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Music licensing is the process of obtaining the rights that will you need in order to incorporate music into your work. Music licensing is a huge business for music copyright owners, and thus they are very protective of their intellectual property. Whenever you are using music in your production, you must think very carefully about a number of issues. Music licensing can be complicated because there are many technical terms and it is not intuitive. The first thing you must know about music licensing is that there are two components to every piece of music: the composition and the sound recording. The composition is the music sheet that you read (bar notes and/or lyrics). The sound recording is the musical reproduction of the composition that you hear. Below is a discussion of the distinction between compositions and sound recordings, and other topics you should have in mind when considering music.
Compositions & Sound Recordings
It is essential to understand the distinction between compositions and sound recordings. So, to repeat, a composition is the music sheet that you read, while the sound recording is the musical reproduction of the composition that you hear. When incorporating music into your work, you may need to license either the composition or the sound recording, or both, depending on the circumstances. Let’s run through some examples of music you might want to use:
Modern Songs – Most songs you hear today are original and were made within the last 100 years or so, which means that both the composition and the sound recording are going to be copyrighted (generally, assume that the composition and sound recording for any song you want to use are copyrighted to avoid surprises). To use one of these songs in your work, you will have to license both the composition and the sound recording.
Classical Music – For the most part, the classics like Beethoven and Mozart are old enough that the compositions are in the public domain (but always check – the works of many 20th century classical composers are still under copyright). A work is in the public domain when copyright laws do not apply to it, normally because the term has expired. The good news here is that because the compositions are public domain, you do not have to license them. However, this does not mean that you can pick up the LA Philharmonic’s recorded rendition of Beethoven and include it in your work. You will have to license the LA Philharmonic’s sound recording of Beethoven since that sound recording is separately copyrighted.
Cover Songs (by you or someone else) – Cover songs are a good way to avoid the expense and hassle of licensing a sound recording of a song by a popular band. Let’s assume you are a musician and you think that a slow, acoustic cover of a hit pop song would be perfect for your production. You will need to license the composition, but you do not have to license a sound recording because you will be making your own, which you will want to protect – see see Basics of Copyright Protection/ On the other hand, you can license the composition and also license the cover sound recording from someone else for likely much less than the original performing band.
Original Music (by you or someone else) – Original music can do two things: save you the costs of licensing, and give your production a bump since you will have music that no one else does. If you write and perform your own music, you will not have to license the composition or sound recording (but you still want to protect it (see Basics of Copyright Protection)). If you hire someone else to write the music and/or record the sound recording, you will want to make sure that you have hired that person on a “work made for hire” basis. “Work made for hire” is a copyright term, which means that even though someone else is doing the work, you will ultimately be the copyright owner of the work. Remember that you want to commission both the composition and sound recording as works made for hire.
Music licensing is complicated because you have to balance the composition and sound recording. So, as long as you can remember that music licensing involves both elements, you will avoid major surprises.
How to License Compositions & Sound Recordings
You now know that you may need to license a composition and sound recording. Where do you go to get these licenses? To license a composition, you need to contact the music publisher. To find the music publisher, search the repertoires of the three large performing rights societies: ASCAP (https://www.ascap.com/repertory), BMI (https://www.bmi.com/search), and SESAC (https://www.sesac.com/repertory/terms.aspx). (There is no single “shortcut” to finding the music publisher; the easiest method is to search the online repertories of the three large performing rights societies.) These societies license certain music rights, such as public performance rights, but they do not license other rights, such as synchronization rights (see below for more on what these rights are). Although they may not be able to help you with the specific rights that you need, they will have the contact information for the music publisher.
To license a sound recording, you need to contact the label. Remember, the sound recording needs to be licensed separately from the music composition itself. The label information is much more readily available than the publisher, and should be on the packaging of the physical product or online.
What Rights to License
You now know what you need and whom to contact. What are the specific rights that you should license? The rights you require will depend on how you plan to use the composition or sound recording. There are a number of technical terms, which will be discussed below, but you should always consider three crucial terms: Media, Term, and Territory. Media refers to the specific forms of media for which the music is licensed, such as theatrical, home video, or internet streaming. Term refers to how long the music is licensed. Territory refers to the geographic area(s) in which the licensed music can be used. The best of all three is “all media, worldwide, in perpetuity”: this means that there are few to no restrictions on your use of the music.
Be careful about skimping in acquiring rights, especially in today’s industry where content can be distributed in a wide range of media. For example, you may notice that sometimes a home video release of a TV show or movie has different music than the original release – or that the streaming version sounds different from the original. This is because the music rights were not originally licensed for home video or internet streaming. While this issue does not make a huge impact on the content, it is still always preferable to have your content retain its original form.
Here are some helpful terms and considerations when licensing music:
Public Performance Right: This is the right to perform, transmit, communicate, or in any other way distribute the music to the public, such as over the radio. Typically, the performing rights societies (ASCAP, BMI and SESAC) provide a blanket license for this right. This is why a radio station does not have to stop and license each song it plays. Note that a blanket license will not cover audio-visual works. For that, you need synchronization rights.
Synchronization Rights: If you are producing audio-visual content, this is what you need. Called “synch” rights for short, these are the rights that allow you to place the music with audio-visual footage, such as a music video. You should typically look for two parts: a “synch” license for the composition and a “master use” license for the sound recording.
Adaptation Right: This right permits you to alter the music, such as slowing it down, speeding it up, and cutting it to fit the scene in your work.
Advertising the Song or Artist: You need to negotiate for the right to use the name of the artist and song in advertising, such as using the hook, “Featuring music by XX.” Simply licensing the music does not give you this right.
In Context & Out of Context Rights: These are the rights to use the music in advertising, such as in trailers. “In Context” means that the music being used in your ad must be used with the exact audio-visual material that the music is used within the work. This could be difficult if you are cutting a trailer since the music will be cut up. “Out of Context” means that the music being used in your ad can be apart from the exact audio-visual material that the music is used with in the work. This solves the problem of cutting trailers with In Context music. With Out of Context rights, you will be able to use the music differently than it is in the work.
Most Favored Nations: Called “MFN” for short, this is an old contract phrase. If a contract has an MFN clause, it means that if you agree to better terms with another party for something similar, you have to go back and give the first party the better terms. This often comes up when negotiating with the publisher for the composition and the label for the sound recording. For example, assume you agreed to pay the publisher $1,000 with an MFN for the composition. You then agree to pay the label $2,000 for the sound recording of that composition. Due to the MFN with the publisher, you will have to go back to the publisher and pay them an additional $1,000.
Consequences: As previously stated, music licensing is a big business. As such, it is continually policed and enforced. If you don’t follow proper licensing procedures, you will be found out and the situation will be much, much worse. Remember that the rights are negotiable; meaning that once you are found out, the publishers and labels can demand a much heavier sum because they have all of the leverage. Suing for damages is hardly favorable to anyone, but it is an effective threat. They can also ask a court for an injunction, which is a legal order preventing you from distributing your work with the music. If you cannot come to terms with the music copyright holders, you will have to change the music, but note that simply changing the music will not relieve you of liability for damages.
Free/Cheap Sources: Again, music licensing is a big business. Licensing costs can quickly add up. There is a wide range of free and cheap music sites, but read the licenses very, very carefully. Ask an attorney to review the license terms to see if the terms cover your proposed use.