At the beginning of The Royal Tenenbaums, the famous Beatles song “Hey Jude” prominently plays over the opening sequence. Fans of The Beatles will instantly recognize that it’s not Paul McCartney’s voice. It’s a cover version of the song. Did director Wes Anderson think he could improve upon one of the greatest pop songs of all time? Of course not. The reason we hear a different version is simple: He was able to acquire a "synchronization" license, but not a "master use" license.
In the past I’ve written about the importance of clearing music for your film. This is something that will always be your responsibility. The distributor doesn’t take care of this. When you show at a film festival, you at the very least need a film festival license, and when you’re obtaining that license, you also want to get quotes from the licensor on how much the other rights will cost. That way you will know how much you will need to ultimately deliver the film. This is an arduous task as most labels and publishers really don’t want to deal with indie producers wanting to license music on the cheap. But the key to this effort is persistence. Eventually they will deal with you—more often than not just so you’ll stop pestering them. Often I do this task for clients, and music supervisors (such as Brooke Wentze at The Rights Workshop) can also take this burden of your shoulders. Licensing music has its own industry speak and process that often confuses and seems counter intuitive. Like most industry terms, once you figure out their meaning, the process is a lot less daunting than it seems. So this article is just going to break down a few of those common terms.
Any filmmaker will tell you that music is a vital component to experiencing their film. However, getting the rights to that music can be a complicated process. Music is unique to copyright law because it has two copyrights—one for the song (the musical composition and the lyrics) and one for the actual recording of the song (record, tape, CD, digital file, etc.). So a specific recording may require separate licenses. In the music industry the rights to license a song is referred to as a “side.” A “synchronization license” and a “master use license” are each considered a side. For example, “a thousand dollars per side” means that the synchronization license and the master use license each cost a thousand dollars.
Any time a filmmaker wants to use a song in a film, he or she must acquire a synchronization license. This license only applies to the musical composition and not the actual recording. It allows a filmmaker to reproduce the musical composition and synchronize it with the visual images. Anytime you hear a cover version of a song in a film it is likely because the filmmakers were only able to acquire a synchronization license.
If a filmmaker wants to use a specific recording of a song, such as The Beatles’ version of “Hey Jude,” he or she will also need to acquire a master use license. In most situations the record company owns these rights. When you hear an original version of a song in a film it’s because the filmmakers were able to acquire both a synchronization license and a master use license.
It gets more complicated if the filmmaker wants to release a movie soundtrack. To do this he or she must obtain a “mechanical license,” which grants an individual the right to reproduce and distribute the composition on phonorecords (this is defined broadly to include CDs, records, tapes, and certain digital configurations). If the filmmakers want to include a cover version of a song, he or she is able to do so because the Copyright Act created a compulsory licensing system that allows an individual to obtain a license to create and distribute a new sound recording of a song as long as he or she does not change basic melody or fundamental character of the work (i.e., hip hop sampling is not eligible). However, if a filmmaker wants to use a specific recording of a song on the soundtrack, he or she needs to acquire a mechanical license and a master use license.
In order to acquire a license a filmmaker must find out who owns the copyright. This information can usually be found on the CD packaging (if anyone still buy CDs), the band’s website, or on the U.S. Copyright website. The music artist does not usually handle the administering of licenses. Generally the artist assigns the copyright of the musical composition to a publishing company that administers synchronization licenses and distributes royalties to the artist. A filmmaker should generally contact ASCAP or BMI to acquire the synchronization license. The copyright of the sound recording is usually owned by the record company, which administers the master use license and distributes royalties to the artist. To acquire the master use license the filmmaker should contact the record label itself. Many media companies have set up an easy to use online system, but they are bombarded with requests. So a filmmaker must be persistent and actually call the record label to acquire a master use license. For mechanical licenses, a filmmaker can usually acquire the license through the Harry Fox Agency.
Licensing can be a complicated, frustrating process. Yet, the copyright owners have exclusive rights over the music and using the music in a film will generally not be considered a fair use. Therefore, to avoid litigation a filmmaker must acquire the necessary licenses before including any music in their film.
This is always a depressing thought, especially when someone is doing a music doc or a rock biopic. Those films have tons of songs that all need to be licensed. If you are making a film that is music oriented, make sure you can afford those rights before you are too deep. You may be making a film that is cost prohibitive.
However, and this is a major aside, if you are making a rock doc about David Lee Roth, there is no price too high in my opinion, as I can imagine no more worthy subject than old Diamond Dave. Like, what was he and has the world ever seen anything ridiculously awesome since? Where did he buy his clothes? If you are making this film, you are doing the Lord’s work and call me please.
Special thanks to my associate David Owens, who wrote the lion’s share of this article. He is to law what David Lee Roth is to humanity.
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