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Thursday, June 18, 2009
The Case of the Two Licenses
Chris Meyer | 06/18
“Royalty-free” music may still require a performance license.
A question came up recently about what sort of licenses are required when marrying music to motion graphics (or any imagery edited or animated in time with music). It so happens there are two, which you may or may not need to worry about:
- A performance license is usually required for the space where your video will be played. Musicians often sign up with a performance rights organization such as ASCAP or BMI, who then collect license fees (royalties) on their behalf. Fortunately, this is not your worry; it’s your client’s, who probably already has a blanket license to “perform” (play) music: television and cable stations do; sports stadiums do; trade show and banquet halls probably do; clothing stores might not. However, if you are doing a job for a client who will be playing your video with music in an unusual space, you might want to do them a favor and at least bring up the issue that they may need a music performance license for that event. And if your client already has a blanket performance license, you should still fill out a “cue sheet” detailing the music you are using so that the composer can eventually get their cut of the performance license fees.
- A sync license is usually required whenever you synchronize images to music. It is often negotiated directly with the composer or their agent on a case-by-case basis - there is no blanket license or synchronization rates organization. This is not the same as a performance license; if your client already has a performance license, it does not clear you to use that music with your graphics - you still need to acquire a sync license or otherwise get clearance from the composer. By the same token, buying a song for your personal enjoyment (i.e. downloaded from iTunes) does not give you either a performance or a sync license.
The sync rights issue is why purchasing stock music is so attractive to many editors or artists: The fee you pay for the music includes the sync license, usually at a much lower rate than you could negotiate directly. However, stock music - even “buy out” where you pay once up front - usually does not include the performance license. A quick Google search will turn up the information pages of stock music houses such as StudioCutz or Iamusic where they spell out the need for a separate performance license.
Cutting a different path is iStockphoto, who is now offering stock music as well. Their music does not require any performance license, making it especially attractive for smaller clients or unusual venues. For this to happen, they require that all of their contributing composers and musicians do not have a membership in any performing rights organization, as these organizations require performance royalties be collected for all of the output of all of their members. This is an interesting development in the area of user-generated content, further breaking down the old business models. (As a BMI member who still receives quarterly checks for the occasional performance of tracks from my one obscure album on radio, I have mixed feelings about this, although in general I applaud simplified business relationships.)
Yes, it’s more complicated than you probably imagined. But it is an essential part of the job. And after all, don’t you want to get paid for your creativity?
(I previously wrote another article on alternative ways to obtain music for your project; click here for more.)
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Although I didn’t post the original e-mail, I thought I’d try to offer some additional info:
Re: “Isn’t what you’re really talking about is the entity (person or corporation) who owns the copyright of the composition (music and lyrics)? This may or may not be a musician and may or may not be the person who performed the music?”
The entities entitled to collect public performance royalties are i) the writer (or co-writers) of the composition; and ii) the publisher (or co-publishers) of the composition. This assumes each entity is registered as a writer member / publisher member with the applicable performing rights society(ies) (ASCAP, BMI, SESAC in the U.S.). The publisher is typically referred to as the copyright owner of the composition, although sometimes the writer and publisher are, in fact, one and the same. The standard music industry composer deal requires the writer to give up ownership to the publisher, subject to a negotiated fee (the initial compensation) and - sometimes - a share (usually 50%) of a long laundry list of various royalties (synchronization, mechanical, print and so on). Sometimes the publisher will not agree to pay any royalties, but even in such “buy out” scenarios the publisher cannot prevent the writer from collecting their share of public performance royalties (i.e., 100% of the so-called “writer’s share”) directly from the applicable society, with the publisher collecting 100% of its “publisher’s share” (in other words, if $2 is generated by the public performance of a song, the applicable society sends $1 directly to the writer and $1 directly to the publisher or its administrator). This is why performance royalties (in the U.S.) are so unique. It’s the only royalty stream that the publisher cannot “steal” from the writer!
Thus, it’s also not entirely correct to state that the copyright owner (alone) “owns the musical composition and collects the performance royalties.” Yes they own it, but both the copyright owner (publisher) and writer will get their fair share of performance royalties as described above.
Best, DS
Posted by .(JavaScript must be enabled to view this email address) on 11/23 at 12:57 PM
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