In Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to email@example.com. To contact James Napper directly, email firstname.lastname@example.org or visit www.napperlaw.com.
Q: I am making an independent film and I would really like to use a certain well-known song that I believe ties into the plot very well. What would be the most cost-effective and legally sensible way to do this?
A: The simple answer is licensing. For those that are not familiar with licensing, a license is a legal mechanism for an intellectual property owner to grant authority for a specific use of their intellectual property. The license only represents a right for a specific use of the intellectual property and does not involve any transfer of ownership.
Something else to be aware of in this type of situation is that there exist two separate and distinct copyrights within a recorded song. One copyright exists for the underlying musical composition, or the music and lyrics of the song. This copyright is usually owned by a music publishing company and/or the songwriter. The other copyright exists for the recordation of the song, which is typically owned by the recording company.
Given that you would like to use a particular song for your film, that leaves you with two options. You can secure the appropriate licenses for a particular preexisting recording of the song. Or, you can hire another band to record a version of the song to be used within your film and secure the necessary licenses under this option. Now, it is appropriate to look into what are the requisite licenses under these options.
The first essential license is a synchronization license, or sync license. The sync license grants the licensee the right to bundle the music together in timed relation with visual images or motion pictures to create an audiovisual work. This license must be acquired from the copyright owner in the musical work (usually a music publisher) and is typically licensed on a flat fee basis. The sync license is required for the use of any song that is not a new composition or in the public domain.
The next indispensable license is known as the videogram license. This license is also negotiated with the music publisher, and is used to allow the producer to make and sell videotape and DVD copies of the film containing the musical composition. In practice, this license is often merged into the sync license agreement in a separate clause for the videogram license.
Also required is a performance license. This license allows the producer to show the film in all the other available mediums while satisfying public performance protections under copyright law. In the U.S. you do not need a performance license to show your movie in theaters, and most television stations will have a blanket license with music publishers for such performances, however you should obtain this type of license for viewings in foreign countries that might have dissimilar public performance protections, as well as those times when the film may be shown at public venues without any blanket license.
Lastly, should you desire to use a particular preexisting recording of the song you will need to obtain a master use license from the record company that owns that version of the desired song. Simply put, this license allows you to use the master recording of your desired song in your film.
When deciding whether to use a particular preexisting version or a newly recorded version of the desired song, the producer must weigh the costs associated with the process of recording the new version against the costs associated with obtaining a master use license for the preexisting recording of the song. Additionally, there are concerns with royalty rates should the song be included on a soundtrack in the future that must also be considered. No matter what the ultimate decision is, procuring the necessary licenses is the key. When these issues arise, a producer should consult an experienced entertainment attorney or associated licensing professional.
About James Napper, III
A Louisiana-based attorney who specializes in intellectual property and entertainment law, James Napper, III, J.D., LL.M. is a graduate of the The George Washington University Law School in Washington, D.C., where he studied intellectual property law. He is a recipient of the Stephen T. Victory Memorial Award for “Who Dat: The NFL, New Orleans, and the Implications of LSU v. Smack Apparel,” and the author of “Life as Art: How Technology and the Infusion of Music Into Daily Life Spurred the Sound Recordings Act of 1971,” which was selected for inclusion in the 2010 Entertainment, Publishing and Arts Legal Handbook.
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