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Author:  Jonathan Channon Director of Film TV and Media, EMI Music Publishing

Introduction to Music Rights

Before using any piece of music in any film production, it is the producer's responsibility to obtain the necessary permissions and clearances from the relevant rights owners. Without the appropriate clearances being secured, the producer may infringe copyright which could lead to court proceedings and even the production of the film being stopped. If the correct procedures are adhered to, however, the rights clearance process should be relatively straightforward.

Some Important Terms in Music Licensing

Commissioning Fee: The fee paid to the composer or songwriter for the composition, recording, arranging/orchestrating and delivery of music to the film.
• Synch Fee: The fee paid to a publisher for synchronisation of the song or work as part of the soundtrack for the film.
• Master Fee: The fee paid to a record company for use of a master recording (tape or CD) for synchronisation with the film.
• Musicians' Costs: The fee paid to musicians on an hourly basis for performance of music for synchronisation with the film.
• MCPS: The Mechanical Copyright Protection Society. The MCPS collects and distributes "mechanical" royalties to its composers and music publisher members. "Mechanical" royalties arise wherever music is synchronised onto any mechanical format, including CDs, cassettes, or an audiovisual soundtrack.
• PRS: The Performing Rights Society. This collects fees for the public performance and broadcast of musical works and distributes it to its writer and publisher members.
• Public Domain: Music and lyrics that are out of copyright and freely available. works enter the public domain 70 years after the death of the last surviving writer. However, a new copyright (lasting 50 years) can be created through a new arrangement of a public domain work.
• Soundalike: A recording deliberately intended to sound like the original, but not "passing off" as the original.

Preparing a Music Budget

With the rights to use commercial recordings costing around £3000 for 30 seconds, it is clear that creating the soundtrack for a film can be an expensive business which must be factored into the film's budget as early as possible. A key decision is whether to build the score from pre-existing recordings (for which license fees will have to be paid) or to commission a new score, in which case the composer(s), musicians and recording costs will have to be paid. The costs of commissioning a score will depend upon the status and track record of the composer, the quality (or fame) and number of the musicians required (session musicians usually cost around £100 an hour for a minimum two hour session) and the studio time that will be needed for the recording. Prominent composers and artists will usually have contracts that allow them some say in how their music is used in the film.

Developing the soundtrack can be made significantly easier by employing an experienced music supervisor to oversee the rights clearance process. They will be able to liaise with the publisher, who may be willing to package material from the same or different artists to reduce costs. Publishers will also have an eye on the prospects for a soundtrack album from the film which may make it possible to negotiate a better deal for the film usage rights, although this might also mean that they will try to get tracks from some of their less well known artists onto the soundtrack. Film rights are becoming increasingly important to music publishers as record sales fall but, other than for very big films, they are unlikely to offer advances against revenues from the soundtrack album.

Where the composer is a member of the PRS and the film is released in the US, the UK Producer will be responsible for paying to the PRS a US theatrical license. If the film's budget is below £4 million and it takes less than $2 million in Gross Box Office receipts in the US, then the amount due will be a straight fee of £750. If the film is of a bigger budget or takes more than $2 million, a higher fee depending on the length of the film will apply (eg. c. £13,000 for a ninety minute film). PRS licenses in the UK are paid (effectively by exhibitors and distributors) as a percentage of box office receipts. The current rate is 0.917%, netting the PRS around £6 million from UK cinemas in 2002.

Essential Steps to Creating a Synchronised Soundtrack

i) clear both the master and publishing usages and negotiate the fee payable to the copyright owner. Make sure that you get actual clearances - not just quotes;

ii) be aware of the difference between background, featured use, timings and opening and end credits and make sure that "in vision" usage is specifically cleared before shooting starts;

iii) consider how best to put together the soundtrack using both pre-recorded music and new composition - is it possible to use the same artist employing both their back catalogue and new material? Could the cost be reduced by using newer bands without undermining the artistic integrity of the film?

iv) negotiate the best payment terms, including looking at deferred payments connected to the box office performance of the film;

v) always make sure that you have cleared 100% of the song - where rights are split it can be easy to overlook some of the rights holders. This includes checking that session musicians have been paid;

vi) avoid "most favoured nations" agreements, where the costs of securing one track can rise to match those of the most expensive track;

vii) make sure that the music cue sheet is accurately filled in to show what music has been used and for how long; This will be the basis for payments to collecting societies all around the world;

vii) consider using library music for stock shots to help spread your budget. Library material can be procured for around £400 per 30 seconds.

Music Publishing Rights

The producer should look to negotiate a share of the music publisher's net revenues from:

• television broadcast
• the original soundtrack album
• sheet music sales
• use of the music in commercials
• re-recordings
• use as a ringtone
• the theatrical release

(Video rights are generally bought out in advance.)

Alternatively, the film's producers may take the publishing rights for original scores themselves. This can enable them to offset some of the cost of procuring the music against a stream of future revenues from the music rights. Whether or not these rights can be acquired depends to a large extent on the relative bargaining positions of the producer and the composer - a less well known composer might well be willing to sign away rights in return for their fee and the exposure that the work will bring them.

Top Tips

• Plan the music for your film, and contact the rights holders, as early as possible. Always ensure you have written confirmation of clearance before you begin shooting.
• Factor in rights acquisition for any music you commission.
• Create a realistic budget for your music - never assume that any part of this will be offset against soundtrack album advances.
• Never assume that a song is written by the recording artist - always make sure that 100% of rights are cleared.
• If in any doubt about the rights in any piece of music - check.