A good publisher might successfully exploit their copyrights with regard to placement in motion pictures, television, and video games. Music in films, commercials, and television programs are referred to as “synchronization licenses” which are granted by copyright ownership due to the work being used in conjunction with the motion pictures. “In the television and film business, music is reproduced when it is recorded on the soundtrack of a production. The industry has come to refer to the right to do this as a synchronization right, because the music is being reproduced on the soundtrack in synchronization with the pictures.” [1]
Everyone expects to hear music during a dramatic movie clip or through a fast paced car chase video game, and a big part of a music publisher’s job is to get that music licensed to be on screen. To a publisher, broadcast networks for television, online streaming and video games represent not only a prime income source through licensing royalties and buyouts, but a marketing vehicle for national exposure leading to mainstream programming and big time customers/licensors.
Getting this type of exploitation really depends on marketing the music for specific uses. A good publisher must understand the phases of production for each type of use to know how to sell the copyrights they represent. For example, when a new blockbuster film is complete and finished shooting, there might be a music editor, a composer and a director whose job it is to watch the silent movie and take notes on what music should go where in the film. This is called “spotting”. A good music publisher should be familiar with upcoming film productions , must have connections with those working on the production, and must be able to come up with a good musical match for the movie at the time that the production team is spotting the film. This is true for the production of online broadcasts and video games as well; and that is why many amateur songwriters assign their copyright privileges to big publishers.
On the other hand, placement of music in a project is always a case-by-case basis. If a particular rock group’s hit song or famous composer’s score is in the running to be chosen for the production, it may be based on the artist’s popularity that the song is used. That means that the publishers success is heavily dependent on the success of it writers as well.
So how do these deals go down? Once again the music business is case-by-case and also involves a lot of “who you know; ” but if a big studio producer picks a song for a blockbuster movie; the publisher that administers that song really has one job- simply to negotiate one lump-sum payment.
The big movie studios do not want to pay royalties and keep track of the millions of theatres playing the song over and over; so they will usually negotiate one license that will give the studio perpetual, exclusive rights to play the movie all over the world- or even buy the rights completely. Video game studios work much in the same way. The game might sell millions of copies, but they don’t have the type of staff to continually renew their licenses and terms; so they offer a big chunk of change all at once to make the deal faster and easier (recent games that use a great deal of popular music such as Guitar Hero might have a different agreement altogether).
This type of license, extremely common in films and other audio-visual productions is called a “work made for hire.” Donald Passman explains works made for hire using Disney’s Snow White: “In this situation, Walt Disney Pictures (the corporation) becomes the author of the work, and the person hired to write it disappears. Does this mean the writer won’t get his or her name listed as the writer of the song (e.g., on the sheet music, in the film etc.)? Usually not: the real creator customarily gets credit. (But sometimes for example, with jingles written for radio and television commercials, a creator doesn’t.)”[2] What Mr. Passman means is that the studios like Disney buy the rights to a song from the writer, and can from then on has the privileges of copyright ownership for that song as if the studio was the author of the work.
A studio will pay a publisher anywhere from fifty bucks to hundreds of thousands of dollars to a publisher depending on the song, the type of use the song is being used, and the budget for the production. A song being used as un-important background music will cost less than if the song is the main focus of the scene or the main tile headlining the end credits (the fees for use on theatrical films can be much higher than television uses as well). Many publishers of signed artists might also be forced to issue “gratis” synchronization licenses free of charge depending on the contents of an Artist’s record contract. These types of negotiations are vital to a publisher’s income and provide endless work for entertainment lawyers, paralegals, and licensing administrators.
So what do publishers actually get paid? Here is a list of possible prices paid for synchronization licenses based on Passman’s All You Need To Know About the Music Business:
Major Motion Picture: $15,000 – 150,000+ depending on placement and usually a buy out of all copyrights for perpetuity.
Independent Film: $2,500 - $5000 and another similar payment for home video release with a “step deal” and a “kicker” meaning another payment if the movie is a smash success.
Cable television: 2,500 – 7,500 depending on the length of term
Home Video: $6,500 – $8,500 after being released on theaters
Television Theme Songs – $4,000 – $10,000 per episode (unless it’s a buyout).
Commmercials – well known song: $ 150,000 - $350,000 for 1 year national usage a local or small business commercial may pay $50 – $4,000
As we have seen from this list, not all synchronization rights are “works made for hire.” “Unlike performance royalties, which the performing rights organizations traditionally collect from broadcasters on a blanket basis, synchronization rights are a matter of individual negotiation for each composition used”[3] This means that a composer an publisher can receive royalties for synchronization licenses, however the rate per song is always negotiable (unlike mechanical licenses), so a good publisher must know how much to “quote” and what the terms of their license should be. This is very important because middle-man companies like Harry Fox Agency no longer collect or negotiate synchronization licenses, although some network television station’s sync royalties can be collected by ASCAP or BMI under the right agreement.
Another important concept to consider is the territory that a song is being licensed. Many television and film licensing firms work directly with the publishers for licenses in which the territory covered is the WORLD: “Since synchronization apply worldwide, the joint administration agreement must provide for an allocation of the synchronization fee between the United States and elsewhere when the co-ownership involves only U.S. rights.” This quote is referring to sync rights when used for film and television and not for synchronization on home video or DVD type product released by a record label. Many labels like Universal Music Group have separate licensing firms to license such products for distribution in different territories. This makes it difficult for a licensor to verify who the publisher is; (which is why a good publisher should post the contents and details of their catalog to help them get paid faster) but can be used as a bargaining tool for getting the rights.
Many inexperienced band managers of groups who attempt administration of their own publishing can’t wait to jump in and start negotiating the next big paycheck! However what many don’t realize is that the budget for music is usually last on the giant list of expenses that a film studio must pay. Many companies have made their entire businesses making music to sell cheaply and quickly to film producers. These businesses are called “music libraries” or “production music” resources.
Music libraries like Killer Tracks and Master Source are both providers for inexpensive music for film, television, video games, advertisements and interactive media. Both started in the late 1980’s by musicians, composers and producers who recognized the growing demand for background music clips in movies. The clips are usually categorized into several musical emotions, genres, sound effects, and whatever may be suitable in any situation for all types of uses. Each library releases hundreds of CD’s from their catalog each year in hopes of licensing the music to large movie studios or mainstream advertisements and usually license un-exclusively to any studio no matter how big (which is why Universal Music Group has purchased both Killer Tracks and Master Source in the last ten years)
Unlike most popular music publishers, production music companies typically own all of their own copyrights and hire “in-house” writers to produce “work for hire” pieces of music. In the U.S., every music library can determine their own license fees and method of payment, while UK sync royalties may be linked to a statutory rate. Many U.S. online based music companies claim to being “royalty-free,” because they license music to consumers by subscription on a monthly basis (works made for hire), but the method of payment is really all over the board due to a wash of internet outlets in the market. Some of the successful companies can distribute sounds and clips to Microsoft for music editing programs such as Garage Band, while others may be purchased by Nickelodeon for use in television cartoons. Since publishers of production companies usually represent multiple genres, they should be advertising to not only video game companies, motion picture studios, or radio stations, but also to small-time businesses, telephone networks, greeting card manufacturers, multimedia websites and music software companies.
It seems that the name of the game for production music as well as all music copyright business is finding the most outlets as possible for the music and drawing an audience for the product. A good music publisher must be able to not only gain business by providing the product and attracting the buyers, but also knowing how to administer the rights to get the most out of each and every copyright licensed.
