Major Deal Points Music Licensing Agreement

THE PARTIES

• Production Company.The work of the production company is doubled and it may need to negotiate and execute two separate license agreements from two or more parties. Make sure you are asking the correct party for the correct license.

• Music Publisher. You will always need to secure the license to use the musical composition from the publisher. In one contract from the publisher, obtain the following licenses: synchronization, performance, and videogram licenses.

Record Company. If you need to use a particular recording of a musical composition, you will need to negotiate with the record company for the following licenses: master use and international performance licenses.

GRANT OF LICENSE(S)

• Unless you have a pressing reason why your film should be the only one entitled to use the song, all you need is a nonexclusive license.

• The synchronization license, obtained from the publisher, is the right to use the composition in synchronization or in time-relation with the Motion Picture, in all its forms.

• The performance license, obtained from the publisher, is the right to publicly perform the composition in relation to the Motion Picture, in all its forms.

• The master use license, obtained from the record company, is the right to use a particular recording of the composition in relation to the Motion Picture, in all its forms.

• The videogram license, obtained from the publisher, is the right to reproduce in video form and sell the composition as matched to Motion Picture, in all its forms.

TERM

For feature films you should almost always have a perpetual licensing term.

TERRITORY

• For feature films, try to define the territory as "the world" or "the universe."

• For television commercials, you may be able to reduce the cost of the license fee by restricting the territory to domestic television.

MEDIA

• When negotiating the language of the license try to define your Motion Picture as broadly as possible, for instance: "The Motion Picture, in all its forms, in every media now known or hereafter invented."

• Even for feature films, make sure your licenses cover all television distribution media (broadcast, cable, satellite, in-flight movie, closed-circuit, videocassettes and DVD).

• Try to include the Internet distribution in your definition of television, although many licensors will want to treat this as a separate medium.

LICENSE FEE

• Be aware: music licensing can be very expensive. It is not unusual for popular recorded songs to be licensed for tens of thousands of dollars.

• Try to negotiate a flat fee and avoid having to pay any royalties or other contingent compensation.

• If the Screen Actors Guild (SAG), American Federation of Musicians (AFM), or the American Federation of Television and Radio Artists (AFTRA) has jurisdiction over the movie, reuse payments may have to be made to the musicians and vocalists on the recording.

MODIFICATIONS TO THE COMPOSITION/RECORDING

• If you intend to modify or change the composition or recording you must have the rights holder's permission to do so.

• At the very least, you will need the rights to edit the recording or the composition for time—shortening or lengthening it to fit your shots.

REPRESENTATIONS AND WARRANTIES

• The licensor must represent and warrant that it is the sole holder of the rights being licensed, and/or have the power to enter into this agreement on behalf of the sole rights owner's.

• The licensor must indemnify the producer for any breach of the representations and warranties.

CREDIT

• As is true for all credit provisions, the production company should insert a clause in the contract which says that "inadvertent failure to accord the contracting party credit shall not be actionable."This clause should also require the injured party to waive the right to injunctive relief, leaving an obligation on the production company's part to correct the problem on all future prints as the only remedy for the production company's credit mistakes.The clause should further state that a mistake of this nature is not a breach of the Agreement.

• The clause should make clear that the production company has complete discretion over the look of the credits.

Step by Step: Prerecorded Music Licensing

1. Find out who the rights holders are.

• The CD label will probably list both the record company and the publishing company.

• For more detailed contact information on the music publisher, use one of the performance rights societies' databases. ASCAP's "ACE" title search feature is very helpful for locating music publishers. See http://www.ascap.com/ace/.

2. Once you've located the correct music publisher and the record company, review their websites and look for information on their licensing department.Very often your preliminary questions about who to contact, what kinds of rights they can grant, how long the licensing process takes, etc., are answered on the website.

3. Contact the rights holders. Prior to writing a letter, it is often preferable to put in a preliminary phone call to the licensing department to explain your needs.

• Be prepared to tell them how the song will be used. For instance, they might want to know what scene the music will accompany and the duration of the song in the movie.

• If you license any other songs for your movie, you may want to let the rights holder know. It shows that you have been trusted by other licensors.

• Negotiate the deal points discussed previously.

• Offer to provide a licensing agreement in letter form, drawn up for their signature. However, be prepared for them to send you their "standard contract."

4. Send the person you spoke to a letter restating the deal terms that you've discussed. If the licensing manager has agreed to your providing the agreement, your letter can be drafted as a contract, with the signature block for all parties at the bottom.

5. Securing music licenses takes a lot of work. If you have the budget, consider working with an attorney who handles music licensing or a "music permissions and licensing service." For a fee, these services will investigate the availability of your chosen music and negotiate the appropriate licenses.

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Responses

  • Myrtle Mugwort
    What are some of the main deal points in a music publisher's agreement?
    6 years ago

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