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Got Consent?

Got Consent? Legal Issues in Film, Pt. 5: The Music


This article speaks about motion pictures in metaphor: making a motion picture is akin to constructing a house. The story lays the foundation, the script forms the blueprint, the players are builders, and the production is the build site. Music is paint, weaving tapestries of sound into the screen, framing each scene in anticipation of what is to come. As paint is the final touch upon a newly made house, music also attaches at post-production.

Commissioning New Works

Performer Deals

Performer deals typically involve a well-known artist either performing or writing music. For example, the James Bond series often features a well-known artist writing or performing the theme song, which plays during the opening credits; Paul and Linda McCartney wrote Live and Let Die, which Paul’s band, Wings, performed; Sheena Easton performed For Your Eyes Only; Duran Duran co-wrote and performed A View To a Kill; A-Ha co-wrote and performed The Living Daylights; Bono and The Edge of U2 wrote and Tina Turner performed GoldenEye; Sheryl Crow co-wrote and performed Tomorrow Never Dies; Garbage performed The World Is Not Enough; Madonna co-wrote and performed Die Another Day; Adele co-wrote and performed Skyfall; and the list goes on. Doing music for Bond is a right of passage.

A record label must consent for its artist to perform for a film. Record labels sign artists exclusively, but may waive exclusivity for a percentage of royalties. Artists may invoke an exclusion to exclude the record company from weighing in on a project, but not all exclusions grant the scope of rights required for films[1]. If consent is granted, the record label will want some role to play in the soundtrack album deal. If the artist is a songwriter, he or she may be under an exclusive agreement with a publisher. The publisher must consent for its songwriter to write for a film. If consent is granted, the publisher will want to own publishing rights, income, or both in any songs written or composed for the film.

Composer Deals

The production company typically negotiates composer deals as a work made for hire, which work is specially ordered or commissioned for use as part of a motion picture. The company is the legal author and owner in the copyright, owns all results and proceeds of the composer’s services, administers all rights in the work, and uses the work on a royalty-free basis in the film, and any prequels, sequels, spinoffs, or remakes. In the case of independent films with modest budgets, a composer may grant the production company a license in the music, while retaining ownership in the work and its sound recording to bolster any up front fees with royalty income generated from publishing on the back end.

Fantasia

Walt Disney’s Fantasia is one of the most successful animated feature films of the last century. Its soundtrack was so innovative that it spawned the term “Fantasound,” a precursor to surround sound. Walt Disney Productions hired conductor Leopold Stokowski to arrange seven classical masterpieces and conduct the Philadelphia Orchestra[2]. Walt Disney Productions separately hired the Philadelphia Orchestra to perform six pre-existing works by Bach, Tchaikovsky, Stravinsky, Beethoven, Ponchielli, and Mussorgsky. The Hollywood Orchestra had already recorded Dukas’ The Sorcerer’s Apprentice some time prior[3]. Of the seven works, only Stravinsky’s Rite of Spring still enjoyed copyright protection in non-U.S. countries[4]. Walt Disney Productions thus licensed the rights to the composition from Stravinsky’s publisher to distribute the film in countries where it was still protected. In 1991, Walt Disney re-released Fantasia on laser disc and videocassette, which earned a windfall for the film studio followed by several lawsuits by the orchestra, conductor’s estate, and Stravinsky’s publisher.

In the Fantasia cases, courts generally ruled in favor of Walt Disney Productions. The first case brought by the orchestra alleged a joint authorship in the film[5]. If the orchestra was a joint author with the film studio, they wanted a share of profits from the 1991 release. The next case brought by the executor of the conductor’s estate alleged the video release was outside the scope of the original agreement. If interpreted narrowly, the video release would require a new agreement and corresponding fee. Finally, the music publisher alleged that the video release fell outside the scope of rights granted to the film studio. If interpreted narrowly, the film studio would owe additional licensing fees. The Pennsylvania court ruled that the orchestra’s work was made for hire; they were not joint authors and thus not entitled to a share of profits. The New York courts ruled that language was sufficiently broad in both agreements with the composer and the publisher to encompass the video release, no new agreements needed to be negotiated, and no fees paid for the new use on videocassette.

Not all courts agree on the broad interpretation shown by the Fantasia courts. A California court interpreted granting language narrowly where the parties did not expressly agree to release the musical work on videocassette[6]. Thus, absent language to the contrary, a license does not grant rights to a filmmaker for new uses. New uses typically result from technological advances in content delivery systems. Videocassettes, laser discs, and other new or developing methods of content delivery systems create opportunities for rights holders to negotiate new agreements and fees. Most licenses now contain special language that prepares for these inevitable advances. Because courts are divided whether to interpret language narrowly or broadly, the best protection is gained at the outset of the agreement.

Licensing Pre-Existing Works

There is no fair use of music in film[7]; all pre-existing works must be cleared. Some companies specialize in clearing music for film and will negotiate licenses with copyright holders, which include songwriters, publishers, and record labels. Placement of music in film is great exposure for an artist and a money maker for rights holders. Profits derive from exclusive rights acquired through federal copyright registration which grants rights holders temporary monopolies on use of registered works. It was not until 1972 that sound recordings received federal copyright protection; before that the law only protected musical works.

Musical works are licensed separately from sound recordings. Sound recordings are the recorded performance of a song. A song usually consists of lyrics and music. Thus, musical works include sheet music and lyrics, and sound recordings include the recorded performance. Thus, using music and lyrics only requires only a license in the copyright to the musical work, but using a recorded performance requires not only a license in the musical work, but also a license in the sound recording, which is embodied in the masters. For example, a karaoke scene in Beyond the Lights required a license in the musical work to reproduce the music and lyrics, but a replay of the album version of a song in the soundtrack required a license in the masters as well as the musical work to reproduce the recorded performance in the film.

Musical Works

At a very basic level authorship and ownership begins in the songwriter. Sometimes the songwriter is also the publisher, as may be the case with independent artists. More often, the publisher is a business entity, which may share copyright ownership with the writer, places the title in various forms of media, and administers both the publishers and the writer’s shares in the copyright. Thus, a basic license to access exclusive rights of a musical work will specify what rights are granted, on what terms, and for how much compensation. Film requires a special type of license called a synchronization license, which describes the function of music in film: audio aspects (music) synchronize with visual aspects (film) to project a unified image. All licenses for musical works in film require a synchronization license, whether or not the sound recording is used.

Licenses for musical works in film also require a license to perform the work publicly in non-U.S. theaters. Performance rights organizations like the American Society of Composers, Authors, & Publishers (ASCAP) stopped collecting royalties from theaters in the United States due to an antitrust ruling in 1948[8]. As a result, public performance royalties generated by films do not accrue in the United States, but serve a generous source of income in non-U.S. exhibitions. Walt Disney Productions counted on this revenue stream as a major source of income for Fantasia, but the onset of World War II prevented exhibition in Europe causing its lackluster returns in 1940.

Sound Recordings

Record labels own masters and accordingly administer master use licenses. A master use license will grant rights in the sound recording, or recorded performance of a musical work. Despite a record label, an artist may veto permission if he or she does not approve of how the music is represented. It may be aligned with a scene that contravenes his or her branding, or, it may not be viewed as a fair offer. An artist may have negotiated control mechanisms into the recording agreement to trump decisions by the record label on master use licenses. Even after a master use license is granted, certain exclusions apply. Common exclusions restrict the use of an artist’s name to screen credit only; no other uses of the artist’s name, likeness, or other personal characteristics or traits may be used to commercially exploit the film.

Making a Soundtrack Album

A great soundtrack makes a good movie, iconic. Music animates a film in the mind of a listener long after the crawl. Composure of a soundtrack album varies. The soundtrack album may, but more often does not, include music from the score. Sometimes, films release one score album and another of album of popular music. An example is the Twilight Saga, for which Carter Burwell composed the score, but also features a various artists album for each segment. Harry Potter released a series of score albums with multiple composers. Still other films artistically pair music with dialogue such as Pulp Fiction and Natural Born Killers. There are even films that release dialogue only – Fear and Loathing in Las Vegas is one.

Soundtrack Album Deals

Production companies select a record label to release the soundtrack album. The selection process factors in any featured artists and production costs. A record label with a featured artist may negotiate deals for the soundtrack, singles, or theme song. A soundtrack album is also expensive. In addition to recording and artist performance fees, costs include converting a film recording to a master[9], and re-use fees. Once selected, the production company will license the rights it has acquired in any pre-existing works or commissioned works to the record label, who makes and distributes the album.

Rights ownership in the soundtrack album is split between the record label and production company. The label generally owns the masters and licenses them to the production company. The production company owns all film and non-record rights, while the record label retains ownership in phonograph records. In this way, the production company and record label each retain ownership in rights suited to their respective businesses. Publishing is a critical deal point. A production company will prefer to administer synchronization licenses to control how the original music is used in any competing productions.

The Music Supervisor

A good music supervisor is well paid. Skills required of a music supervisor include some or all of the following: clearance, negotiating a soundtrack album deal, negotiating performer agreements, assisting in the preparation of cue sheets, and selecting a composer. A music supervisor typically works under a producer’s supervision to assist in the negotiation and documentation of all music licenses and agreements.

Cue Sheets

Cue sheets log musical works in a motion picture. The log includes the film title, film title aka, music length, production company, song title, composer, publisher, performing rights organization, timing, and usage. If there is more than one composer, or if the writer and publisher split royalties on other than a 50/50 basis, the split must be recorded. Sometimes writers prepare their own cue sheets for comparison with the music supervisor. Once completed, the cue sheet is submitted to the publisher or performing rights organization. Royalties are calculated from the cue sheet. It is critical that information represented be detailed and accurate for the rights holder to get paid.

[1] Donald S. Passman, All You Need to Know About the Music Business 401 (7th ed. 2009).

[2] Muller v. Walt Disney Productions, 871 F. Supp. 678 (S.D.N.Y. 1994).

[3] Philadelphia Orchestra Ass’n v. Walt Disney Co., 821 F. Supp. 341 (E.D. Pa. 1993).

[4] Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998).

[5] Id.

[6] Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988), as amended, (July 22, 1988).

[7] Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004).

[8] Alden–Rochelle, Inc. v. ASCAP, 80 F.Supp. 888, 894–96 (S.D.N.Y. 1948).

[9] Donald S. Passman, All You Need to Know About the Music Business 405 (7th ed. 2009).

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