlin Philharmonic is definitely NOT!
SIDEBAR: Glossary of Terms for Music and Copyright
ASCAP - The American Society of Composers, Authors and Publishers licenses the performing rights to music created by its 400,000 members. ASCAP is a performing rights organization, or “PRO” owned by its members.
BMI - Broadcast Music Inc, another PRO similar in size and scope to ASCAP, but owned by broadcasters.
Blanket License - A flat-fee license which does not vary with music use.
Buy-Out - A license in which all future claims are relinquished by Licensor.
Composition - A set of musical ideas and patterns, often including words. This is separate from the sound recording of that composition, and different licenses must be obtained for the use of each.
Copyright - A property right which gives the owner of a work a bundle of exclusive rights, including rights of reproduction (Mechanical Rights), putting it to picture (Synchronization Rights) and public performance (Performance Rights).
Harry Fox Agency - A licensing arm of the National Music Publishers Association that negotiates and issues mechanical licenses on behalf of its members.
Master - See “Sound Recording.”
Mechanical License - A license granted by the copyright owner permitting the mechanical reproduction of a composition, such as making compact discs, duplicating music files, or allowing downloads. Duplicating the sound recording of that composition also requires a license from the owner of the master, usually the record company.
Music Library - A company offering a selection of production music tracks.
Needledrop - A single use of a recording in a single production. The word comes from the world of radio production, where the engineer would literally “drop the needle” on a recording of the show’s theme music at the beginning and end of each show. Each of those uses was known as a needledrop.
Performing Rights Organization (a.k.a. “PRO”) – an organization that collects and distributes fees for the public performance of music owned by its members or affiliates, who are the creators and copyright owners of the music. In the USA, the three PRO’s are ASCAP, BMI, and SESAC.
Production Music - Music created, recorded and distributed specifically for use in film, television and other media productions.
Public Performance (Performing Rights) - Performing a work at a place open to the public, or any place where a group of people beyond a normal circle of family and friends may be gathered, or to transmit the work by any device (such as via TV, radio or cable). A license to do this must be granted by the copyright owner, or by the performing rights association to which the copyright owner belongs. Licenses for public performance of sound recordings are currently only required for digital transmissions. See Sound Exchange.
Royalty Free - A catch-all term generally implying a buyout of rights, but terms and conditions vary widely.
SESAC - Originally the Society of European Screen Actors and Composers, SESAC is much smaller in size than ASCAP or BMI, and is privately owned.
Sound Exchange - A licensing organization which collects and distributes license fees for the public performance of sound recordings in all digital (satellite and internet) media.
Sound Recording - An audio file embodying a recorded performance of a composition. The owner of the sound recording may be different from the owner of the composition. The sound recording is often called the “Master.”
Synchronization License - a license permitting the synchronization of a copyrighted work with a video, visual images or other audio sounds.
Work for Hire - A work agreement under which the employer becomes the legal “author” of the work, and enjoys all the protections of the copyright law as author.