Introduction
There’s a whole wealth of music out there that could really enhance
your audio/visual projects and impress your customers. But there’s
a problem. Literally everything you hear on TV, radio, cinema and in bars
and nightclubs is protected by copyright. And you will face a wall of
expensive bureaucracy trying to gain permission to use it for your own
ends.
But if you really, really think it’s the only option you have,
this article aims to give you some insight into the process of using copyrighted
music on a low budget project.
Let’s Suppose
Let’s suppose you get a job to produce a DVD about the fashion
industry. Some of the footage features a catwalk show filmed at the Fashion
Institute.
On the night, the PA system is pumping out Dr. Dre’s ‘Still
D.R.E.’ at full volume. That’s fine. It adds a real hard edged
atmosphere and sounds great as the models strut down the catwalk.
But here’s the thing. The venue will be covered by an annual blanket
performance license that allows them to play copyrighted music whenever
they like. Unfortunately, your DVD copies won’t be covered by the
same license. If you leave the soundtrack as it is you will be breaking
the law. Even for a small run, you need express permission to use a published
works, even if it’s in the background. And let’s be clear.
Gaining clearance to use copyrighted music on a low budget short run DVD
project is quite an undertaking. Infact, that’s something of an
understatement. Running into a minefield blindfolded would perhaps be
a more accurate description! There are so many pitfalls and grey areas
that it’s difficult to see why anyone would wish to even attempt
such a thing in the first place.
Some people don’t get permission, of course. They just go ahead
and use it anyway without asking. Chances are no one will see or hear
their work, so they figure ‘why not?’. Well, that’s
fine if you’re foolhardy enough to risk a massive fine or in extreme
cases imprisonment. But if you’re serious about making a long and
fruitful career out of audio/visual production you will need to address
these issues head on.
So what I hope to do in this article is at least remove the blindfold,
giving you a fighting chance in that minefield. Or perhaps even offer
some of the options that are available that you may or may not have considered
as alternatives.
The Grim Truth
Let’s start with the facts. The copyright on all published works
is shared between a number of different institutions and individuals.
Each of these parties will wish to be informed of your intensions before
they decide whether to grant permission to use their copyrighted material.
You may think that obtaining permission will be the end of it. Not really.
Each of these individual parties will want to be paid large sums for allowing
you to use their copyrighted material for your own ends. And this is where
the fun starts. You could find a very substantial amount of your narrow
profit margin being siphoned off by unbelievably disproportionate advances
and subsequent royalty payments to publishers and record companies attempting
to claw back the large amounts of unrecuperated production costs.
Remember, their business is all based on economics. They will be completely
oblivious to any point of view based simply on artistic or intellectual
grounds. In other words, it doesn’t matter if the music looks and
sounds great on your project. You won’t be able to use it legally
unless they say “yes”. They own the copyright and that’s
that.
A Glimmer Of Hope
I don’t wish to make it sound all doom and gloom.
What with the enormous amount of turbulence in the music market lately,
institutions have had to wake up to the fact that they may have to act
quickly to make some radical changes to encourage more income from a variety
of sources in matters related to the usage and distribution of published
works. In other words, they are trying to make it easier to gain access
to their vast back catalogues for sync usage on various projects from
major films to short run audio/visual projects like the one we have in
mind here.
The Mighty Boosh audiobook. Published music was
replaced in post production
Take into account the new range of ‘blanket licenses’ issued
by the UK’s royalty collection agency, MCPS. (more on that later).
But it’s tiny steps not giant leaps. There is still lots and lots
of bureaucracy involved, especially on behalf of the record labels.
Having said that, if you’re still determined to use copyrighted
material by artists like Dr. Dre on your DVD project, let’s take
a look at how you go about it.
First Contact
First you’ll need a copy of the track, so dig out your copy of
Dr. Dre’s ‘2001’ album. Look at the printed information
on the recording. Somewhere in very, very small type there will be the
name of the publisher attached to the familiar ‘c in a circle’.
This is who you need to contact to get permission to use the composition
itself (the synchronization rights). The lyrics, the instrumentation,
the musical score. Sure, the songwriter(s) owns the rights to the song,
but generally they grant those rights to a “music publisher"
to administer them, and that’s who you need to contact.
OK, so we have found the name of the publisher. Right next to that there
will be a letter ‘p’ in a circle followed another company
name. This refers to the physical sound recording of the composition.
That copyright (the master rights) is owned by the record label. In this
case Interscope. If you want to use a specific recording of a specific
song, you will need permission from the publisher of the song ‘Still
D.R.E.’ and the owner of the physical recording of that song, the
record company, Interscope.
You will also need the title of the song (Still D.R.E.) and the name
of the composer. In this case Andre Young (Dr. Dre’s somewhat less
imposing birth name).
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Armed with this information you will first need to find
contact details for the publisher. The easiest way to track down music
publishers is through the performing rights society. All songwriters and
publishers need to be a member of that society in order to collect royalties.
Unfortunately, the performing rights societies will only give out the
publisher information for the writers they represent. Therefore, if you
want to use a song written by writers from different societies, you will
need to go to each society's website to find all of the publisher information.
Dr. Dre’s ‘Still D.R.E.’. A hard
act to follow?
However, once you have tracked down the publishers contact details you
will need to approach them directly to ask for permission. For this you
will need to send a letter or email. Use the term ‘Independent Film
Request’ or ‘Low Budget Project’, something that immediately
outlines your situation and intentions. Reference the title of the song
and songwriters, then the name of your production. Tell them briefly about
the production how the song fits in, as well as the duration of the music
and a description of the accompanying visuals. They will also need to
know the territories in which your product will be available and the amount
of copies earmarked for the initial run.
As for approaching the record companies, The bigger ones use central
offices that deal with these kind of queries. But the smaller record companies
are much easier to find. Generally their websites have all the contact
details you will need. Once you get these details, approach them in a
similar way to the publishers.
Licensed To Ill
With that thought in mind, Royalty collection companies such as ASCAP
(USA) have recently introduced ‘blanket’ licensing schemes
that allow copyrighted music to be transmitted unconditionally in certain
circumstances. Although these kind of high end licence deals are way beyond
the likes of you and me, a similar approach is beginning to immerge to
help smaller businesses, too.
Take for instance the AVP (Audio Visual Product) license offered by
MCPS in the UK. This is targeted at small budget short run video/DVD productions
where music is used, but is not the primary theme of the product. A class
that they term ‘non-music’. (A fitness video, a sports event
or a drama is OK. A concert or music chart show is not OK.). Our ‘fashion
show’ project should fall into the category ‘non-music’,
because music is not the primary theme of the presentation. It’s
a fashion show using music as enhancement and not as the main theme. So
in this case, an AVP license may be suitable.
The license removes the need for separate sync payments on each individual
piece of music, favouring a ‘blanket’ license covering the
whole project. But take into account that this license refers to the copyright
of the composition and NOT to the sound recording itself. (As we’ve
already determined, the physical copyright is owned by the record label).
Take into account also that under the terms of the license agreement and
for granting usage of their part of the copyright, MCPS will still want
to skim off a whopping 8.5% of the highest published dealer price. So
you kind of inherit a cash-hungry business partner as well as a license
and that’s gonna eat into your profits in a big way. As a footnote,
other royalty collection companies may have their own similar blanket
license agreements. The AVP license is merely an example.
The Waiting Game
So you’ve sent out your letter or email to the publishers and the
record company requesting permission to use their copyrighted material
in your project. Getting a response to your initial query is going to
take time. Especially in the case of the record company. Permission for
small time usage is pretty low on their list of priorities and this is
often reflected in their response. It may take ages and ages for them
to say “no”. Or simply come up with some ludicrous figure
of tens of thousands of bucks that you couldn’t possibly even consider.
On the upside, the chances of the publishers granting permission is marginally
higher. This is after all their reason for existing. To license and promote
the work of the artists that they represent. And in the case of the AVP
license mentioned above, you are able to apply for permission relatively
painlessly using an online application form.
What Happens next?
You will certainly need to follow up your query. But leave it for at
least 14 days before you do. Beyond this point I’m afraid it’s
in the lap of the Gods. You have followed the procedure that begins the
process of clearing rights to use copyrighted music on a small-run DVD
project. The outcome is entirely dependent on all parties agreeing to
grant permission. You’ve got a reasonable chance of gaining rights
from a publisher to use a composition. But precious little chance of being
granted rights from the record company to use that specific recording.
And no chance at all of being able to carry out all this administration
before your deadline. If I were you I’d be investigating some alternatives.
And that’s just what we’ll be doing next. Looking at all the
options available to you when substituting copyrighted music with licensed
music on a low budget short-run audio/visual project. All coming up in
the next part of Cue The Music.
To summarize
To use copyrighted music on a low budget short-run DVD project you will
need to apply for permission from two sources. The music’s publisher
and the copyright owner of the physical recording of the composition (normally
the record company).
Many royalty collection agencies now offer blanket licenses that provide
easier access to synchronization rights. The license cost may be negligable,
but the royalty demands will narrow your profit margin. Rights to use
the physical recording will be the hardest to obtain and may be accompanied
by a request for a large advance plus subsequent royalties.
Resources:
ASCAP: The American
Society Of Composers, Authors and Publishers
MCPS:
The UK’s mechanical Rights society
Comprehensive international list of royalty
collection agencies
More in this series:
You may proceed to Part Two of
this series.
Or even to Part Three.
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