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February 14 at 10:58am

Wondering Why Music Licensing Is The Way It Is

By Ted Hope

The NYTimes has a nice article on Matt Porterfield’s truly free film PUTTY HILL. I got to moderate a discussion around the film last year after its Berlin premiere and again this year for our screening series at Goldcrest — yet the movie had a significant change during the time that passed. The Times piece touches upon it: The Rolling Stones wouldn’t even enter into discussions about licensing “Wild Horses” to Matt and his team.

Why is it if you are an artist whose art is singing other people’s songs, our culture has worked it out in the most frictionless way manageable? But if you are an artist whose art is filming artists whose art is singing other people’s songs, you have to go to herculean tasks to gain permission?  Filmmakers are required to go through a much more difficult process to practice their art in this instance.

To sing another artist’s song, you pay a royalty on record’s sold (and in countries outside the USA, even when it is performed in a public context). To film an artist performing a song, be it theirs or someone else’s, you can’t simply pay a royalty, you have to get permission. In the case of PUTTY HILL, this lead to a costly reshoot to replace The Rolling Stones. Now some may say, why film this to begin with if you don’t have permission, but what if your style is, like PUTTY HILL’s, a combination of fiction and doc, where you are trying to capture the world as it is when it is, and that includes someone singing “Wild Horses”? Shouldn’t we find a way for our culture to be inclusive and allow this to happen?

On “The Devil And Daniel Johnston” some great scenes of Daniel covering others’ compositions could not be included in the film precisely because of this reason.

Maybe someone can explain the logic behind this for the rest of us…

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  1. Brian Newman / Feb 14 at 10:58am

    I could explain the legal reasoning, but it is very boring, old fashioned and out of touch. While there remains some good arguments for moral rights – such as Bob Dylan not wanting you to just be able to film some guy singing his music (even at a karaoke bar) and use it in a Ford commercial, this could be greatly simplified. What we need is a something like a compulsory license for these and similar uses – a flat, fair fee that anyone can pay to use the music/lyrics/composition and the fee changes on the type of use and the number (and type) of listeners. Thus, Matt would pay less because it is a film with a limited release. That said, every filmmaker should know better than trying to get away with this in the current climate – one of the more common mistakes, but one talked about all the time, so no reason for it.

  2. Brian R. Godshall / Feb 14 at 10:58am

    wondering why music licensing is the way it is – Here are some thoughts.
    1. I've cleared or licensed music for many films. I soemtimes have to remind producers that their film will still be good w/out a particular song. Songs can be replaced.
    2. try to clear music in advance – don't shoot a scene if you don't know you have permission. We all know about copyright and want the filmmakers' work to be respected just like the songwriter wants his/her work respected.
    3. Sometimes a writer or publilsher will have legal reasons that the can't go into as to why they can't license a particular song; in some cases they may be working on a secret big project using the song/songs and dnot' want to license them for the time being; perhaps there is a claim from a 3rd party and they don't want to acknowledge it; Susan Boyle had a hit with WILD HORSES; last year's cast of AMERI IDOL sang R. Stones song one week; maybe they felt the song was over exposed.
    4. It's a lovely story in the NYT about Dolly granting permission for a $5K donation – sometimes these kinds of things can be worked out – but usually not after the fact – again it's always better to go in advance to clear a song
    5. think about giong to a music prod library who will work with you for a song in a similar style; also it may be an opportunity to give an unsigned band, artist, song writer or composer a shot to create a new song – that you can get for free or very cheaply
    6. According to a Harry Fox Agency press release, they and another company, Ricall, are working on stream lining msuic licensing for synch uses. It sounds like maybe there will be a standard rate for some synch uses – as opposed to compliated, ongoing negotiations. more info is to be available later this year.
    7. as was pointed out with Amazing Grace, sometimes public domain songs can work very well.
    I hate seeing filmmakers giong through such angst over this – it usually works out better if enough planning is done and a clearance person is hired for music intensive films. If it's not done this way – in this case – it looks like this film's release has worked out favorably anyway. And who knows maybe Mick Jagger will read this piece in the NY times and call his label/publisher to find out what happened.

  3. Michael Walker / Feb 14 at 10:58am

    It's frustrating, but not as frustrating as some other clearance issues. I tried to get the rights to a song for a karaoke scene a few weeks ago and they wanted 60K. I was bummed, but wtf? It's not my song.

    What really pisses me off are things like not being able to have a character pay with an American Express Card or drink a Pepsi, even though these things are so engrained in our culture that you can't turn a corner without seeing that stuff. In a film, if it's not product placed, it's not getting cleared on your clearance report. Even if there's an intended use, this doesn't seem to work out when shooting. I know, it's kind of o/t, but thought I'd vent.

  4. BradBell / Feb 14 at 10:58am

    Corporations have better lobbyists than the public does. Copyright laws reflect corporate interests: recording. Films are recordings. Filmmakers are like recording studios that want to record recordings made by companies that don't do anything but monetize recordings.

    And, as Michael Walker says, turn the world into a media playback machine that we have no control over: we can't shut off, and we can't directly reference. On the other hand, it's not likely to last. Current copyright laws are the product of very tiny, recent slice of Disney – err, history. And they are analog laws. For analog business models. Something's gotta give.

  5. nwrann / Feb 14 at 10:58am

    “Filmmakers are required to go through a much more difficult process to practice their art in this instance.”

    Filmmakers are required to go through a much more difficult process to practice their art in just about every instance.

  6. Justice Constantine / Feb 14 at 10:58am

    Just because music can be illegally downloaded for free and that music is completely accessible through means like YouTube doesn't give film makers the rights to use someone's song or music for free. As a music composer and musician, the art of music is being cheapened because people think they have the RIGHT to someone else's music. Musicians are trying to make a living just as much as any other artist and film maker.

    Just because there are huge companies like Disney or other music companies that they are seen as the “enemy”, doesn't give someone else the right to use someone else's intellectual property without the owner's consent and without compensation. Regardless if you have to get it from the composer/musician or the company representing the musician.

    If film makers want free music, feel free to make it themselves or get a friend who is willing to compose music for free.

    Flip the tables around. Imagine if some company used your film for free for a T.V. commercial with no sort of financial compensation or recognition just because it was accessible through YouTube or the internet.

    Justice Constantine

  7. Phil Moore / Feb 14 at 10:58am

    You seem to be missing the point Justice. Ted isn't advocating using music in films without paying for it. He's just saying the process should as simple as the royalty scheme that presently operates for recording artists doing covers.

    But to play devils advocate – sync rights for film & TV can be exorbitant for well-known songs. Why would the music industry give up this cash cow, especially when they are losing money in traditional areas like CD sales. Its the one area when the record companies still rule.

    I am fortunate enough to be a filmmaker who also composes music (and member of APRA). But even so getting rights to a couple of songs for an indie film can be outrageously expensive given the total budget and likely revenue.

    The answer's not as simple as a royalty scheme. But Ted's right; there has be something better than the current system.

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