Music rights for TV

Factual Questions
1

There are many Dopers who appear to be in the know on this sort of thing, so I thought I’d ask: when the makers of a TV show license a song for use in an episode, does it standard for the license to give them free reign to use the song howsoever they choose, or is that something they have to negotiate separately?

What got me to thinking about this was the episode “Home” from The X-Files. The song “Wonderful! Wonderful!” will never be the same, for me, after its use in that episode, and it got me to thinking if the rights owners for the song knew about the context of its use in that episode before they licensed it. My question is intended to be more general, though, asking if it is standard for a rights owner to know ahead of time what the context will be and (perhaps) negotiate the licensing based upon that (or even refuse to license), or if the licensee just pays the licensing fee and then could, for instance, set a graphic sex scene to a Pat Boone song or a serial killer bloodbath to Kate Smith singing “America the Beautiful.”

2

Generally, the songwriter has no say unless it’s being used for an advertisement.

2 Live Crew was allowed to use “Pretty Woman” even when sued by Acuff-Rose (the rights holder) – Supreme Court ruled in their favor. As long as the performer (or TV show) pays the licensing fee, then can do whatever they want with the song.

3

No that’s for a Mehcanical Licence (a licence to re-record the song). If you want to release a cover version or use a sample in a recording you need a Mechanical Licence. Movies and TV shows require Synchronization Licences and sometimes Performance Licences.

Mechanical Licences are compulsory for recordings, but that’s not necessarily the case for Synchronization Licences. So actually a songwriter can say “no” to the use of a song in TV or film. (He/she just can’t say no to someone making a cover version or using the music for the purpose of releasing an audio recording as the final product).

I’ve seen a bunch of Sych Licences for TV and movies who were using original compositions. The contract usually has a brief description of how the song is being used and that is largely how the price is neogtiated. (All the contracts I’ve seen have a description of the use.) For example if your song is being beformed during a rape scene, you’re going to want to be compensated big time for the unpleasant association some will have to the tune as a result.

The cost of the Synch Licence will depend also on the musical work’s market value (an unknown artist can expect to make a LOT less than, say, the Rollling Stones).

Cost also depends on the length of the chunk of song used and how the song is used, such as whether the song is just underscore (background music that the characters don’t hear, but the audience does), or if the song is being performed in the movie (if the star of the movie or someone else is singing it) or it’s got on onscreen source, like an actor turning on a jukebox or Tom Cruise turning on the stereo to dance around in his underwear.

If the music is from an existing recording, they also need to get a Perfomance Licence. Those can be expensive too which is why sometimes you hear cover versions of popular tunes in commercials: the original well-known version costs too much.

If the TV show or movie wants to release a CD that has the song, they will then need to deal with the aforementioned Mechanical Licence.

4

Oh, the other big thing that affects the price is the music budget of the show. TV shows like CSI: Miami that do those long musical montage scenes have an enormous budget compared to sitcoms, or lower budget productions.

If you’re really, really curious, I porbably have a copy of a Synch Licence around here somewhere with the names and titles blacked out (it’s really boring though).

(I used to date an entertainment lawyer and she once had me type up a template for a client who was self-publishing.)

5

Shit, shit, shit! I forgot one. Sorry about the triple post!

If a TV show, movie or commercial is using exisiting recorded material, they also need a Master Use Licence. This is for the recording itself and is a deal brokered with the owner of the recorded performance which may or may not be the songwriter.

(This also applies to the recording industry if you use samples from other songs in your song you’re supposed to have a Master Use Licence, but it can be a pain to enforce.)

Okay, now I’m late for my date!

6

Cool. As I understand it, the aforementioned version of “Wonderful! Wonderful!” is actually a cover done by a Johnny Mathis sound-alike. Keep in mind that my understanding is based on what I read in Wikipedia.

At any rate, thanks a bunch for helping to clear this up for me!

7

I’d like to point out that the negotiator of these contracts is not necessarily the composer; rights to many songs are held by other parties. I don’t know how the whole ASCAP thing works, nor what proportion of songs are controlled by artists, but I hope someone can chime in with the straight dope on that aspect of this subject.

8

This is true. Once you have a publisher, the publisher has been assigned Administration Rights and things could get messy if you are the songwriter and you try to refuse a licence. Songwriters who self-publish will always have the right of refusal, but publishers are the ones that do all the work to exploit the music catalog. Typically, they get to take 50% of what the song earns through licencing and they are not going to be happy if some whiny songwriter says “but I don’t wanna have my song in an underwear commercial!”

On the other hand, if the scene in the movie is extreme enough, even the publisher might get nervous about damaging the music’s future marketability. But most of the time, if the song is going to be used in a “memorable” way, that’s rarely a bad thing.

And… CORRECTION: (Hey, it’s been eight years since I was working as a lackey at my ex-girlfriend’s) – the film and TV people need the Synch Licence and Master Use Licence. A Performance Licence is a different animal: it’s for the commercial broadcast or performance. I think I conflated it at first with the Master Use licence, but didn’t figure that out until I was on my bike in the middle of nowhere.

ASCAP, Harry Fox, et al. are music rights organizations. They are the associations who take care of royalty payments to the songwriters (or copyright owners if the rights have been transferred) from any income derived from the composition, usually thorugh performance rights or records sales. There are accounting and reporting procedures so that when a CD is sold or when the song is played on the radio or TV (radios are supposed to submit playlists), the songwriter gets his or her share which is held in escrow by the rights association and paid… um, quarterly, I think. I don’t remember the payment schedule.

I also don’t know how the reporting procedure works for legal downloads, but I assume it’s similar to record sales.

The performing rights guys are also the ones you can get a Mechanical Licence from if you are a band doing a cover tune. Since the Mechanical Licence is compulsory (sonwriter and publisher can’t say “no”), there is a fixed rate for licencing a song. The Statutory Rate is currently 9.10 cents a song PER COPY (for songs up to five minutes long. Longer songs are more expensive). So if you sold 10,000 CDs with that one cover tune, you’d shell out $910 which would be collected as royalites by the music rights association, who would then pass it along to the songwriter/copyright owner.

For indie bands and community groups that are only doing really small pressings (making only 2,500 CDs or less) you can just get the mechanical licence online and it’s not prohibitively expensive unless you’re in a band made up of non-income generating teenagers.

Remember the Mechanical Licence is only a licence to use the music on a recordign. Once it becomes audio-visual like a movie, then it’s a different medium requiring Synch Licences and Master Use Licences. Those two are paid in full to the songwriter/publisher at the time the contracts are executed. The musicians rights associations don’t deal with those. They deal with mechanical and performance royalties.

ETA: As for how much of a song is controlled by artists, that depends on a long of long-winded negotiating in recording contracts and with your publisher, and if there is more than one composer.