Royalty Free Music and Licensing: The Misnomer
July 16, 2008
Most things are really not free even if the name says free. There’s always a catch in the fine print or you have to pay something to get the so called “free item.” That free toy you got out of the box of cereal when you were a kid was not free. Even thought the big letters on the box said “Free,” you had to buy the cereal before you could get the toy.
In the case of Royalty Free Music, it’s not free either. The term “Royalty Free” is a misnomer as you have to pay something to get to use the music. It doesn’t really matter if you pay the fee upfront as a buyout or on the back end as a licensing fee; you are still paying the copyright owners of the use of the song.
If you Google “Royalty Free Music,” the first hit you’ll get is royaltyfreemusic.com/. Go figure, Google Royalty Free Music and your first hit is royaltyfreemusic.com. When their home page comes up, the first thing you see $35.95 for individual tracks, $99.95 for compact disks and a $299.95 subscription.
Aside from the free issue, there are other things that you need to be aware of when using library music. It’s extremely important that you read the license agreement, terms and conditions or any disclaimer they have posted on their site.
If your distribution plan includes a major theatrical release, you should be careful. The Music Bakery’s fine print states,
“Use in major theatrical releases or in mass-market retail distribution (3000+ units) is licensed separately by contacting Kelly Atkinson at 800-229-0313 or kelly@musicbakery.com”
You would not want to use this music if you have a theatrical release planned or if you think your film has a chance of selling over 3,000 units. You’ll have to negotiate some other deal. This is not true for all library music companies. You must read the fine print for each and then determine if it’s right for your film.
You should also know that you will be issued a license for the music you use. This license that you are granted covers a wide range of rights and is issued directly from the company that provides the music to you. Some companies are an extension of a larger publishing company and there may be more restrictions.
A requirement that all royalty free music libraries demand is that you properly create and file a cue sheet with performance rights organizations such as ASCAP and BMI. Your license agreement will cover which organization you will be responsible to file with. It may be both.
There are several advantages with going the royalty fee music route. The first is one-stop shopping. You can clear both the sync and master rights with the same company. Going this route is fairly quick. Many licenses can be granted over the Internet and you do not have to deal with a licensing rep. Just click and pay. Getting music that fits your music budget is another reason filmmakers choose royalty free music.
There is always a downside to anything that seems to be a good thing. Royalty free music will limit you in your creative expression within your film. There’s no doubt that using authentic music by artists that create music with a passion is more conducive to setting the mood of a scene. If your music budget is tight, you can search for independent, local artists/bands for good music.
All in all, royalty free music will cost you. Nothing is free here. If you have zero dollars in your budget, don’t make the mistake and think royalty free music is the answer. It can work in your favor to some degree and limit you in others. Do your homework and read the fine print. Contact the company and ask questions. I prefer e-mailing them so you can have a written record of anything they tell you in the event you find yourself in a licensing bind.
WHEN WE HAVE PERMISSION FROM THE ARTIST
I have a situation. We record our service each Sunday and then turn the minister’s talk into a podcast. We often have an artist perform two songs. The artist performs a song she wrote and it’s on a CD she has recorded. She is a member of ASCAP or BMI. She gives us permission to use her performance in our podcast, on our web site and on our duplicated CDs of the talk.
As a member of one of the music rights society, does she have the legal right to give us this permission? (I’m worried that something in her contract with ASCAP or BMI might conflict with her normal right to do this.)
Also, in some cases, I see from the CD label that another person is listed along with this artist as co-author. In that case I’m pretty sure it would not be 100% correct for me to use the piece even with her permission. (Being a church, we want to follow the rules scrupulously. Understanding the rules is the toughest part, I think.)
MORE GENERAL QUESTIONS
Every time I read about all these rights I find that truly understanding the explanation depends on my interpretation certain words and exactly what they mean in this context. For example, does “broadcast” extend to streaming media on the Internet? If yes, does it still apply for downloaded media? (Many people think media is streaming when it is actually downloading.)
My understanding of the “performance rights” for which the various societies collect royalties is for the copyright holder of the words and music, and does not extend to any specific performance.
What the heck is “mechanical” licensing? What is it that the Harry Fox Agency (HFA) does? Do artists “sign up” with HFA? (They seem to indicate that they speak for all the musicians in the world.)
I guess the upshot of this is that, so far, all my projects have zero or near-zero budget. I use several production library where we’ve pre-paid all the royalties we are ever going to, with no exceptions that I know of.
Thanks,
Rob:-]
My girlfriend’s grandma passed away last December (AT 104-years old) and in her trust, she split everything between her 4-grand-daughters. One of the items in the trust was music royalties for songwriter Joe Goodwin. The most famous song is “When You’re Smiling, The Whole World Smiles With You”. This was a total surprise, and she had no idea…I`t is a long story how she acquired them (no relation and she lived a very modest life). Anyway, my girlfriend gets 25% and is now a successor member of ASCAP. She had no Idea that between the ASCAP royalties and the EMI (international) payments, she will receive about 25,000 - 40,000 each year for the next 20-years (we think…and that is just her part for that one song).
The question she asked me to ask you is this: We have gotten different people give us different answers as to how many years are left before the music becomes public. Is there a way to find this out? We even paid someone quite a bit to do a valuation for estate tax purposes, and they are the ones that said most likely…to the best of their knowledge 20-years.
Thank you!!
It’s always a nice surprise to get something like this. There’s a lot that goes into determining when a composition will enter the Public Domain. There are a lot of individuals involve aside from your girlfriend and her siblings.
Just to clarify your girlfriends 25% you need to consider the royalty splits on the overall composition. This would have to be researched, however, based on what is know, there are three songwriters of this composition. Their split is most likely 33.3%. So Joe’s split which became your girlfriends grandmother share (I’m assuming) would be 33.3%. Divided by four leaves 8.325% of the overall revenue generated from the licensing of this song. I’m not sure if the $25K to $40K is calculated off the 8.325% royalty split.
Please contact me directly to discuss this in more detail. You can e-mail me at dominique@spincyclefilms.com.