By Michael A. Weiss
May 22, 2005 - 11:45 PM PDT
Your cast worked out great (okay, your lead was a royal pain, but whose isn't?), your locations rocked (don't worry; your folks will never know that you used their vacation home for that scene), your crew was right on (thankfully everyone can now do their laundry) and the production manager held it down (and you almost kept him down) - it's now time for post production and the consideration of music; the spice and essential mood-setting element for your film. What to do? Well, you can call up the managers for Coldplay, Eminem, Bruce Springsteen or Jay-Z and say, "Hey, I just made this really cool film, and I think your artist's song would fit in perfectly. How 'bout we get together to discuss the possibilities?"
If you were afraid to (and had to) ask your folks about permission for that scene, then you don't have the stones (or the money) to consider Eminem, Jay-Z, etc. So, you turn to friends of yours who play in a local band and say, "Hey, this film that I haven't shut up about for the past year, well, it could be a great vehicle for some of your music. How about letting me use some of your original songs?" If you planned ahead and knew the very specific nuances involved with securing music for your film, you may have even asked these same friends to write, compose and play songs specifically for your film.
Regardless of the path you choose, it is essential that you understand the business and legal specifics of how music is integrated with film. Always keep in mind that musicians are creative people just like yourself, and they are extremely sensitive about getting exploited by club owners, record companies, promoters, agents, lawyers and, yes, even filmmakers. Your film could bring great exposure to a song, and a song from your film constantly played on the radio could raise awareness about you and your film. This seemingly is a win-win situation, but it is fraught with a variety of expensive and acrimonious circumstances - all which have made this particular area of entertainment law (i.e., the use of music in film) arguably the most litigated sub-specialty. Accordingly, it is imperative that you know exactly what you are doing, that you have all appropriate paperwork executed, that you treat musicians and their work with the same respect you expect them to show your work and that you consult with a qualified attorney to discuss your intentions and aspirations (even after reading this article!). I will go through the general scenarios and suggested strategies below, but the following real lawsuit should confirm what I have represented thus far, and I think it paints a realistic picture of the fragile, unique but necessary relationship between film, music, film studios and music artists.
In August, 1999, Don Henley (solo star and formerly of the 1970s superstar rock group The Eagles) sued Paramount Pictures in a dispute over a song ("Taking You Home") he claimed he co-wrote for the then-upcoming movie soundtrack for Double Jeopardy starring Ashley Judd and Tommy Lee Jones (released nationwide on September 24, 1999). Mr. Henley claimed that Paramount backed out of an agreement to make the ballad a prominent part of the marketing push for the film, as Paramount had decided against using the ballad in the film's advertising because the studio's marketing department decided to position the film as an action/adventure film rather than as a "relationship" movie.
The official court documents stated that in April, 1999, Paramount allegedly offered Mr. Henley $1 million to record a song (and another $25,000 in recording costs) entitled "Soul Reason," but Mr. Henley rejected the song (I imagine for unrelated creative reasons) and Mr. Henley offered to write a song especially for the movie. Paramount then allegedly showed Mr. Henley the film and asked him to write a song for the final scene which would continue into the final credits (a valuable placement for a song since theater-goers could be humming it as they strut to their cars). Mr. Henley came up with "Taking You Home," which was accepted by the film's producers - this all according to court papers filed by Mr. Henley. In early August, Paramount, again according to the court papers filed by Mr. Henley, tried to back out of the deal because of their aforementioned refocused marketing plan.
In Mr. Henley's lawsuit, he claimed that a major reason he agreed to provide the song was because of the enormous amount of positive exposure it would receive in connection with the film's promotion. That exposure, in turn, would, according to Mr. Henley, increase both the sales of his then upcoming solo album and attendance at his then planned concerts. In the lawsuit, Mr. Henley was seeking the $1,025,000 he claimed he was owed under his agreement with Paramount plus $125,000 toward the production of a music video for the song, which wound up being the first single from that solo album. Mr. Henley also sued for unspecified damages for the alleged loss of revenue due to the song's reduced (or non-) exposure, i.e., lower CD sales, less attendance at concerts, etc. As you may or may not be aware, "Taking You Home" was a hit for Mr. Henley, and I believe he and Paramount settled the lawsuit, but those settlement terms were not disclosed. While the influence of Paramount Pictures and Mr. Henley is greater than that of most independent filmmakers, the exposure of independent films and the songs contained in them and on their soundtracks can result in the same dire and expensive consequences due to the proliferation of DVD and online distribution. Therefore, please do not believe that you are impervious to such types of lawsuits and aggravation simply because you aren't a world-renowned filmmaker, film studio or musician. For that reason, set forth below is a brief and simplistic overview of some key issues to understand in planning the acquisition or creation of music for your film.
First, however, some archaic basics about the record business which still hold true and which are to be relied upon as the foundation of properly obtaining "exploitable" or permissible rights and thus the payment for use of music in film. "Mechanical Royalties" - a phrase developed from basic copyright law - refers to payments for devices "serving to mechanically reproduce sound." Even though such devices haven't been used to "reproduce" sound since the 1940s, monies paid (by a record company) to copyright owners (owners of the publishing rights) via a "mechanical license" for the manufacture and distribution of records are still referred to as "mechanical royalties" - presently approximately eight cents per song paid by the manufacturer to the copyright holder.
"Performance Royalties" - each user of copyrighted music needs the permission of the copyright holder to play the music on the radio, in bars, restaurants, nightclubs, amusement parks, Internet, etc., and the royalty paid to the copyright holder is referred to as the "Performance Royalty," and is obtained via a "blanket license" from "performing arts societies" such as ASCAP and BMI. It is impossible for every radio station, for example, to get a separate "performing license" for every song they play, so ASCAP and BMI manage the royalties via the "blanket license" system. This aspect of the record business gets very complicated and has numerous exceptions, but, in short, a song is registered with either ASCAPor BMI, and these organizations charge a fee to a user such as a radio station or nightclub based upon the size of the venue, frequency of use, etc. In exchange, the establishment gets the "blanket license" and the right to play all of the songs in ASCAP's or BMI's library. Music copyright holders also yield royalties from printed music such as sheet music, which refers to the song books you may have been exposed to as a kid (when your parents made you learn to play the piano) and could also include the monies payable to the copyright owner for the right to publish lyrics and or the music in linear notes of a CD, VHS or DVD.
Most important to filmmakers, however, is the "Synchronization License," which permits a user to use music in "timed synchronization" with visual images such as use of a song in a motion picture or television program or
commercial where the song is synchronized with the action on the screen. This also crosses over into home video devices such as VHS and DVD and, in some cases, to Internet usage when the music is synchronized with a visual image.
Mr. Henley's lawsuit.What it all means to you.
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Michael A. Weiss
General Counsel for Alternative Cinema Magazine, Michael A. Weiss has practiced entertainment law for over ten years. His columns are strictly for informative purposes and should not be relied upon for legal advice. For that, you can contact him via email: "mawesq at verizon dot net."
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