By George Howard
(Follow George on Twitter)
A tremendous amount of our focus here on the TuneCore blog centers around artists taking control of their destiny. To this end, we’ve spent a good deal of time attempting to make sure that artists know what exclusive rights they, by law, are automatically granted when they create an original work and fix it in a tangible form (record it and/or write it down). It’s from these rights, of course, that the entire music industry is built, and these rights are crucial to an artist being able to generate revenue. On a related note, we’ve stressed the importance of artists protecting these rights. This involves registering their copyrights, and thinking long and hard prior to opting out of their rights, via a Creative Commons license, or any other type of deal.
One consistent source of confusion around an artist’s rights relates directly to a main focus of many artists today: having their work used in TV or films.
Understandably, most artists are eager to have their works used in films, TV, or ads. The so-called synchronization (“sync”) of artists’ works has become sort of like the new radio; it’s how artists gain exposure, which leads to increased record, ticket, and merch sales.
Given this, it’s not surprising that it’s become very much a “buyer’s market.” That is, producers (and the music supervisors who work with them) of TV shows, ads, and movies know that there is a nearly endless supply of artists longing to have their music used in their TV shows/ads/movies. As with any market where there are more sellers than buyers, prices go down.
Typically, there are two principal ways music finds its way into a film/TV show/ad.
The first is that the producers license music from a released album. When a producer for a film/TV show/ad wants to use a song that has been released on an album, the producer must get two licenses.
The first is called a synchronization license. This is a license that the songwriter (who holds the copyright, and therefore all the exclusive rights to the song) grants to the producer that allows the producer the right to reproduce and distribute the song as part of the film/TV/ad. Remember, two of the six rights you are automatically granted when you create an original work, and fix it in a tangible medium are the right to reproduce, and the right to distribute. Therefore, absent this synch license, the producer would be infringing upon the songwriter’s exclusive rights when the work was reproduced/distributed as part of the TV show/ad/movie.
The second license that the producer must negotiate is known as the master usage license. Just as the songwriter has the exclusive right to distribute and reproduce the song, the label that released the record has these rights as well. Therefore, the producer of the ad/tv show/movie must negotiate with the label, and enter into a master usage license agreement in order to reproduce and distribute the specific version of the song that appeared on the label’s release. As above, if the producer fails to do this, he/she is infringing upon the label’s copyright.
This system works fairly well for all parties involved. The songwriter gets paid, the label gets paid, and the producer of the TV show/ad/movie gets music they want.
Of course, if you’re really smart, and are both the writer and the label (i.e. you release your own music), you get paid twice.
As an aside, the vast majority of these deals are described as “most favored nations” (MFN). That is, both the amount the producer of the ad/TV show/movie pays to the label for the master usage rights, and the amount paid to the songwriter for the synch rights, are the same dollar amount.
The second most-common way in which a song finds its way into a movie/TV show/ad is known as a work made for hire. The most common type of work made for hire is some form of interstitial or background music. It’s nearly impossible to comprehend the amount of music that is being used on the myriad channels at any given time. Flip through the dial and listen for music. Not just music played in the foreground of a scene, but the nearly constant stream of sound that underscores nearly every second of visuals on TV or in movies.
This music is often composed specifically for the visual image, or, alternatively, chosen by a producer/music supervisor from a music library.
In either case, the composer of the music typically has sold their music and its associated rights to either the producer of the movie/TV show/ad or the music library. The instrument of this transaction is a work made for hire.
Put simply, when an artist writes a piece of music and sells it as a work made for hire to a producer/music library, the artist signs over the rights to the song. In essence, the producer/music library becomes the author of the song. Typically, the person who purchases the song via this work made for hire becomes the owner of the copyright forever. Importantly, this means that even the 35-year reversion of copyright does not apply to works made for hire. These deals tend to be exclusive, and so, typically, the writer can’t, for instance, sell the song to some other producer, nor can the writer release the song him/herself.
In exchange for foregoing these rights, the composer gets paid a fee. These fees vary widely, but, again, remember it’s a buyer’s market, and so the fees will likely be less than you want.
There is one very important exception with respect to the rights assigned to the buyer of the work for hire, and this exception alone may be reason enough for authors to consider entering into these types of agreements.
The one exception to this assignment of rights from the writer to the producer of the TV show/ad/movie is that the writer will typically retain the writer’s share of the public performance income.
This is crazy important.
What it means is that even while the writer who has assigned his work to a producer, via a work made for hire agreement, the writer will still get paid when the work is broadcast on TV or the internet, via receiving the writer’s share of the public performance income, which is paid directly from the writer’s PRO (ASCAP or BMI) to the writer (bypassing any publisher, etc.).
The significance of this is that while the fees for these work made for hire agreements continue to go down (remember, buyer’s market) the opportunity for usage keeps going up. With every new cable network that airs movies, or every streaming video site, come additional public performance royalties, and thus revenue for the writer (via the writer’s share of the public performance fees).
Either of the above types of deals — synchs or works made for hire — may be tremendously beneficial for the artist. However, only through thorough understanding can an artist determine which (if either) makes sense for them. For instance, while it may seem that a synch deal would be preferable to a work made for hire, consider the following choices:
Choice 1: A not-very-popular show on a small cable network is willing to license (both the song and the master) from you for a fee. Importantly, you get to maintain the copyrights to both the song and the master. They are willing to pay $2000 per side (i.e. $2000 for the song and $2000 for the master).
Choice 2: A popular network TV show that is likely heading towards syndication wants you to compose thirty seconds of music for them as a work made for hire. They are willing to pay you $300 for these thirty seconds. You would give up all rights to the song except for the writer’s share of the public performance royalty.
If it were me, I’d quickly take Choice 2. The revenue from the writer’s share of the public performance fee should, over time, far outstrip what you would’ve been paid via Choice 1.
The point of all this is that, again, as always it’s imperative for artists to know what rights they have. From this knowledge, a strategy can be devised to help determine what (if any) rights you are willing to forego, and, importantly, at what cost.
George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is an Associate Professor of Music Business/Management at Berklee. He is most easily found on Twitter at: twitter.com/gah650