Music licencing

[Phil Rhodes]

Hi,

 

Insert sounds of teeth being ground down to the gumline, and come with me on a brief safari through the dangerous jungles of music licencing.

 

Officially, in the UK, as with most countries, to licence a piece of music you go to the copyright protection society, in this case the MCPS (www.mcps.org.uk). The MCPS have a reputation for being slow, onerously overcomplicated, and slightly confused. Six weeks ago, I'd had so little to do with them that I was unable to form an opinion either way and was inclined to give them the benefit of the doubt.

 

Insert hollow laughter.

 

Now I appreciate that the workings of the MCPS is based entirely on their knowing of the existence of pieces of music and who controls the rights of use to these works, and I appreciate that this information can only be as good as that with which the MCPS are supplied by the music publishers. But really, I'd take it as a pretty good indication of a problem if I can call up and ask about four separate pieces, all of which have been released on CD compilations in the UK, and they haven't heard of any of them. I have since discovered that this is entirely normal, and that unless it's a top-ten hit from the last six months the likelihood of the MCPS knowing about it ranks alongside that of the US government making a moderate foreign policy decision. What's more, you don't just get told that they don't have any information - the very tone of voice of the call centre operator implies that not only do they not know about it, but you are wasting their time asking for it, you are in fact a moron for asking for such an obscure piece of music, and they're awaiting your apologies for even broaching the subject. This doesn't help.

 

This is great, this is wonderful, but this really is just the everyday reality of dealing with these people. Knowing you'll have to ask a question of the MCPS is rather like biting your lip and knowing that within a day or so it'll blossom into a mouth ulcer.

 

When it gets really surreal is when you're enquiring about library music.

 

You'd have thought this would be easy - incredibly easy, made as simple and straightforward as possible, since it is the very raison d'etre of the work to be exploited in productions. Tiring by now of the MCPS's endless administrative meanderings, you call the library direct. And here's the thing - the first one you call agrees to do a deal directly with you, because they're painfully aware of what a pain in the neck the MCPS is, and is fed up with having their music pirated because nobody can be bothered to go through the pain and suffering. So, they tell you that the MCPS charge would be 200, but since they're dealing direct, they can do you a deal for 100 since - and this is the absolute icing on the cake - the MCPS charge such large fees and tarriffs for their admin work that it practically halves the amount the composer receives!

 

Entering a new phase of manic laughter at this staggering revelation, you call the second music library, confident now that you will be able to sidestep the MCPS completely and avoid the heartache altogether. However, this second library, a much younger one, is still doing things by the book, and insists that you contact the MCPS. Stocking up on Prozac, you call the number, listen to the queueing system for twenty minutes, and eventually get told that the MCPS deals with library music licencing only through its website.

 

So you surf on over to the website, and discover that in order to use the library music service, you have to register. Registration involves signing up to the MCPS charter, among other things, and requires that you be a production company. I'm not a production company, so I send an email to the enquiries address.

 

That was a week ago. I've since begged with the music library to deal direct. They won't. Only one person at MCPS can help me, and she's not in.

 

Now, if anyone out there is still with me, I think you'll agree that this is probably one reason why people who could quite easily afford the fees end up pirating music, because they can't afford to have half their staff in therapy after dealing with the hideous machinations of music licencing. Dealing with music licencing in the UK is like having piles, and while it's possible, or even laudable, to smear the MCPS with Anal-Soothe cream, it doesn't actually make the pain any less.

 

Phil

[Guest Ultra Definition]

Friend of mine made an indie Super 16 mm film and it had bunch of classical music that he wanted to add. He selected the best recordings. Before he started contacting everyone, I told him to forget it. We got excellent recordings from another country where the film will most likely never be shown. We altered them a little. Nothing to pay to anyone and if he ever gets caught, all they can ask for are damages. Not much, very hard to prove, and very hard to collect. And I already forgot that friend's name or the movie title.

[GeorgeSelinsky]

We got excellent recordings from another country where the film will most likely never be shown.

Don't think that you won't be getting any phone calls. Countries have copyright protection agreements with each other and it's not unlikely that there's someone in your country that is empowered to represent the copyright owner who's work is being used without permission.

 

I really wouldn't take such a chance, even if your film isn't going to sell well. No distributor will touch your film if you don't have everything cleared, and if you lie to them then you will be held liable personally for the damages you carry (plus the errors and omissions insurance company, if they have already granted you a certificate, will not cover the legal fees if you lied to them about having everything cleared).

 

If you are self distributing then you are risking it on your own. Regardless of how much they can sue you for, do you really want to bother hiring a lawyer and going to court? That's not cheap. Nor is it going to be nice when your litigation will eat all the profit you need to pay back your investors for the film's expenses (and it will certainly sink the producer's reputation).

 

Just some food for thought.

 

- G.

[Mitch Gross]

Nothing to pay to anyone and if he ever gets caught, all they can ask for are damages.

While the odds of getting caught are very low, the damages awarded in court could easily be the ownership of the film itself plus any and all income (not just profits) generated by the film. You could have your wages garnered and your property seized. People steal material every day, but that doesn't make it legal or ethical.

[Guest Ultra Definition]

The music is not copyrighted. The composers died long time ago. The classical recordings are copyrighted in different countries. We took two different recordings of each piece, did some mixing, etc.; a good quick fix. There is no way in the world one would recognize that it is that particular recording by that particular orchestra. And as I said, if they would be torchering me, I did forget that friend's name etc. long time ago.

 

I know it's not ethical, but: This is my old buddy. We made our first short films together. We both ended up going to different schools; I studied film, he acting and television. Then one day I bumped into him in Santa Monica. He wrote a good script. It went through the Hollywood bull.... They stole couple of his ideas, basically stole the film's name... He can't get finacing. Then he enhirits quite a bit of money. Sinks it into the film. It's all done except he does not have rights to use the music. Now he becomes unsure if the film is good. He arranges private screening for me. The film is excellent. The guy is pretty much out of money at that time. So we got the music taken care of. I helped him cut the film a little differntly in couple of places. Quick and dirty. He was a little paranoid about the music, but now, couple years later is very happy.

[Mitch Gross]

The music is not copyrighted. The composers died long time ago. The classical recordings are copyrighted in different countries.

Well you can justify all you want, but if someone recorded the music, then there are both publishing rights by the music publishers and performance rights by the orchestras in question.

 

I'm not saying that this isn't done all the time by no-budget filmmakers, but this is an open forum and people should be aware of the possible consequences.

[GeorgeSelinsky]

The music is not copyrighted. The composers died long time ago. The classical recordings are copyrighted in different countries. We took two different recordings of each piece, did some mixing, etc.; a good quick fix. There is no way in the world one would recognize that it is that particular recording by that particular orchestra

Performances and recordings ARE copyrighted, even if the music is in the public domain. If I assemble an orchestra of musicians, hire them and the conductor, pay for the copying of the music, hire a hall, have them rehearsed, and hire a recordist and his team to record them for a few hours, that doesn't mean you can take my recording and stick it into your movie, and not compensate me for the time, money, and effort it took me to do all of that. Otherwise I can also say that a film about Shakespeare can be pirated because the play is in the public domain.

 

I once did play music, and believe me, if your orchestra recorded a piece of music you're going to know what it sounds like even with a different mix (after all, you don't have access to the original tracks, all you can do is EQ and alter the speed). Not everyone will get it but they can, and believe me people can and DO look for this stuff - especially hungry copyright attourneys.

 

There are, for example, so many recordings of Cappricio Italien that were ever made. They don't all sound the same by a far shot - even if they have the same audio quality they are different in the way performed. If I was a conductor or producer who recorded Capprichio, and I heard someone use Cappricio Italien in a film, I would certainly have my ears perched. If I noticed that it's awfully similar to what I did, I'd certainly stay to the end of the credits and see who is credited with that recording. If it's nobody, then I'd start searching a little deeper. If it's another orchestra that the filmmaker simply fabricated, as a person of the music business I'd pretty quickly figure out if it's baloney or not. Even as a professional I'd likely just be interested in hearing that other recording for a comparison to my work, so I'd be likely to explore further either way. After all, I am a professional.

 

Before you know it I get a video of your film and have my attourney give you a call, saying that I strongly suspect you have used my recording without authorization. If I am mistaken, my lawyer gets proof. If not, then we go to court.

 

It's that simple.

 

Of course, it's one of those "maybe" scenarios, but you'd be surprised how six degrees of separation can work sometimes. Ten, twenty years from now someone might be up on late night cable and that's that. Anyway, why take your chances?

 

Besides, who cares if they don't find you? The producer is the one who's going to get in trouble!

 

- G.

[GeorgeSelinsky]

While the odds of getting caught are very low, the damages awarded in court could easily be the ownership of the film itself plus any and all income (not just profits) generated by the film.

That sounds more like stealing story material, I doubt such a harsh judgement would be ruled in favor of most music infringements (at least I haven't heard of such precidents). But if you did a film where 50% of the soundtrack was Rolling Stones songs, which would have a net value in the millions if you legitimately licensed them, you better watch out.

 

- G.

[Mitch Gross]

The movie "Mask" had to be recut and the director took his name off because the initial cut used Bruce Springsteen music and the producers failed to get proper licencing. In the end they replaced the songs with Bob Seger tunes, which is why the director walked. "Baby, It's You" was unavailable on home video for nearly a decade because the producers failed to get all the rights to the music. In a famous decision, Peggy Lee was awarded something like $80 million (later reduced on appeal I believe) from the a single song in a Disney movie because her contract with Disney had no mention of home video distribution (there was no such thing at the time).

 

The contracts I sign every day for films and I regularly see cast and crew sign use wording such as "all uses known or unknown throughout the universe" for just this reason. I kid you not.

[Mitch Gross]

Correcting myself here. Peggy Lee had a much greater contribution to "Lady and the Tramp" than a single song.

 

http://www.peggylee.com/library/910219.html

 

 

Another example that springs to mind is from the Al PAcino film "The Devil's Advocate." A large artwork that figures predominantly in the film is essentially a copy of a famous painter's work. The production commissioned the copy but did not pay for the rights from the original artists, who successfully sued after the film came out. The film was actually recut for theatrical distribution in parts of the world where it had not yet appeared and the video version of the film is also recut.

 

Here's another one off the top of my head: FOr years "It's a Wonderful Life" had been considered a public domain property because RKO had failed to renew its copyright. That's how the film became so popular--every TV station could broadcast it endlessly each winter without paying any license fee. There was even a colorized version out there for a while. Then someone at RKO figured out that the company still held the copyright for the soundtrack to the movie, so unless stations were interested in showing the movie as a silent RKO could once again enforce its ownership. Now the film is licensed to NBC to be shown twice each year, usually at Thanksgiving and Christmas.

 

Intellectual property and artistic property rights can be a very serious thing, and in many ways the US is only just catching up to other parts of the world on the issue. But the US generally ascribes the rights to the producer (he who commissions the work) as opposed to the artist (he who performs the work). Again, in most contracts the term "Work For Hire" is noted very prominently for just this reason.

[Guest Ultra Definition]

Thanks guys. I've done it only once. The guy was rushing it and was pretty much broke. We had the same pieces recorded by different orchestras. The guy that did the mixing is a friend and is really good. By the time we finished, I think it was totally unrecognizable and untraceable. As for myself; I'm not legally responsible. Not that I didn't feel bad about it.

 

I have a question. I'm sure you've seen wedding videos and demos. How do these guys get away with including Stones, cuts from movies, etc. on a wedding video or a demo reel? Unbelievable! And illegal!