By Michael A. Weiss
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.
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