Introduction - Creative Career Stories | For Artists, By ...



Licensing Kit: Music Licensing Agreement for Use in a Film/VideoBy Peri PakrooPeri Pakroo is a business author and coach, and the founder and Publisher of Pyragraph. Her business books include The Small Business Start-Up Kit, The Women’s Small Business Start-Up Kit, and Starting & Building a Nonprofit, all published by Nolo. Special thanks to Attorney Richard Stim for editorial feedback and contributions to this Kit. This Pyragraph Premium Resource is sponsored by:Music Go Round AlbuquerqueKeshet Ideas and Innovation CenterIntroductionAnyone who has ever made a video or film knows that music can have a huge impact on the final product. This is true for just about any kind of video, from a narrative thriller to a television commercial spot to an industrial training video: Music helps set the tone, engages viewers, and can sometimes make or break a video project.It follows that as a video/filmmaker, or as a musician, it’s important to understand how to obtain or give the necessary rights to a piece of music so that everyone is on the same page about how the music will be used, what fees will be paid (if any), and other important terms. Knowing the basics of music licensing is important to avoid conflicts—or even worse, allegations of infringement or other legal troubles—which are especially painful to deal with after a film is made. That’s where this Music Licensing Agreement comes in: It is a simple legal document covering the important aspects of the agreement between the musician and filmmaker, regarding use of a piece of music in a video/film. Who is This Agreement For?The info and agreement template in this Licensing Kit is aimed at helping filmmakers and musicians execute an agreement for a song to be included in a film or video. The agreement template is for a song recording that already exists; if the filmmaker wants to record their own cover, there are additional issues to consider that are discussed below; you may need an additional agreement in this case.Note that this kit is not geared for developing a music video; the process and issues involved in making music videos are different. (We will publish a legal kit for music videos in the near future.)We’ll assume that you are either a filmmaker or a songwriter; the agreement template we provide in this kit is suitable for either party and not weighted towards either the filmmaker’s or songwriter’s interests. We’ll also assume that the songwriter manages their own compositions and is not represented by or affiliated with a music publisher (such as the Harry Fox Agency). As noted throughout the material below, it is possible that some other entity owns one or more of the copyrights involved in a music licensing deal, and in that case you’ll need to make sure the right entities are involved. You can still use the information in this kit to guide you, but you may need to use a specific agreement provided by the music publishing company, record label, etc.Before walking you through the terms of our agreement template let’s take a quick look at some of the essential background info you should know about music and copyright.Who Owns What?Let’s start with some context. We’re talking about intellectual property here: creative work that is owned by the person (or sometimes, a company) that creates the work. As a musician, you own songs that you write, and recordings that you produce. This ownership is generally called copyright: i.e. artists own copyright in the works they create: songs, paintings, poems, photographs, novels, etc. When you own copyright, that means that no one else may reproduce your work without your permission. If they do, they are committing what is called infringement, which means they are illegally using your work, and may be subject to legal penalties such as fines.When it comes to musical recordings, there are two copyrights: one for the song itself (mainly the melody and lyrics), and another for the particular recording of the song. Let’s look at each of these just a tiny bit more closely.Song Composition CopyrightAs the person who writes a song, the songwriter is the owner of copyright in the song. Note that copyright protects melody and lyrics; you can’t copyright chord progressions. (Weird, right?) Professional songwriters often sign with a music publishing company (such as the Harry Fox Agency), or create their own music publishing company, to manage the songs and the copyrights. You can think of a music publishing company similar to a book publishing company: It handles the rights of the songwriter, deals with licenses, collects money and distributes royalties. Plus, a good publishing company will look for opportunities for the songs and how to get them out into the marketplace: films, commercials, etc.In the real world, many fledgling songwriters act as their own publisher. Often this is done simply by using the songwriter’s name or a variation of it, like “Chris Dudley Music” or “Sage Harrington Songwriter” One benefit of being your own music publisher is that you’ll keep 100% of any money you make from your songs, instead of splitting it with a publishing company (the typical split is 50-50). Besides dealing with music publishing, songwriters also must typically affiliate with what are called “performance rights organizations” (PROs) which are organizations that monitor and collect royalties for songwriters when their songs are performed publicly, either live (i.e. at a concert or nightclub) or on the radio, TV, streaming service, or other public broadcast. The two main PROs are ASCAP and BMI. Setting up a music publishing company and dealing with ASCAP or BMI affiliation is beyond the scope of this kit, but neither are very hard to do. Check out Richard Stim’s Music Law: How to Run Your Band’s Business, or some of the extensive free information online at the ASCAP and BMI websites.Last, note that songwriters who are really on their game will file paperwork with the United States Copyright Office to officially register their works—but note that it’s not necessary to do so in order to establish ownership rights to your song. As soon as a songwriter writes down or records a song, they are the owner of the song, unless/until they sell that copyright to someone else. We don’t cover the process of registering song copyrights in this kit; there are many good resources online, including this Lynda e-course by Attorney Richard Stim on copyrighting a song. Master Recording CopyrightSeparate from the copyright to the song composition is a copyright in each recording made of that song. Performers are typically considered to be the “authors” of recordings of their performances, which means they are equal co-owners. If a producer or engineer’s contributions are significant enough to be considered works of authorship, they may be considered to be a co-owner. In legalspeak, the producer’s contribution must include an “appreciable” amount of original authorship—say, effects, beats, editing, overdubs, etc.—to support an ownership claim by the producer. If the producer or engineer is simply setting up mics and recording levels, they would not typically be considered an author/owner of the finished recording. In this case, if there is no written agreement otherwise, typically the performers will be considered equal co-owners of the recording. (See Tip below.)To avoid any gray areas, it’s smart to discuss in advance of any recording session what the expectations are regarding ownership of the masters—not just who will physically own them, but who owns the rights to use those recordings. Even better, put your understanding in writing. Remember, this is separate from who owns the song composition (i.e. the songwriter); this is about who has the right to give permission to use the recording, and who gets paid if someone else is offering to buy the rights.If a record label set you up with a recording studio, it’s likely that the record label asked you to sign a contract giving the record label ownership of the recording. If you were able to negotiate ownership, good for you! But most labels insist on ownership of the master recordings made during the term of the recording contract, so they would be the entity that could grant the master use license—and the entity that would get paid, if there’s any payment involved.Tip: Clarify ownership before you start the recording process. In the real world, musician friends often help each other with recording, and ownership of the master recordings is often not discussed. If the recordings are mostly used as demos, it’s probably not a big deal. If the recordings are used on a CD that you sell at shows, or via download at Bandcamp, chances are the band maybe paid (in cash, beer, etc.) their sound tech friend who did the recording, and the sound tech friend doesn’t expect any further payment or cut of any CD sales. For plenty of local bands, this is probably safe enough. But think about what if a film with a moderate budget offered a decent amount of money for the recorded song—say $500 or even $5,000—to be included in the film. The sound tech friend at that point may feel entitled to some payment, especially if she contributed a lot (remember the legalspeak, an “appreciable” amount) to the sound of the recording. If you envision any remote possibility of something like this happening, it’s best to clarify ownership while you’re planning the recording project, even if it’s just roughed out in a short email. For contract language see Richard Stim’s Music Law: How to Run Your Band’s Business.Here’s an example:Meredith wrote a song “Swirl” and owns copyright in the song; i.e. the melody and lyrics. She made a home recording of “Swirl.” As the person who did the recording, Meredith owns copyright of that recording as well. This is separate from copyright in the song itself (again, the melody and lyrics of “Swirl”). A few months later Meredith signed with a record label, who set her up to do a studio recording of the song (and a whole album). Her record label owns copyright in that recording of “Swirl”; this was spelled out in the contract she signed when entering into the relationship with the record label. But Meredith still owns copyright in the song itself—i.e. the melody and lyrics—and in the home recording she did a few months earlier.What Is a License?OK, now let’s talk about giving/getting permission. In legal terms, permission is called a license. The terms are practically interchangeable in meaning, but when we’re talking about the actual legal agreement we’ll use the term “license.” So instead of a “Permission Agreement” we’ll use the term “Licensing Agreement,” or just “license” for short.When it comes to getting permission (if you want to use someone else’s work) or giving permission (if you’re the copyright owner) to a song or any other copyrighted work, the US copyright laws and the processes/systems that have developed around those laws, have different rules depending on what the intended use is for the work.This is a good opportunity to hammer home a point you’ll do well to remember: The intended use of any copyrighted work makes an enormous difference in what hoops you have to jump through and what rules apply. When you want to use someone else’s song, poem, painting, film clip, or any other copyrighted work, the first question to address usually is, “How do you plan to use it?” It’s more than a minor detail; it will often dictate the terms of your agreement. So just remember to start with clarifying what the use will be of the work in question.So let’s get back to how copyright and licensing works with songs and video/film projects. Remember, songs involve two possible copyrights: the song itself, and any specific recordings of the songs. Here’s how licensing works with each of those copyrights:Permission to use the song itself (melody and lyrics): As mentioned above, the specifics on how permission is given/granted for a song in a film depends on what the specific intended use is. If the filmmaker wants to do a cover—i.e. they hire musicians to perform their own version of the song—and record it and release it via CD or digital download, they are allowed to do so as long as they pay the songwriter what’s called a “mechanical license” fee, which is a fixed amount set by law (currently 9.1 cents per recording sold, per song). This type of permission is called a “compulsory license,” and it reflects a rule of US copyright law: Songwriters must allow others to record their song (that’s the “compulsory” part) as long as the songwriter is paid for any sales of CDs or downloads (i.e. “mechanical reproductions”). If the other party wants to use an existing recording of the song in a video or film, the type of license used is called a “synchronization license” (often shortened as “sync license”). Basically this means the other party wants to sync your song (again, the melody and lyrics that you own) within their film (“sync-ing” is just a nerdy way of saying “putting your song in their film”), and wants permission from the songwriter. Sometimes a music publishing company owns copyright in a song, and in that case it’s the music publishing company who would give permission. Basically, whoever owns the songwriting copyright is the person/entity who can grant the sync license. For the purposes of this Licensing Kit, the second situation is the one we’re talking about: A filmmaker wants to use an existing recording of a song in their film. The permission needed in that case, with regard to the song composition, is a sync license. “But wait!” you’re saying. “What about the copyright in the specific recording? Didn’t you say the filmmaker need permission for that too?” Hooray, you remembered! Yes indeed, the filmmaker will need an additional permission/license: Permission to use a particular recording: This specific permission is called a “master use license.” The term “master” simply refers to the master recording. Whoever owns the copyright in the master recording is the person/entity who can grant this permission/license. So let’s summarize: When a filmmaker wants to use a specific recording of a song for their film, the filmmaker would execute two agreements: a synchronization license with the songwriter, and a master use license with the owner of the recording. We offer a streamlined Master/Sync License Template below.Sidebar: What if the filmmaker wants to record a cover version?It’s outside the scope of this kit, but just to be thorough let’s consider what happens if the filmmaker wants to do their own recording of a song (aka a cover version). This might be the case if they want to do a stylized version, or it’s too expensive or otherwise difficult to get permission from the copyright holder of the master recording (the master use license). In this case, there are a couple possibilities:If the filmmaker plans to release the cover on a soundtrack CD, they should use the process of obtaining a compulsory/mechanical license (permission from the songwriter to cover the song and sell it on CDs or digital downloads, and payment of the statutory fee). In addition, the filmmaker would need a synchronization license to use the song in the film (i.e. permission from the songwriter to use the melody/lyrics “synced” to the film). If the filmmaker were planning only to include the cover song in the film, and not ever include it on a CD or as a download, the filmmaker could just obtain the synchronization license from the songwriter. The compulsory/mechanical license would not be necessary if the song were not for sale via CDs or downloads. What You’ve Been Waiting For: The Agreement TemplateBelow we offer a simple combined Master and Sync License that will cover the use of a song in a film, webcast, or other audiovisual work. It can be used either by the filmmaker or the musician. Sections for you to fill out are marked in yellow highlight.Note that the agreement below can be used if the same entity (a person, band or company) owns both the song and the recording that will be included in the film. If a record company owns the recordings, the filmmaker will need to execute a separate Master Use Agreement with that company.Master Use and Synchronization LicenseThis Master Use and Synchronization License Agreement (the “Agreement”) is made between: [enter name of songwriter/owner of master recordings] (“Licensor”) and [enter name of filmmaker] (“Filmmaker”). Ownership and Administration of RightsLicensor is the copyright owner of the following:master recordings (“Masters”): [enter titles of master recordings]compositions (“Compositions”): [enter titles of compositions]Rights for the Compositions [] are [] are not administered by a Performing Rights Organization. If they are administered by a PRO, that PRO is: [name the Performing Rights Organization]Terms of UseFilmmaker is interested in licensing the Masters and Compositions for the following audiovisual production (“Production”): [enter title of Production]The Production will be distributed in the following Territory:? [enter where the Production will be distributed; i.e. “United States” or “Worldwide”]Filmmaker’s License to use the Masters and Compositions will last for the following Term: [enter how long the license will last]Modifications to Compositions Filmmaker shall not make any change in the original lyrics, if any, or in the fundamental character of the music of the Compositions without written prior authorization from Licensor. Nonexclusive LicenseLicensor grants to Filmmaker and Filmmaker’s successors and assigns the nonexclusive right to use and reproduce the Masters and Compositions solely in synchronization with the Production within the Territory and during the Term. Licensor grants to Filmmaker the right to publicly perform the Masters and Compositions solely in synchronization to the Production. PaymentFilmmaker shall pay Licensor $[enter fee] ?for the rights granted in this Agreement. Payment shall be made [enter payment terms]. Warranty Licensor warrants that it has the power and authority to grant the rights in this Agreement and that the Masters and Compositions do not infringe any third-party rights. In no event shall Licensor’s liability for a breach of this warranty exceed the amount of payments received under this Agreement. Credits Licensor shall receive credit in the following form: [enter any credit due, using specific language for the credit itself, and stating exactly where credit(s) will appear].Cue Sheets Filmmaker agrees to furnish Licensor a Cue Sheet of the Motion Picture within thirty (30) days after the first public exhibition of the Motion Picture. Miscellaneous This Agreement may not be amended except in a writing signed by both parties. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties. This Agreement shall be governed by and interpreted in accordance with the laws of the State of [enter the state where any litigation would be filed]. If a dispute arises under this Agreement, the parties agree first to try to resolve the dispute with the help of a mutually agreed-upon mediator in [enter the city and state where mediation would occur]. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If the dispute is not resolved within 30 days after it is referred to the mediator, any party may take the matter to court.SignaturesLicensorFilmmakerSignature:_________________________Name:_________________________Title:____________________________Mailing Address: Date:____________________________Signature:______________________Name: _________________________Title: _________________________Mailing Address: Date:______________________Explanation for Master Use and Sync License Introductory paragraph: This section identifies the parties entering into the agreement. Insert the name of the owner of the songs and recordings (“Licensor”) and the name of the video/filmmaker (“Filmmaker”). ?Ownership and Administration of Rights: This section identifies who owns what. Fill in the fields, including the name of the film or video production (“Production”), the names of the albums or song titles (“Masters”), the song titles (“Compositions”), and the Performing Rights Society (PRO), if any.Terms of Use: This section states some of the basic details regarding how the music will be used. Enter the name of the film in which the music will be used (“Production”); where the film will be distributed (the “Territory,” typically “worldwide”), and the length of time the permission is being granted (the “Term,” typically, “until expiration of copyright”).Modifications to Compositions: This section provides that the Filmmaker may not make modifications to the song without written permission from the songwriter/Licensor. Nonexclusive License: This section establishes the rights under copyright law (the licenses) that the licensor is granting to the filmmaker. Specifically, the rights being granted are nonexclusive, meaning the songwriter/Licensor is free to give permission to anyone else to use the same song. It’s possible but much less common to do an exclusive license, but it would typically be much more expensive.Payment: Include any payment information in this section, including the total amount to be paid and any details regarding the timing of the payment (for example, “upon execution,” or “half upon execution, the half due 30 days after execution”). Warranty: This clause is a contractual promise that the songwriter/Licensor is legally capable to grant the rights in this agreement. The last sentence in the Warranty section limits the amount of damages the Licensor must pay if it breaches the warranty. ?Credits: This section establishes what credit must be included in the Production. Be specific with the exact language to be used.Cue Sheets: A Cue Sheet is a list of all of the music that is used in a film or video, with details about how it was used and timing. There are many Cue Sheet templates online; Google “cue sheet template” and you’ll find several.?Miscellaneous: This section covers some basic contractual territory, with standard language regarding enforceability of the contract. It also establishes that if a dispute arises, the parties will try mediation before filing any lawsuits. Mediation can be a much less expensive and less traumatic option for resolving disputes, so it’s generally a wise idea to include this clause. Signatures: The agreement must be signed by individuals with the authority ?to represent the Licensor and the Filmmaker. In most cases, this will be the songwriter and filmmaker themselves. Lawyer-y Standard Disclaimer StuffWhile Pyragraph’s editors and writers work hard to ensure the information we present is accurate, we may not be held liable for losses or damages from your reliance on Pyragraph content.?Nothing presented at should be construed to be legal advice, accounting advice, or other professional advice. For professional advice applicable to your specific circumstances, you should consult with a lawyer, accountant or other professional licensed in your state. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download