Know how to clear music? No, but if you hum a few bars…

Your movie is at fine cut. Congratulations. You’re almost ready for post-audio and you’ve found the perfect piece of music, a cut from your favorite CD.

But when you look at the money you’ve got left, you scream like a girl. Your total music budget is five figures, if you count what’s to the right of the decimal point. What can you do?

The smartest move you can make when it comes to negotiating the rights to music is to speak with your entertainment attorney. While I’m a big believer in the DIY-style of making movies, I’m not a lawyer. Even I hesitate when it comes to music clearances and contracts. I call my attorney, Neil Sussman of Seattle.

You have the right to an attorney

Before you call your lawyer, determine if you’ll use the music many times through the piece or just once, and where it falls in the movie. If the music is rolling at the head, it may be construed as a theme song, which costs more. If the music is incidental, as if coming from a jukebox, it may cost less. If you’re not using the whole song, be sure to mention that in your negotiations—you can save yourself some money. If you want to use the piece repeatedly throughout your show, that’ll probably cost more.

Your lawyer will help you figure out your negotiating terms, such as exclusive versus nonexclusive rights, territories, fee schedules, most favored nations status, and so on. With the changes in markets and outlets, your attorney may suggest that you get a broad grant of rights to cover all markets and any media, including those of the future, as well as the right to incidental use of a song in advertising, trailers, and other promo materials. You’ll probably also want the license to be perpetual, especially for a feature.

Keep asking your lawyer questions until you understand the issues.

Sync and Master

Your lawyer will also tell you that there are two items you need in order to legally use a song and recording in your movie: the Synchronization or Sync License and the Master Recording License.

A Sync License pertains to the song itself and is the written authorization to synchronize the recorded version of a song with visual images such movies, TV, videos, websites, and so on. Sync Rights are usually, though not always, controlled by the music publisher. A Master Recording License pertains to the recording of a performance itself. Master Use Rights are usually, but not always, controlled by the record label.

You need to find out if the Sync and Master Recording licenses are available for the song you want to use. The first step is to find out who controls the licensing.

The CD, album, cassette or packaging lists a performance rights organization for the song you want. It will probably be the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or the Society of European Stage Authors and Composers (SESAC). The performance rights organizations don’t control these rights, but they can tell you who does.

For works in the ASCAP repertory, see ASCAP Clearance Express (ACE) or call the Clearance Desk at (212) 621-6160.

You can search the BMI HyperRepertoire Internet Song Title Database. You can also call (310) 659-9109 and ask for the Research Department.

The SESAC Repertory On-Line (SRO) contains a listing of the SESAC repertory. You can also call (800) 826-9996.

When you call ASCAP, BMI or SESAC, ask for the names, addresses, and phone numbers of the parties controlling the Sync Rights and the Master Use Rights for the song you need.

Since some copyrights are held by multiple entities, dealing with one agency can be a great timesaver for you and the publishers. The Harry Fox Agency, which represents most of the major U.S. publishers, grants Master Recording and Sync Licenses and collects the fees for them. If the song you want is handled by HFA, that’s who you need to speak to. You can call HFA at (212) 370-5330 and asking for the Theatrics Department.

Sync it up

Call the organization controlling the Sync Rights. Ask to speak with someone in Rights, Permissions, or Licensing—each organization has a different name for this department. Write down that person’s name. Ask whether the organization controls the Sync Rights and if the Sync License is available. If the answer is yes, you’re officially negotiating.

Since there are no set fees or standard practices for Sync Licenses, you can make obscurity and poverty work for you. Tell the publisher’s rep that you’re an independent producer with an independent flick at fine cut. They’ll know immediately that you don’t have any money. But that doesn’t mean they’ll just hang up on you—as everyone in the music business knows, your offer may be the only one for that song in the lifetime of the contract.

This bears repeating: your offer may be the only one for that song in the lifetime of the contract. Don’t forget that.

Be ready to tell them your music budget and offer to send them a dub of the fine cut. I’ve found that the smaller labels usually want one. The people at the megalith multinationals can’t be bothered, but in the past, they liked it when I offered because it showed that I had the chutzpah to make a movie for less money than the cookie budget on a typical Hollywood production.

Ask how much the publisher wants for the Sync License. I had one publisher demand three times the entire budget for my feature for three obscure songs by a friend’s band. Crazy. Say thank you, tell them you’ll call back after you have spoken with your lawyer and counted your pennies, and GET OFF THE PHONE.

Repeat this process for every song you need to clear.

Now, spend a couple days getting over the shock and decide, realistically, what you can afford and what you’ll accept. You’re a creative person. Use negotiating tools other than cold hard cash: featuring the band or artist on your marketing collateral, setting up a concert for the world premiere, getting the band’s name tattooed on your forehead (not that I’m recommending this), and so on.

Once you know what you’re willing to accept, call them back. Don’t drink too much coffee beforehand because perkiness is irritating. Plus, there’s nothing worse than desperately needing to use the bathroom in the middle of a delicate negotiation.

Make your counteroffer.

Listen to them sputter for a minute. It will happen, because it’s that person’s job to sputter. Be ready with all of the reasons they should agree to your price: prestige of the song in an independent flick, it’s such a great fit, your movie will be shown in festivals around the world, whatever. Appeal to the individual’s desire to do something cool. Help them say yes.

Don’t be afraid to politely walk away from an agreement that doesn’t fit your needs or your budget. Just keep it friendly. They might call you back tomorrow to accept your offer because you handled yourself really well. Stranger things have happened. And before accepting anything, remember that one of the best things you can say in any negotiation is, “Well, I have to talk to my lawyer about that.”

Even if you get your Sync License for less than you budgeted, don’t start jumping around on the furniture in glee yet. You still need the Master Recording License.

Yes, master

Now, call the company that controls the Master Use Rights. The problem with Master Recording Licenses is getting them at an affordable price, especially if the recording artist is famous. The record label will argue that the artist is more famous and recognizable than the song (which might be true), and since that’s where the value is, that’s what you’ll pay for.

This is one of the reasons you hear hit songs re-recorded by someone obscure. A producer gets the Sync License, but the Master Recording License is outrageously expensive. So she hires a band to record the song. If you go this route, just be careful about soundalikes. You could be open to charges of voice appropriation claims such as those from Bette Midler v. Ford Motor Company, a case the recording artist won. And make sure you have a written contract with the band you hired that states you own all the rights to the recording.

When you call the record label, put to use all those skills you acquired getting your show to this point: charm, guts, and an insane level of optimism. Again, your lack of budget can work to your advantage. One record label exec I negotiated with decided to sign away the Sync and Master Recording Licenses to four songs for a token $1.00 each; he figured the production values of my feature were so low, there was no way I’d sell the movie.

Of course, after I hung up the phone, I felt equal parts joy and fury. I had gotten what I wanted by letting someone’s prejudices work in my favor at the expense of one dollar and a slap to my ego. He got his comeuppance—my feature, Amazing World, was sold to Northern Arts/Naiad eight months later.

If the label isn’t budging, use any pull you have with the band, artist or producer. If they’re unhappy, it’s in the label’s interest to make them happy, so the label may acquiesce now for profits later.

And remember: wear comfortable shoes in case you have to walk away.

The devil’s in the details

When you get the contracts from the music publisher and record label, have your entertainment attorney read through and explain every word on every piece of paper. Do not skip this step. Do not ask your Uncle George the litigator or your neighbor Louise who works in tax law to look at these contracts. Get somebody who knows his or her way around the entertainment minefield. One whiff of potential litigation will scare away a distributor, justified or not. “Is everything cleared?” is one of the first questions out of distributor’s mouth.

All of your deliverables, such as payment, music cue sheets, one or more copies of the movie, and so on, will be listed in the contract. Follow through on them conscientiously.

Plan B

If all this seizes you with terror, you have a telephone phobia, or you don’t have the time, there is an easier, faster and more expensive way. Pay a rights-clearance service to handle clearing the music. I’ve heard there are several who do excellent work. I’ve never done it: 1) I couldn’t afford it; and 2) I didn’t want to pass up a chance to further my education.

Think of it this way: someday you’ll be on the receiving end of an offer. Since you’ve learned the basics about intellectual property rights, you can spin sales to your benefit, protect your interests, properly negotiate a deal, and protect your working short, you’ll be a better producer.

And as an extra bonus, all those frantic calls to your lawyer will have forced you to learn how to program the speed dial on your cell phone.

Sidebar 1: If It Plays, You Pays

In general, any commercial use of a copyrighted work requires permission from the copyright owner. There is no special number of “free” notes that can be used in a show without written permission. Anyone who tells you otherwise is just plain wrong.

Fair use is determined by four standards: the purpose and character of the use of the material; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Lawyers have spilled a lot of ink and have punched their own hole in the ozone layer arguing about the meaning of fair use. Unless you’re an expert in these matters, don’t automatically assume your work qualifies. Fair use is the exception, not the rule, regarding copyright protection and permissions. An attorney can help you figure out whether your use qualifies.

Reproduction of Copyrighted Works by Educators and Librarians from the U.S. Copyright Office gives an excellent overview of Fair Use policies.

Sidebar 2: Mastering the Public Domain

That a song is freely available on the Internet does not guarantee that it is in the public domain. That a song is given away for nothing doesn’t guarantee that it is in the public domain. That you can’t find a copyright notice doesn’t guarantee that a song is in the public domain. The upshot is that even if you find material that is freely available at no cost and contains no copyright notice, don’t assume it is in the public domain.

You must conduct a copyright search. Start with a visit to the U.S. Copyright Office online at http://www.loc.gov/copyright or at the Library of Congress, James Madison Memorial Building, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000. For information on searching records from 1790 through 1978, see How to Investigate the Copyright Status of a Work (Circular 22) and The Copyright Card Catalog and the Online Files of the Copyright Office (Circular 23).

While public domain status may apply to a song or composition, it may not apply to the recorded performance. For instance, Bach’s “English Suite Number 1 in A Major” may be in the public domain, but Murray Perahia’s recording is not. You still need to negotiate for the Master Recording License to that recorded performance. Since Murray Pariah is a great pianist with a worldwide following, you should prepare yourself for sticker shock.

Even if your copyright search is very thorough, the results may not be conclusive. Consult with a copyright attorney before reaching any conclusions regarding the copyright status of a work.

Assistance with the preparation of this article was provided by entertainment attorney Neil Sussman. He can be reached at (206) 363-8070 or neilsussman@mindspring.com.