Pop Quiz: Using A Live Recording In A Movie

By George Howard

Last week we posted a music publishing pop quiz. There was a hypothetical followed by 5 questions, and today we’ll reveal the answer to the third question. The hypothetical is below as a refresher, followed by the question and answer.

A Jazz artist performs her own composition in a club in the United States. In the middle of the song, the guitar player plays a solo. As part of his solo he quotes a fifteen second snippet of The Flintstones theme song.

And the question was…
3.  A movie producer desires to place thirty seconds of the live recording referenced above (including 10 seconds of the Flintstones theme) in a movie. What must be done to do this, and, when the movie is shown on TV who gets paid and by whom?

Here’s the answer:

As we discussed in the answer to question two, it’s important to consider what the person who desires to use the copyrighted material REALLY wants to do with it. I stressed in the answer to the second question that you should focus, for instance, on what the label wants to do with the copyright—in that case: reproduce and distribute it—rather than viewing it as some sort of vague quasi-legal term, such as “mechanical.”

It’s even more important to do so when you consider this question.

Most of you will immediately say that the movie producer must get a “sync” license.  You’re not wrong. However, like “mechanical,” “sync” is one of those words that people toss around the music business without really understanding what it signifies.

A “sync” – short for “synchronization” – is indeed a license that allows the producer to synchronize copyrighted music with their moving images.  However, if left at that, what would the movie producer be able to do? Not much. What does the movie producer really want? He/she wants to make money from the exploitation of his/her film.  To do that he/she not only needs to synchronize the copyrighted song with his/her moving images, but also…reproduce and distribute the copyrighted song when synced to the image.  This is how the producer will make money: reproducing and distributing the movie, and, thus, the song synchronized with the moving images.

The exclusive right to synchronize is NOT one of the rights granted by law when you create an original work, any more than the exclusive right to create mechanicals is.  However, the rights to reproduce and distribute are rights held exclusively by the copyright holder, and, in order to avoid infringement, anyone desiring to reproduce and/or distribute must negotiate a license with the rights holder.

A key difference between using music in a film—i.e. synchronizing music to a moving image—and mechanically reproducing someone’s copyrighted work on a record or download is that there is no compulsory license for synchronizations (that is, reproducing and distributing a song connected to a moving image).  Therefore, the copyright holder can refuse to grant the license to the producer, and, further, unlike there being a maximum payment ($.091 per reproduction) for a mechanical license, there is no such maximum for a synchronization—it’s whatever the market will bear.

Here, the movie producer must negotiate a sync license with both the jazz artist who wrote the song, and the publisher/writer of the Flintstones theme, which was quoted in the guitar solo.  Additionally, the producer must negotiate a “master usage” license with the label who holds the copyright to the recording of the jazz artist’s song in order to synchronize the label’s master, which they have the copyright to, and the associated rights, with their moving images.

In terms of the second part of the question above, when the movie is played on TV, and the song that has been synchronized with the image appears, it constitutes a public performance. As such, the writer of the jazz composition, and the writer of the Flintstones theme will both get paid via their PRO (for more on this see the answer to question one). An aside: in the U.S., movie theaters are exempt for paying public performance fees. Therefore, the writers are not compensated when their songs appear in the movie when it is shown in a theater.

 

Check back Monday, August 13th for the answer to question 4:

4.  The song recorded and released by the label is streamed on Spotify. Who gets paid and how?

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George Howard is the Executive Vice President of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate Professor of Management at Berklee College of Music

  • http://www.diroski.com Gemma D Lou

    Hello George

    Thanks for explaining synchronisation more fully. I had no idea what it meant in terms of artists, but for example, synchronisation is what you get when a film uses a song. Kind’a like, they’re paying royalties for its usage.

    What about the jazz singer, though? Would they need to get a license to distribute a snippet of the same said song? Like what’s been happening with youtube and their copyright infringement policy which results in live recordings from up-and-coming artists havng their accounts disabled.

    Thanks

    Gemma

  • http://www.9giantsteps.com George Howard

    Gemma,

    Thanks for the comment. Yes, the synch refers to the deal between the producer of the film/tv show/ad and the WRITER of the song (the (c) holder). The writer/(c) holder grants the producer the right to: 1. synchronize her music with the moving image, reproduce and distribute the (c) in association with the moving image.

    i’m not 100% clear what you’re asking with respect to the jazz singer – it’s her composition, and so the synch license – above – is the necessary instrument to allow for repro and distro of the song (as associated with the moving image) without their being infringement.

    A similar license would have to be struck with the owner of the (p) – i.e. the copyright to the sound recording (the master) of the song. this is typically (and in this hypo) the label. this is called a master usage license, and works the same as the synch, but is for a different copyright – the master (ie the (p).

    i’m not sure what you’re referring to with respect to youtube, unless it’s someone doing a cover of a song and putting it on youtube, and the (c) holder (ie the author) wanting it removed.

    Best,

    George