Music Licensing for your Documentary

imagesIt would be fair for me to say that clearing the music for my latest documentary was one of the most daunting experiences I’ve had in filmmaking, since harassing my family and friends for donations on my Indiegogo page.  However, the truth is that the difficult part was not the process, it was learning the process.  As I look back I realize now that clearing music yourself is relatively easy if you know what you are doing.  I would also add that low budget, DIY documentary filmmakers should consider using a song or two from a top recording artist if the song is important to the film and you can scrape up a few bucks to do it.  It’s not as expensive as you may think.  Depending on your distribution plans, the cost to license a song can be a couple hundred dollars for a thousand DVDs or digital downloads.

There were 12 songs in the documentary that needed to be cleared.   A few of them were in Public Domain and there were also a couple of Fair Use compositions in the doc as well. Nevertheless, the bulk of the music in the film needed to be licensed.  I had a very limited finishing budget and was not in a position to hire a music supervisor or entertainment lawyer to take on the task.  So I decided on DIY licensing for all 12 songs.  Most of these songs were by top recording artists like Bob Dylan, Paul Simon and Paul McCartney, to name a few.  While struggling with where to start and how to approach music controllers I received an email from a music supervisor who was looking for business.  I told him that I didn’t have the budget to hire him as my music supervisor, but that I would like to hire him as a music consultant.  We agreed on a reasonable fee of $500 and he showed me the ropes and answered all my questions throughout the process.  

My music problems started when I was filming a homeless man playing Bob Dylan’s The Ballad of a Thin Man on a piano in the woods a day after the main character of my film was arrested. I knew right then that this song is going in the film and that I would have to learn how to get it cleared.  Unfortunately or fortunately, I quickly realized that this new friend I made and the songs he sings while playing either the piano or guitar will be an important element to my story. It never failed, when something sad happened, he played a sad song. If a story needed hope his song signified hope and when every one was smiling and having fun – so were the songs he played.  When a person in your doc is singing the song or performing it with music you only need to get the publishing rights cleared.  This is also known as sync rights.

That was only the beginning of my battle with the music that ended up in my film.  Music that I didn’t plan for and didn’t even want that was playing on the radio in the background was the next problem for my music budget and work load. A good example is when I filmed a surprise birthday party, a great scene that was important to my story. The problem was that a radio was playing in the background and the song Alive and Kicking by Simple Minds was now in my film forever. You cannot remove unwanted background music from your original audio track and you can’t control what happens when there is a radio on in the room. So what do you do? You clear it! But that’s just plain wrong, I didn’t ask for this song to be in my film and quite frankly I would prefer it wasn’t in the background of this important scene. Why should I have to pay for it? That’s where understanding fair use comes into play and how the editing of your film in accordance with copyright laws will save you money.

From my understanding…the way Fair Use works is that as long as you do not edit or manipulate the song in any way you can claim Fair Use and use the song without paying for it.  But remember, if you dub the background radio song into your film differently then it was recorded in the background or if you insert a B-roll shot over the song playing in the background, you will now have to get the song cleared.  In my case with the Simple Minds song I used several shots in the scene and used the background song in my film chopped up.  In that scene it was low enough and the dialogue was loud enough to get away with it.  In another scene I worked on I had a song playing in the background of three edits that broke up the song.  In this case the choppy sound of the song changing was distracting because it was loud in the scene.  So I had to clear the song because I edited the music track as one uninterrupted cut behind the film footage making the song seamless throughout the three edits.  In other words I edited the film to the song making the song an artistic element to the production by modifying it to the film footage.

Then we have the background music for the documentary. I’m not talking about mood music or any type of sound effects. I mean a song dubbed into the movie from the original recording (This is called the Master). I used an original song, the master recording, for the ending credits of the documentary. I ended up editing my film credits to slow motion footage of the characters in sync to a song called Blessed by Lucinda Williams.

These are three situations that lead me to needing permission to use 12 songs in my documentary.  (1) Unintended music playing in the background while filming. (2) Music being played by a character in the film or people singing a song in your film. (3) A recorded song dubbed in for opening titles, the background of a scene or for ending credits.   The permission you need is called getting the song licensed or it may be referred to as getting the song cleared. The fact is you can not use somebody else’s music in your film without their permission and in most cases you will have to pay them to use it.  Song use is broken down into categories depending on how it is used in your film.  Below are the abbreviations for the different types of use in your film.

BI: Background Instrumental VI: Visual Instrumental EE: Logo
BV: Background Vocal VV: Visual Vocal
TO: Theme Open TC: Theme Close

This is where it gets a little crazy because each song has its own parameters based on your use of the song and your plans for distribution. How much of it are you using? Is the song just the instrumental or are the lyrics included in the composition? Is the song in the film used in the background or is it the main focus of the scene like the piano player I mentioned earlier? Are you using the original recording artist version or is someone else playing and or singing the song? Then you add the media uses element to the equation. What type of distribution do you have planned for the movie? Will the film go into film festivals? How about a theatrical run? Maybe distribute the film on DVD, Blu-Ray and Digital Downloads followed by a network airing or possibly Netflix?

There are so many variables involved with each song that you need to clear that it opens up many possibilities for mistakes that can cost a lot of money and a bunch of headaches down the road. The bottom line is to know exactly what you need and to license only what you need.  Do not clear your music too early.  If you are still editing then your music needs may change.  Make it clear to the music rep that your film is a documentary and describe the cause involved or the purpose of the film. Keep in mind though, you have to be careful about claiming poverty and throwing your “it’s for a good cause” rap around and start asking for the music for free.  I cleared a song for free one time from a major artist.  I requested it be gratis, but I was easily able to prove that the film was not going to be involved with any type of distribution.  I knew that wasn’t the right approach for this project since I need to get this film into distribution.  I could have claimed the “we’re only trying to save the world” stuff, but that was not a road I wanted to go down. However, I did end up using it a couple times though when reps would get a little too greedy.

The first step is to figure out if you only need the publishing rights of the song cleared or if you need both the master rights and the publishing rights cleared. The publishing rights (Synchronization License) are only needed for use of the song if you are not using the original recording by the original artist. If a character in your doc is singing and playing a song on guitar for example, you will only need publishing rights cleared.  If you are using the original recording you will need both the publishing rights and the master rights (Master Use License). In many cases the publisher and master rights are owned by two or more different entities.  Sometimes the same music administrator controls both the publishing and the master.  The terms used to describe the two license options are “Publishing Rights” and “Master Rights.”

Unknown-7You will have to research the song and find out who owns the publishing rights and the master rights. One way to do this is by doing a repertory search at ASCAP, BMI and SESAC websites.  Other helpful websites are for record company information and for public domain information.  Sometimes it comes together easily and you find your contact info pretty quickly, other times you can go crazy trying to find the owners of the rights to the songs you are clearing.  My agreement with my music consultant was that he would help me locate the contact info for all my songs.  If I was clearing just three songs I would have no problem finding the owners myself, but 12 songs was more then I was willing to take on.

Once you know who handles the music then you have to send an introductory email to the representative for the composition you are interested in clearing. Make sure your first email is short and to the point. In most cases the representative will respond to your email with a form to complete with detailed information about your project.  They will ask detailed questions about the budget, the scene it will be used in, what the film is about, how much of the song will be used, the territory you will distribute in and other questions like this.

Budget: You have to tell them how much the film will cost to make.                            Duration: How much of the song are you using?  10 seconds or 3 minutes?                      Usage: Will the doc be in film festivals, broadcast on PBS, Netflix, HBO or will you be running off 500 DVDs and selling them at screenings and on your website?              Territory:  It most cases you will say “World.”  This will give you rights to use it on the internet.

The most important part of budgeting and negotiating music rights will depend on what you will do with the film.  I would recommend getting all the music cleared for DVD and Digital Download distribution first.  A good starting point may be to offer 10-12 cents per DVD or download.  If you are expecting around 500 DVDs to be sold and maybe 500 downloads, you will be looking at around $120 for the publishing rights and another $120 for the master rights for a total of $240 if you need both.  They may accept it, or they may come back with 15 cents per unit or take the 12 cents but have a minimum of 2000 units.  Remember if your movie ends up on HBO or Netflix at a later date you can always renegotiate new media use for the licensing.  So start small with your licensing. 

Many times the music rep will give you an amount that they will charge you right up front.  In most cases you can make an offer and request that they accept it.  Start low, the worst they will do is give a counter offer.  It is also important to understand that the music industry works under the MFN basis.  MFN stands for “Most Favored Nation.”  What that means is that if you used the master recordings of 3 songs in your doc, all three song controllers will have to receive the same rate.  In the perfect world you would figure out who will give you the best rate and then approach the other two music reps with the same offer.  The same MFN practice goes for licensing the master from one controller and the publishing rights from someone else.  They will both get the same rate under the MFN clause that will be included in your contract.  So the best way to handle the MFN arrangement is to find out who will give you the lowest rate and then present that rate as an offer to the other music reps (or controllers as they are also known as) and hope that they will all accept it. However, if two reps agree to let’s say .10 per unit and one of the reps wants .12 you will have to pay 12 cents per unit to all three music controllers.  That’s how MFN works everyone gets the same rate at the highest amount.  Also keep in mind that if you need the master rights and the publishing rights you will pay .12 per unit to the owner of the master rights as well as .12 per unit to the owner of the publishing rights.  Now of course, if the same person owns the publishing and the master rights, the licensing will cost .24 per unit (DVD or Digital Download) in this example.

From the time you send your licensing request letter to the music rep to the time you receive your license can take anywhere from 2-weeks to 6-months.  You can speed up the process by being professional and thorough in all your corespondence to the music reps.  Use good judgment when sending friendly reminders.  Don’t harass the reps, but do not let them forget about you.  Low budget music is a very low priority for music reps.  You need to learn the art of being friendly, persistent and respectful all at once.  Some of the reps you will deal with have the authority to make decisions on the spot and others must go through an approval process.

The bottom line is this, professional popular music is reasonably priced to clear for documentaries.  So if you need to clear it then start with a low distribution plan like digital downloads and DVDs.  Expect to pay .10 or .12 per unit and .14 at the most.  Remember, if HBO ends up purchasing it, either they will handle clearing the music or you can go back and pay for additional usage.

Disclaimer: This article does not constitute legal advice.  You should consult a lawyer about licensing music for your documentary.

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