Whenever a producer of a film, television show, commercial, or computer game wants to use music in a project, there are two different kinds of licenses which normally come into play: a Synchronization License and a Master Use License.
Editor’s note: This is an excerpt from the 4th edition of Music Is Your Business by Christopher Knab and Bartley F. Day, helping musicians with the business of music.
The Synchronization License
First, the producer of a film, television show, commercial, or computer game must obtain the written permission from the owner (“music publisher”) of the underlying musical composition (to be distinguished from the sound recording of that composition). This written permission is called a “Synchronization License.”
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The term “music publisher” means the owner of the copyright of the musical composition. If the songwriter has not signed a music publishing agreement for the song with a music publishing company, the songwriter will be his/her own music publisher. He/she will affiliate with ASCAP or BMI as both a songwriter and music publisher, and will therefore personally sign any Synchronization Licenses. However, if the songwriter has signed a music publishing agreement with a music publishing company, then that company will be the music publisher of the song, and will be the party to sign any Synchronization Licenses.
Just to be clear, we’re not talking about the rights to use a particular recorded version of a song, but instead, only the right to use the underlying musical composition itself. Permission to use a specific recorded version of a song is called a Master Use License and is discussed next.
The Master Use License
Often, a particular musical composition is recorded by several different recording artists. If the producer wants to use one of those recorded versions, the producer must obtain a “Master Use License” from the owner of whichever recorded version is going to be used. To use a particular band’s version, the producer must obtain a Master Use License from that band (if the band is unsigned), or, if the band is signed, then from the band’s label.
Bear in mind that even when a band is signed, the band’s recording contract may very well require the label to obtain the band’s approval before allowing the band’s music to be used.
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As mentioned above, a producer must obtain a Master Use License in order to use an already existing recorded version of a song. However, there are situations where the producer may instead want to have a new recording made. Sometimes this happens because the producer cannot obtain the necessary band and/or label approvals (for example, some recent commercials using newly recorded versions of Beatles songs). Sometimes it’s because the already existing recorded version does not fit the project stylistically for one reason or another.
In this situation, a producer who needs a new recorded version will usually commission someone to create it as a work for hire. The producer will then own that recorded version. In that scenario, the producer does not need to obtain a Master Use License (since the producer isn’t going to be using an existing master recording owned by a third party). But the producer will still need to obtain a Synchronization License from the music publisher of the underlying composition, as described above.
Common Synchronization Licensing Issues
Many issues may arise whenever a Synchronization License is being negotiated between a producer of a film, television show, commercial, or computer game, and the publisher who owns the underlying composition.
Some of the main issues are: the length of “the term” of the license (i.e., how long the producer will be allowed to use the music); the scope of the “territory” (i.e., the geographical area in which the producer can use the song in his or her production); and whether the producer will have “exclusive rights” to use the song (or instead, whether the publisher can give other producers the right to use the same song in other productions).
The Term
Theatrical Films: The term is generally for the so-called “life of the copyright.” In other words, the license will last as long as the song is protected by copyright law, which today, as a general rule of thumb, is 95 years.
Television: Sometimes for 2, 3, 5, or 7 years, or, currently much more common, for the life of copyright. (There’s been a rapid trend toward life of copyright in recent years.)
Commercials: Typically an initial term of anywhere from 13 weeks to one year, often with the producer’s right to renew for another equal term upon payment of an additional licensing fee (which might, for example, be 125% or more of the original fee).
Computer Games: The term is generally for the life of the copyright, or for a 2, 3, or 5 year term. As a practical matter, there are very few computer games that will have a life span of over a year or two, so in most instances the producer may not consider it all that important to obtain a “long term” license.
The Territory
Theatrical Films: Typically the territory is worldwide.
Television: It used to be that the territory was usually limited to certain countries. Today, most often it’s “worldwide.”
Commercials: Local, regional, national, certain countries, or worldwide, depending on what the parties negotiate.
Computer Games: Worldwide
It’s important to mention that even though a license may say that it’s a worldwide license, a producer has to be very careful here, especially if it’s a large company doing business in other countries. This is because of the fact that in many foreign countries, licenses issued directly by U.S. publishers may not be valid for those countries. Instead, a producer seeking to clear the rights for those countries may need to obtain a license from the rights organizations or governmental agencies based in each of those countries, even if the producer has already obtained a purportedly “worldwide” license from the U.S. publisher.
Exclusivity versus Non-Exclusivity
For Theatrical Films and Television Shows: Synchronization licenses are almost always non-exclusive in regards to films and television shows, meaning that the party issuing the license can issue other licenses for the same music to other producers of other film and television shows. And the song can be licensed to as many other companies as the publisher likes. If there is exclusivity, meaning that only one producer can use a particular piece of music, the producer will usually be paying dearly for the exclusivity.
For Commercials: There may be exclusivity for a limited period of time. When there is exclusivity, it’s most often “limited exclusivity;” limited either to the territory of the license and/or to particular products or industries.
For Computer Games: Usually non-exclusive, though sometimes the license agreement will prohibit the music publisher from licensing the music to be used in other computer games for however long the license agreement will be in effect.
Part two of this excerpt from “Music Is Your Business” will be published on the Dotted Music blog on 09/03.
By Bartley F. Day, Copyright 2013. All rights reserved. The new, 4th Edition of Music Is Your Business has 100 pages more info to help musicians help themselves with the business of music.