9giantsteps - Latest Comments in Songs in movies, TV shows, and ads: How the licenses work

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Tue, 30 Mar 2010 12:16:41 -0000

Thanks for the question.

If your band does a cover, and a film maker wants to use this version (i.e.
your cover) in her film two things must happen:

1. The film maker must get the synch license from the publisher (or writer
directly if they have not assigned the (c) to a publisher). The film maker
will do this first, because if the publisher/writer does not grant the
license, there's no way to move forward.

2. Once the film maker has a sense that the publisher/writer will grant the
synch license, and terms are agreed upon, the film maker must get the master
usage license from whoever controls the version of the song. This will be
the label who released the cover version of the song on the record they (the
label) released. If there's no label (i.e. the artist released the work
herself), the film maker must negotiate with the artist who released the
version of the song.

In order for the song to be used in the movie, both sides (synch and master
) must be in place.

Is that clear? Let me know.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Mon, 29 Mar 2010 15:33:16 -0000

Linda,

Thanks for the question. Yes, as owner of the music (I assume that means the (c) and the master), you would, as the sound recording copyright owner (SRCO) be entitled to receive payment. Additionally, if you're the featured performer you also get royalties when the (c)d works are publicly performed in a digital, non-interactive
manner.

As with ASCAP or BMI, you'll need to register the songs with SX.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

lindathornberg — Mon, 29 Mar 2010 15:21:58 -0000

Thanks so much for the great info George! I was just reading down the thread between you and Lisa about Sound Exchange.
I have a a question about that. I own an original music company that receives quarterly payments from BMI for television commercials. Do you know if Sound Exchange also tracks original Music for our commercials when they are used on the internet (eg. this music being used on a website? Or if this music is used in conjunction with other web content?).
Thanks again, Linda

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Mon, 29 Mar 2010 13:00:13 -0000

Thanks for the question.

If your band does a cover, and a film maker wants to use this version (i.e. your cover) in her film two things must happen:

1. The film maker must get the synch license from the publisher (or writer directly if they have not assigned the (c) to a publisher). The film maker will do this first, because if the publisher/writer does not grant the license, there's no way to move forward.

2. Once the film maker has a sense that the publisher/writer will grant the synch license, and terms are agreed upon, the film maker must get the master usage license from whoever controls the version of the song. This will be the label who released the cover version of the song on the record they (the label) released. If there's no label (i.e. the artist released the work herself), the film maker must negotiate with the artist who released the version of the song.

In order for the song to be used in the movie, both sides (synch and master ) must be in place.

Is that clear? Let me know.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

lindathornberg — Mon, 29 Mar 2010 11:43:12 -0000

So.... if my band has their own publishing company (XYZ Publishing), and does a 'cover' of a popular song... And the film maker wants to use OUR version of the song. Does the film maker only have to sign a deal with the Composer(s) of the song...to get clearance... even though their original publisher might have been Arista for example?

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sun, 28 Mar 2010 14:55:10 -0000

Thanks for the question, Bradley.

If a songwriter has no publishing deal (i.e. he has not assigned the (c) to
the song to another person/entity), that songwriter controls 100% of the
publisher's share of the song. Remember, when it comes to performance
royalty, there is a writer's share and a publisher's share. Each totals
100%. So, if you are the sole writer, and you have not assigned any part of
the (c) of the song to publisher, you would have 100% of the writer share
and 100% of the publisher share.

In order for any of the PROs (ascap, bmi) to pay you, you must fill out and
return song submittal forms for each song. On the form(s) you will delineate
the writer share and publisher share. You can do this under your own name,
and use your social security number. In this way, you'd say that John Doe
(not the X founder, genius) is 100% writer and 100% publishers, and when
ASCAP pays out, they'll just pay it all to John Doe.

There are, of course, reasons for setting up fictitious entities
(corporations or LLCs). These allow you to keep your personal assets
separate from your professional assets. Additionally, you can come up with a
name or names for your publishing entity. In this manner, you might submit
your form with you as the writer, and the name of your company as the
publisher. You see this a lot on the credits of CDs: ["Song"] written by
[Writer] and published by [songs of writer], ASCAP.

If you're just interested in using a fictitious name, you could also create
a d/b/a (doing business as) under your own personal SS#. The disadvantage of
this is that you have no separation between your personal assets and the
businesses. If, for instance, you're sued for (c) infringement and you lose,
and the plaintiff is awarded damages, and you have no separation between
your personal and business assets, the plaintiff can come after your
personal assets.

Please, please do not confuse the above (i.e. setting up an entity to handle
the income from your perf royalties as a "publishing company." I hear
artists all the time say that they have a publishing deal with BMI/ASCAP.
They don't. ASCAP and BMI are not publishers.

You could set up a publishing company, and one part of this company's
purpose would be to collect the publisher's share of the perf royalty, but,
unless you're also dealing with the other publishing concerns (registration,
collection (of all relevant income: perf, mechanicals, synch, print, etc.),
and - most importantly - exploiting the work, you're not a publishing
company.

Hope this didn't just make things more confusing.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

bradley — Sun, 28 Mar 2010 14:41:37 -0000

You might have mentioned this, but... if the song writer has no publishing deal, they will have to create a publishing entity in order to collect the 'publishers share' of royalties...easy and free...ascap or bmi....or sesac if they invite you....otherwise they miss out on half of the bux....yes yes??

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 10:34:58 -0000

separate entity.

Re: Songs in movies, TV shows, and ads: How the licenses work

SongwriterLisa — Sat, 27 Mar 2010 10:34:00 -0000

Just curious is SoundExchange part of one or the other BMI and or ASCAP????? Did they created a separate entity to cover the legislation that was passed?
This is only for curiosity sake, I love to know how business and organizations think and operate.

Sincerely,

Lisa A. Leitl
President of Dezine Management, Inc.

www.hghplus.net
http://theyinside.wordpress...

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 10:32:42 -0000

My pleasure, and unload I will, and if you ever have any questions, don't
hesitate to contact me: gah650 [at] gmail [dot] com.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 10:30:48 -0000

...and, I keep forgetting to address your question about what DVD deals I have negotiated. I'm not going to list my bona fides here on the blog (though, it's not hard to find them scattered online), but suffice it to say I have negotiated MANY of these types of deals.

Are they more complex than a simple buy out? Sure. But simple buy outs aren't complex at all.

So, it all sort of depends on how you define "complex." A license for a song to be used in a DVD (and, these days, it's not just DVD, it's also online streaming, digital download sales, etc.) has a few moving parts, but compared to, for instance, the purchase of a house when there is a mortgage involved - i.e. something that most ordinary people do, often without the benefit of lawyers (to their detriment, by the way) - a DVD license for a song just isn't that complex.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

SongwriterLisa — Sat, 27 Mar 2010 10:30:29 -0000

George,

I appreciate the information and I never find any information boring...information is power. I would never think that SoundExchange is a replacement for the other organizations, but thank you for the heads up...it's hard to imagine anyone confusing the issue.
If you have any other information feel free to unload you can never have "too much" info. Thank you for the quick response and the interesting and informative history lesson.

Sincerely,

Lisa A. Leitl
President of Dezine Management, Inc.

www.hghplus.net
http://theyinside.wordpress...

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 10:23:43 -0000

PS: I said I wouldn't bore you with the history, and that's precisely what I
did. Apologies.

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 10:23:12 -0000

Lisa,

I won't bore you with the history, but it was the 1995 Digital Performance
in Sound Recordings Act and the 1998 Digital Millennium Copyright Act that
put in place a performance right for sound recording copyright owners
(SRCOs).

SoundExhchange's authority to collect for/distribute to these SRCOs comes
from a designation by the Librarian of Congress and the US (c) office.

So, yes, they sort of stepped in, but it was really a requirement based upon
legislation.

Please, please don't do what too many others do and mistake them
(SoundExchange) as a replacement for ASCAP/BMI. They're not. SoundExchange
collects different things (royalties for SRCOs and featured performers when
their (c)d works are publicly performed in a digital, non-interactive
manner). ASCAP/BMI continue to collect on behalf of (c) holders (i.e.
writers/publishers) of these songs whether these songs are publicly
performed digitally or non-digitally.

Thanks so much for the great questions and conversation.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

SongwriterLisa — Sat, 27 Mar 2010 10:07:49 -0000

George,

Yes, I was just reading about "SoundExchange" they're covering satellite radio, internet radio, websites, etc. Sounds like they're the equivalent of "BMI and ASCAP" for the digital age!
Sounds like they stepped up to take on a medium neither of the others organizations were able to or wanting to keep up with.

Sincerely,

Lisa A. Leitl
President of Dezine Management, Inc.

www.hghplus.net
http://theyinside.wordpress...

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 09:53:56 -0000

I should also note, you gotta understand, I have been talking about this topic for a LONG time. I have to try it make it entertaining for myself (and, maybe, others - certainly, not you, I get that), or I won't write about. Or, more precisely, I'll write about it in the same dry, academic (yes, I am a college professor) manner that others do, and, apparently, no one will read/understand.

Again, your points are well made, and well taken, and I apologize for offending you (and, likely, others). Not my intention.

"Tone" is hard in writing (particular blog posts). I think (though, could be wrong) that if I was speaking this to you, you would have gotten my tone, and would have seen it lacked bitterness, and attempted at humor.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 09:49:50 -0000

If an artist performs a cover on the Super Bowl (or any other publicly broadcast venue), the same rules do indeed apply. For instance, suppose the Who had performed "Yesterday" by the Beatles. In addition to being a strange choice, the Who would not have received a dime from the public performance of that song. Rather, the songwriters (The Beatles, on most of their compositions divided it between John and Paul) and the publisher(s) for these songwriters would see the public performance royalty via the PRO (ASCAP/BMI) with whom they are affiliated.

Because the Super Bowl is such a global event, and broadcast around the world, the songwriters and publishers of Yesterday would also see public performance royalties via the individual countries equivalent to ASCAP and BMI. Different countries handle it differently, but the net result seems to be roughly the same.

As an important aside (and this has come up in other comments), the US is one of the very few countries who does not pay a public performance royalty to the performers or content holders (i.e. labels). The other countries, by the way, read like a rogue's gallery of miscreants: N. Korea, Iraq, etc. There is legislation in place to change this; we'll see if it happens. So, when these other countries air the super bowl, and a public performance takes place, not only do they pay (via their clearinghouse agencies; i.e. their equivalents of ASCAP/BMI) the writer/publisher, but also the performer/content holder. So, were the Who to play "Yesterday," and some station in, for instance, the UK aired the Super Bowl, they (the UK station, via their clearinghouse agency, in this case: PRS) would pay not only the songwriters of Yesterday and their respective publisher, but also the Who (because they performed it). Were it a synchronization (i.e. they used a recording of the Beatles, the label, EMI, would also get paid).

Hope this makes sense.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 09:36:33 -0000

Lisa,

That's exactly right. Movie theaters are exempt from paying public
performance royalties.

Again, you are right, when a (c)'d song is publicly performed (broadcast) on
TV or radio, the writer of the song, and, if they've done a pub deal, the
publisher of the song get paid. PLEASE note, if you are a writer who has not
done a publishing deal, you are, by default, your own publisher, and thus
the PROs (ascap/bmi) will pay you both the writer share and publisher's
share.

And, yes, for TV and terrestrial radio public performance (i.e. broadcast),
neither the performer nor the label are paid. This is sort of unique to the
US (most other countries except for N. Korea, Iraq, and a few others) pay to
both the writer and the performer/label. There is legislation wending its
way through the legislative branch to try and change this.

Note, for digital performance (i.e. streaming from websites, etc), there is
a public performance royalty for performers/content holders (i.e. labels) in
addition to the standard performance royalty for writers (still handled via
the PROs). The digital performance royalty is handled via an organization
called SoundExchange. If you're a performer/content holder (label), you
should register the compositions you control with SoundExchange in the same
manner you do with whichever PRO you are affiliated.

Thanks for the great question.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Sat, 27 Mar 2010 09:27:59 -0000

Point(s) taken. I appreciate your comments. Really just trying to be
funny, but I completely take your point.

Thanks,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

SongwriterLisa — Sat, 27 Mar 2010 09:11:11 -0000

So if I'm understanding correctly....there's a one time fee for Synchronization and Master Usage. The movie theaters have a "special" agreement and don't have to pay public performance royalties. When the Ad, TV show or movie is broadcast (performed on TV) there's a Performance Royalty paid to the writer and publisher. The performers of the song if they are not the "songwriter and or publisher" make no money from the song performed because there are no "Artist Royalties" involved in the negotiations above.... Is that the general idea? Let me know if I've gone awry :-)

Re: Songs in movies, TV shows, and ads: How the licenses work

Richard — Sat, 27 Mar 2010 07:15:28 -0000

You come off sounding like some bitter & rejected songwriter.."music supervisor referred to as lackeys"?? WTF?? What kind of generalization is that about some super talented people in the Film & TV industry...While you are able to outline Film/TV licensing into a simple 3 paragraph primer..I find it interesting how your article is peppered with angry little barbs....maybe it was "your" model to license "your" artists music into any piece of shit.. as you say...(another barb at the quality of TV & Films? maybe?) but thankfully its not what many others do...then below you mention "complexities in negotiating Video (DVD) rentals & sales"? Im curious what US Studio have you negotiated a DVD royality provision for your music or composers? Unless you are talking about a simple buyout and think a buyout is complex...and you are a college professor?? wow..

Re: Songs in movies, TV shows, and ads: How the licenses work

DwaineAllison — Fri, 26 Mar 2010 21:34:51 -0000

And when an artist performs live on tv, i.e. superbowl, does all of the above apply as well, if he didn't write the song? It seems unlikely, otherwise a writer could prevent an artist from doing their job (singing the writer's music).

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Fri, 26 Mar 2010 21:30:00 -0000

I wouldn't have it any other way, Dale!

thanks for reading.

best,

George

Re: Songs in movies, TV shows, and ads: How the licenses work

Dale Atchison — Fri, 26 Mar 2010 21:25:02 -0000

Thanks so much for this explanation. I had wondered for years why sometimes a movie sound track or tv ad included the original version of a song, and sometimes it was an obvious (and usually poor) cover. Now I know... and will sound so much smarter next time I'm asked, and I quote your answer as if it were my own <g>.

Re: Songs in movies, TV shows, and ads: How the licenses work

George Howard — Fri, 26 Mar 2010 00:04:38 -0000

Jeff,

My pleasure, and, yes, please do email me the article.

Thanks,

George