I’m Not The Music Licensing Police!

I am a member of many film and music groups and forums. If frequent several Yahoo groups such as Music Supervision for Film & TV, The Budgeting Group, Doculink and Film Finance & Investing. Other forums that I’m a member of are the Composer’s Forum, filmmaking.net, and ReelGrok where I am a Tutor/Consultant.

I reply to a lot of post about music clearance and situations that pertain to music in films. I find it very interesting how I rarely get a reply or have other members join in the discussion. It appears to me that once I chime in, no one wants to discuss the subject as I might call them on their music use.

It’s the same thing that happens when a state trooper pulls onto the interstate and everyone slows down and follows all of the driving laws. Some drivers exit because their inspection sticker has expired or they have no insurance. They want to avoid any chance for the officer to pull them over with probable cause.

I know there’s a lot of probable cause going on in the film industry. I’m not going to pull anyone over, if you will, if I find out that they have not cleared the music in their film. I just point out the fact that they are supposed to clear and license the music and offer a few words to help them understand what needs to be done. I inform them that music is property owned by someone and it’s not free to use without permission.

I’ve taken it one step further and offer consulting services for those who just need an hour or so of my time to consult them in the right direction. I can also be hired as the music supervisor to do the music clearance and licensing for the project as well as all of the administrative task that most filmmakers are not aware of. This is a very important service and can be invaluable. Getting the job done right from the start will alleviate a lot of headaches and frustration down the road.

When I hear people talk about how they don’t think they have to pay to use music, I have to turn the table on them. I ask how they would feel if they found out that someone use footage from their film and didn’t bother to clear it with them first. They don’t like it and they say it’s different when it comes to music. People think music is free because you can record it off the radio or the Internet. It’s readily available. What they don’t understand is these radio stations have to pay ASCAP, BMI and SESAC an annual license fee to legally broadcast the music you hear. This is the same for any business that play music to the public. Internet use has to be cleared also.

I have a lot of publishing and record label contacts that I work with everyday. I don’t need to tell them that their music is being used with out their permission. They already know. They have a team of attorneys that take care of this.

I want to hear from anyone about their music clearance needs. I’m not going to report anyone. I’m just going to help. I’m a music supervisor not a police.

Royalty Free Music and Licensing: The Misnomer

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.

Music Clearance – Now or Later…

The old saying, “What came first, the chicken or the egg?” can apply to music clearance as well. I’ve been told many times that my music supervisor services are not needed until post. I guess when it comes to music clearance; we can say “What should come first, the music supervisor or post?” I hope to clearly unscramble this.

In the beginning, the screenwriter writes specific songs in the script. This is not a good idea. There should be a reference to music but nothing specific. Now the director reads the script and start forming his/her musical vision without considering the level of the music budget. Filming starts and the dailies are ready to view. In order to better realize their musical vision, the director has the editor drop in some of those pricey songs.

These songs now get tagged with a term called, “temp music.” Now everyone feels warm and cozy when they watch the scenes. It’s getting harder to imagine any other song for those scenes.

Now post comes along and I get the call to clear these expensive songs with a budget that’s too small to cover one song let alone all of the songs. All the hard work that went in to editing around these wonderful and expensive songs will have to start all over when reality forces the need for replacement songs.

I now proceed with reluctance as I already know the outcome. In these situations, I always make a point to include a disclaimer in the license request forms when I submit them. I let the licensing reps know that I’ve already informed the director and producers that the music budget is not sufficient enough to cover the potential licensing fees. I have a professional reputation to uphold and I don’t want any licensing rep to think that I’m an inexperience music supervisor.

Once I get the quotes back from the publisher and record labels, I report back to the director and producers and sadly inform them that the license fee for the “big” songs have exceed the entire production budget.

Had I come on board in pre-production and was given a copy of the script and a list of the songs that had already been selected, I could have given my professional insight on the availability to obtain the rights to these songs. In the early stages of production, this gives enough time to find a replacement song that is more affordable.

Many films make it through the festival circuit with un-cleared music. It’s a sad and unfortunate reality. The festival producers really do nothing about it and the filmmakers know it. The day they get the call from a distributor who is interested in their film, is the day they panic and call a music supervisor.

Having a distributor interested in your film is an awesome accomplishment. Everyone is excited and celebrating. The party ends when the distributor asks for the deliverables and there are no signed license agreements and no cue sheet. It’s back to the drawing board with no money in the music budget and a tight deadline to meet. The only thing that I can do is proceed and do my best to negotiate with the music publishers and record labels and hope that the producers can raise enough money to cover the licensing fees and the cost to re-edit the film with replacement songs.

If you are a filmmaker in the situation that I’ve written about above, I strongly recommend that you revisit your music choices and budget. If you have songs in your film that you’ve heard on the radio or even oldies that your parents used to listen to, I would get a music supervisor involved to help you get a realistic financial picture of your impending licensing fees.

I guess it’s clear to say that the music supervisor should come before post. Unfortunately, the film community will continue to wait until post and play with big songs and a very small music budget.