How to Get Music Clearance Right
Below we speak to Kathleen Taylor at Film & Ink Law Group PC about music clearance and licencing. We uncover the basics and why - despite the fact it remains ever-complex to this day - it is important to get music clearance right.
What is music clearance and licencing?
Music clearance is the process of obtaining the legal right to use a protected musical property in the way of a composition and recording. Music clearance professionals require specialised training. Their work entails meticulous research, extensive knowledge of music copyright and razor-sharp negotiation skills. They should have an overall understanding of the music business and every conceivable exhibition market or distribution platform. Music licensing is the contract administration portion of the process required to finalise a music clearance. A music licensing professional must understand music law and effectively be able to draft and negotiate a music licence.
Why is it important to get right?
It’s important to get it right because so much can go wrong. Issues that come up could be anything from not obtaining the correct rights, under-clearing a song use, clearing the wrong song, or making incorrect assumptions about the copyright status of a song presumed to be public domain. Even if clearance goes well, a poorly drafted agreement could leave a film or TV production open to legal liability. Overall, common clearance and licensing mistakes can be costly, resulting in expensive copyright infringement claims and even injunctive relief.
Who should be responsible for music clearance?
Many production companies have in-house clearance departments, which are responsible for clearing their own music. However, there are many who do not, and in that case, a music clearance professional should be hired to do clearance work for their project. They will have the specialised knowledge and connections required to get the job done correctly.
It’s important to get it right because so much can go wrong.
Some state that the business of clearing music rights continues to present itself as a complex issue. What aspects remain complex?
This is true, and that’s why it’s always gratifying to complete a clearance successfully. Overall, there are many issues that could emerge, from copyright disputes, incorrect or missing copyright registration, deceased songwriters, appointed trustees not knowing how to administer on behalf of the songwriter’s catalogue, undisclosed samples, or multiple songwriters for one song with several different copyright owners and approval parties, any of which may make clearance and negotiation more complex. A music catalogue may change hands due to a sale or merger, which could make it difficult to find current administration. Also, public domain songs may present a unique challenge due to the lack of clear documentation.
Much can be resolved at an early stage if the correct details about the music can be ascertained; what details are needed?
Ideally music clearance should be contemplated in pre-production. The production should anticipate music costs and have a budget in place for music clearances. There may be music references in a script, music that may not be cleared in a clip licence, or music that is tied to a scene that requires clearance upfront to ensure that it can be used and properly budgeted. Otherwise, music is typically cleared in post-production. With rare exception, if music is audible, assume clearance is needed. In order to effectively research a song for potential use, the production needs to be able to identify the song title, version of the song (i.e. English or foreign language, instrumental), the songwriter(s), and recording artist (providing a pre-existing recording is being used). If a production decides to move forward with clearance, there is other important information required, such as how the song will be used, scene description, whether the use involves a parody use of the song, etc. There is no set cost for music use and no guarantee of approval, so productions need to be prepared to have alternative choices should their first choice be cost prohibitive or denied.
There is no set cost for music use and no guarantee of approval.
How have new issues been presented with the rise of new mediums, such as podcasts? How does the traditional model of clearance and licencing apply?
Mediums are constantly evolving with new technology and platforms, which does impact licence requirements and fees, based on the new medium being cleared. However, the clearance process is fundamentally the same no matter the medium. Fees vary greatly for streaming or downloading rights depending on the type of use. As an example, streaming has become as important as traditional broadcast television rights for audio/visual productions and popular streaming platforms frequently require all media excluding theatrical rights, putting streaming clearance costs on par with television clearance costs. Many productions such as podcasts have little to no money in the budget for music and often request gratis rights or very low fees. Publishers and labels may hesitate to grant licences for small productions because it could be difficult to control monetisation. If the stream is through a platform like YouTube, which has performance licences in place worldwide and distributes income according to use, publishers and labels are more willing to grant permission.
What are the different types of music licences?
There are several different types of music licences, but with respect to audio/visual productions, there is the synchronisation licence (for the use of the underlying musical composition) and the master licence (for the use of the sound recording).
Are procedures more complicated when foreign rights are needed?
Procedures can be more complicated if the worldwide rights are split between multiple parties. In a perfect scenario, you would go to a single music publisher for the worldwide synchronisation licence and a single record label for the worldwide master licence. However, in many cases (such as when the U.S. rights have reverted to the songwriters and/or the artist), you have to enter into multiple licences for the U.S. rights and deal with completely separate parties for the rest of the world. This can be further complicated if the foreign rights are divided, where several licences may also be required.
Film & Ink Law Group PC
1100 Glendon Avenue
Los Angeles, CA 90024
Tel: (310) 689-7291
Kathleen Taylor is an expert in the area of music clearance and licencing for feature films, trailers, television and new media. In addition to clearing and negotiating music rights, Kathleen drafts and negotiates master and synch license agreements, prepares music budgets and analyzes copyright issues. Kathleen’s music career spans across two decades during which she has cleared and licensed music for feature film, trailers, television and new media properties for such clients as ABC TV Network, NBC TV Network, Disney Studios, CBS Studios, HBO, Lionsgate Entertainment, STX Entertainment, Warner Media, E! and UPN. Prior to joining Film & Ink in 2011, Kathleen held positions at Universal Music Group, where she worked in music licensing on both the music publishing and record label side. Prior to working in music clearance and licensing, Kathleen spent several years working in television and feature film production, which gives her a unique understanding of both music and production needs.
Since its founding in 2005 by Natasha Mandich and Trisha Gum, Film & Ink has guided clients through media’s integration with technology, representing both established studios and streaming services on live action and animated projects for television, theatrical, and digital platforms. Simultaneously, we furnish general counsel services to growing companies on day-to-day legal matters such as contract review and negotiation, employment issues, and regulatory compliance. We also advise clients on marketing campaigns, both traditional and in the social media space. Additionally, we possess a core strength in data privacy issues, an area of particular importance to our consumer-facing clients that collect and use customer data.