Q: There’s a song on one of my favorite albums that I’ve always thought would be perfect in a movie. I’ve been making movies for a few years now and finally have a project that the song is perfect for. Who do I need to contact to get permission?
A: Let me guess. You want to use “Oops I Did It Again” in your sequel to Titanic. I’m glad you feel passionate about the song. Now comes the hard part. You’ve got to figure out what rights you need and from whom you need them.
While the copyright owners of songs own several specific rights in their songs, there are three unique permissions you must obtain in order to use a song in your movie: (1) the right to record and distribute copies of the song (as part of your film); (2) the right to record the music in synchronization with the moving pictures in your film; and (3) the right to “publicly perform” the song as part of the public performances of your film.
Now that you know the permissions you have to obtain, the question remains: from whom to you have to get these rights? This is where the law of music can get tricky. If you want to use a preexisting song that’s already been recorded, like the song from the album you mentioned, there are actually two different aspects of the song that are relevant. First, there’s the underlying composition, which is basically the written version of the song (including the composed music and lyrics). Then there’s the master recording, which is the actual sound recording of the song as played and recorded by the band on the album you own.
While often times the same party owns the rights to the underlying composition and the master recording (i.e., the record label), this isn’t always the case. In other words, in certain instances, you may have to go to two different parties in order to obtain all the rights you need to include a specific version of a song in a movie. For example, in certain situations, a band may own its own master recordings but its label may retain the copyrights (or “publishing”) in the underlying composition. Therefore, you would need permissions from both parties in order to use the song. You’d get a “Synch” license from the owner of the composition (which should also include language relating to the public performance right) and a “Master Use” license from the owner of the master recording. Any decent form of these agreements should get you the rights you need (of course, you should have an attorney review any agreement you use to make sure what you’re using is beneficial to you).
It should be noted that if you love the song but aren’t tied to the specific version on your album, you can simply get a Synch license from the owner of the composition and have some other band or performer re-record a new version the song for your film. This removes your need to deal with the owner of the master and could be your only option if, for example, the owner requires an exorbitant fee for your right to use it in your movie.
I wouldn’t be a lawyer if I didn’t leave you with two caveats: first, this blog only deals with your use of a song in your movie, not in the soundtrack of the movie. Using it in a soundtrack requires additional rights and, almost definitely, additional fees. Second, I have made passing mention of obtaining public performance rights from the owner of the underlying composition. It should be noted that this issue in general is complex due to the fact that, with respect to the vast majority of songs, the public performance right must be licensed from a performance rights organization, usually ASCAP or BMI. It’s even more complex when you’re talking about music in motion pictures due to some fairly sordid legal history pertaining to the performance of music in movie theatres. For the sake of our collective sanity, I will not go any deeper into this issue in this blog.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.