Music Part 2: Why is a “Festival License” for Music a Trap for the Unwary?

POSTED ON February 6, 2018 / IN Documentary Toolkit

BY:

Steven Beer

This Q&A was originally published in the Summer 2017 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.

The right music cue can heighten the power of a scene particularly when a current pop song or iconic oldie is loaded with emotion associations.  For this reason, it’s not unusual for a filmmaker to fall in love with a sequence that’s been edited to that kind of accompaniment — at least until budgetary realities intrude.

Given the expense of licensing an iconic or popular song for a film (particularly for a low-budget film), a common shortcut is to obtain permission restricted to festival screenings. Record labels and music publishers will often grant festival rights for a budget-friendly flat fee.   But this option should be considered strategically. There are several reasons why a festival license can be a trap for the unwary.

For many filmmakers, a top-tier festival screening serves as a marketing platform to showcase a film to distributors. Filmmakers hope that distributors will want to acquire the film after attending a celebrated festival screening before an appreciative audience. Prior to making an offer, however, a distributor will want to know whether the film is “delivery ready,” which requires confirmation that music licenses have been secured for distribution. When the interested distributor learns that the filmmaker has not cleared music beyond the festival circuit, it may raise concerns that the cost to deliver the film with essential music cues is prohibitive.  Distributors understand that the time and expense required to physically replace an essential track with a lesser-known one may be considerable.

For these reasons, distributors are often reluctant to acquire a film for which music licenses for distribution haven’t been secured. In a competitive market, the filmmaker not only may miss an opportunity to partner with an experienced distributor but also risks a loss of credibility if the distributor feels manipulated by a game of licensing musical chairs. Alternatively, the distributor may insist that the filmmaker clear the music for distribution as a condition of accepting it. The cost of that to the filmmaker has been known to occasionally exceed the advance.

In addition to problems that arise when selling the film, a festival license often costs more in the long run than a license with broader rights, because the fee cannot be applied prospectively to a subsequent distribution license. When the time comes to secure music licenses for wider distribution, the filmmaker will be compelled to pay the fee in full with no credit for what already has been paid for the festival license.

In lieu of festival licenses, a better path for the mindful producer is to secure music licenses for distribution at the outset. One less expensive option is a “step” license that scales the fees commensurate with the scope of distribution for the film. With a step deal, the producer pays only for the actual use as and when deployed and will not be responsible to pay fees for unexploited distribution rights. The challenge with a step deal arrangement, however, is that major record labels and publishers are reluctant to quote license fees unless and until a film has secured distribution.

A personal appeal to the recording artist or his or her estate — particularly when the documentary subject aligns with the values of the artist — sometimes works, provided the artist can persuade the publisher and music label to reduce or eliminate fees. But perhaps the best solution of all for a budget-conscious filmmaker to acquire existing music is to hire a music supervisor to license songs that are budget-appropriate.

[Steven thanks music supervisors Barry Cole, Jonathan Zalben and Jonathan McHugh for sharing their practical experience.]

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