By George Howard
(follow George on Twitter)
Last week, I walked everyone through the admittedly, fairly complex process of how sampling works. The bad news is that, yes, it was a long, complex article (even though I tried to keep it as short and clear as possible). The good news is that, if you were able to make it through the sampling article with a decent understanding of the process, you will find this walk through on synchronizations fairly easy to understand.
First, a bit of level setting. When people talk about synchronizations (or “syncs” for short) it’s shorthand for “synchronizing music with a visual image”; typically, this means placing a song in a movie, TV show, or ad.
As the industry has evolved, so has the artist’s POV with respect to synchronizations. There was a time when sync—particularly those related to having music used in ads—were, at best scoffed at, and at worst harshly criticized as selling out; Neil Young, an artist who doesn’t allow his music to be used in ads, wrote a song that articulates this viewpoint: “The Note’s For You.” That time is gone. Today, the use of an artist’s music in film/TV/Ads has, in some ways, become the new radio. That is, many artists feel (with some justification) that the best way to reach a wide audience is no longer via historic methods—press, radio, or even touring—but rather through having their music synchronized. Of course, in addition to the exposure a sync might bring, there is frequently a revenue component that makes them appealing to artists who, increasingly, find revenue elusive.
Given the above—potential exposure/revenue—it’s understandable why so many artists are deeply interested in this topic. Sadly, as with so much in the industry, most artists don’t understand how the process works. My hope is that this walk-through will shed some light on the subject.
Before I get to the mechanics, let me briefly address the question that is on most artists’ minds: how do I get my music synchronized? The answer is not: write some great songs, and hope some music supervisor/ad agency hears them. Rather, the answer is that success in sync, like success in every other element of the music business, is contingent upon MOTION. By this I mean, you have to create energy around your music. First, create energy in terms of people responding favorably to your songs. For more on this see my recent video interview with John Strohm, attorney for, among others, Civil Wars and Bon Iver. Until people begin getting energized about your songs at live shows in your area, nothing is likely to happen. Once they do, the forward motion begins. From a great live show comes opportunity and connections. Examples are things like: more exposure from gigs outside of town/opening slots for more established artists; local radio play/on air performances; traditional media exposure; social media growth, and so on. From this type of motion comes interest from people who can drive more forward motion. This could be booking agents, lawyers, managers, etc. As the motion continues, you might get a gig in LA, and, because of this, a station like KCRW in Santa Monica might play your music on air, and because of this, one of the many people in the entertainment industry who listens to KCRW—music supervisors, film directors, etc.—might hear your song, check out your live show, and decide that your music would be perfect in her next film. Again, motion is the secret.
Once you’ve established that motion, and someone is interested in using your music in a TV show, ad, or film, there is a set of rights that must be confronted. Happily, for those who worked their way through the sampling article, many of these rights will be familiar.
First, as you recall from that article, there are two copyrights related to the song that the music supervisor wants to use. The first copyright is for the composition (the music and lyrics) itself. This copyright typically is controlled by the songwriter and/or the songwriter’s publisher. It is represented by this symbol: (c). The second copyright is for the sound recording. That is, the version of the song that was recorded and released as a recording (download, CD, etc.); often referred to as the “master recording.” This copyright is typically controlled by the label the artist is signed to. If the songwriter released the song himself, obviously, he would control this copyright as well, as he is acting as label. This copyright in sound recording is represented by this symbol: (p).
For both the (c) and the (p), the holders of these copyrights have certain exclusive rights. Two of the rights that are relevant to synchronization are the rights to reproduce and distribute. Clearly, the music supervisor must have permission to reproduce and distribute the copyrighted work in order for the movie/TV show/ad to have any impact. Therefore, some type of deal must be struck with the copyright holder(s) to avoid infringement on their exclusive rights.
In fact, two deals must be struck.
The first is a deal between the producer of the TV show/ad/movie and the songwriter (the (c) holder) for the right to connect (synchronize) the composition with the images in their TV show/ad/movie, and to reproduce and distribute this composition as part of the TV show/ad/movie. This is called a synchronization license.
The second is a deal between the producer of the TV show/ad/movie and the copyright holder of the sound recording (the (p) holder) for the right to connect (synchronize) the master with the images in their TV show/ad/movie, and to reproduce and distribute this master as part of the TV show/ad/movie. This is called a master usage license.
Both of these deals are typically brokered by a music supervisor. This person goes to both the songwriter (c) holder, and master holder (p), and attempts to make a deal. Nearly always, the deal offered to the songwriter is exactly the same, in terms of the amount of money offered and all other additional terms, to that offered the master holder. In industry parlance, this is called an MFN (an abbreviation for “Most Favored Nations”) deal.
Either party can say no, or attempt to negotiate more favorable terms, but, because these deals are MFN, if one party, the (c) holder, for instance, is able to negotiate a better deal, this improved deal will be in effect for the other party, the (p) holder, in this case.
If the holder of the copyright to the composition (the (c) holder) denies the use (says “no”), the deal is off; whether the master holder wants to deal the or not. In this way, the holder of the copyright to the composition is the dispositive party. If, on the other hand, the holder of the copyright agrees to the deal, but the holder of the copyright to the sound recording (the master holder), says “no,” it doesn’t necessarily kill the deal. The producer of the movie may, at this point, elect to re-record a different version of the song, and, in so doing, bypass the master holder altogether. Also important, is that if the song (composition) has multiple copyright owners, all must agree or the license does not happen. So for example, if John Lennon’s Publisher agrees to the license but Paul McCartney’s does not, there’s no deal.
Of course, in my opinion, the best possible scenario is when the songwriter is also the label. In this way, the holder of the copyright to the composition is also the holder of the copyright to the sound recording, and, as such, can not only approve both sides (i.e. the (c) and the (p)), but also gets paid twice.
The amount of these payments are all over the map, and are completely market driven. I will say that as the mentality toward usage of songs in movies/TV shows/ads has gone from something that artists frowned upon to something that they are (overly) eager to be a part of, it has become a buyer’s market. As such, the fees for usages have come way down. Of course, if you are a successful, well-known artist you will be able to command higher fees than less-established artists, but, generally, across the board, the fees are down. Of course, the type of usage will play a factor in the fee. A song used during the title sequence of a movie from a major studio will command a much higher fee than will five seconds of a song used as background on a TV show that airs on cable.
The deals between the producer of the TV show/movie/ad and the master and composition holder(s) will also entail details of precisely what the producers of the TV show/movie/ad can or cannot do. For instance, nowadays, when rights holders sign off to have their music used in a TV show, terms related to DVD sales and rentals of the show, and how (if at all) they affect the rights holders to the song, will be addressed. As you can imagine, these are fairly complicated deals, and you should engage an attorney to help you navigate them.
One important point to bear in mind with respect to usages of music in TV shows/ads/movies is that, for the holder of the copyright in the composition (the (c)) once that TV show/ad/movie is broadcast, it generates a public performance royalty for the (c) holder. The right of public performance is another exclusive right conferred on copyright holders of compositions, and thus, when the song—as part of the movie/TV show/ad—is publicly performed (e.g. shown on TV) the copyright holder of the composition (the (c) holder) is due his/her public performance royalty. This process is handled by the composition holder’s performance rights organization (ASCAP, BMI, or SESAC), who issue licenses to the broadcasters on behalf of their affiliated writers, licenses that grant these broadcasters the right to publicly perform the copyrighted works of the copyright holder(s) of the composition (the songwriters or publishers). Please note, there is no right conferred (nor, in the U.S. is there a neighboring right conferred) on the copyright holder of the sound recording (the (p) holder). For more on this subject, please see my article on neighboring rights. An additional anomaly in the U.S. is that movie theaters are exempt from needing a public performance license, and, thus, holders of copyright to the composition receive no compensation for public performance of their copyrighted works when a movie containing their song is shown in a movie theater.
As stated, synchronizations are big business and in high demand these days from artists. Having your music used in a movie can be a windfall—both in terms of revenue and awareness-building. However, it is also a topic rife with fairly complex rights issues, and potential pitfalls. The way to understand it, and the way I’ve laid it out, is the same way you should approach all issues in the music business: determine what rights you have (begin with knowing your 6 Legal Rights, and then determine which rights of yours the person who desires to use your music must make a deal with you for in order to not infringe upon your rights. Viewed in this manner, the complex becomes manageable.
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