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.
A musical recording contains two distinct copyrights: the copyright in the sound recording, indicated by ℗ (which stands for “phonorecord”), and the copyright in the song that has been embodied in that recording, indicated by © (which stands for “copyright”). The song consists of music and lyrics that can be written out in text and musical notation. The sound recording is a performance of the song that is captured on a hard drive or other storage medium whether in a recording studio or live at a concert. Except in rare instances when no permission is required under copyright law (see the discussion of fair use below), a filmmaker must obtain rights under copyright in both the recording and in the song before adding someone else’s music to a film.
Rights in the sound recording: A rights agreement for use of a sound recording is called a “master use license” (“master” being music industry terminology for the final, fully-mixed version of a recording of a song). An unsigned artist usually owns his own masters and would be the one to ask for this license. If an artist is signed to a record label, the label generally owns the master and would be the contact for permission to use the recording in a film.
When a documentary filmmaker records a live musical performance, she is essentially making her own master and doesn’t need a master use license. However, a license to use the song is still needed (and rights to the performance may be needed from the performers and possibly from their labels).
Rights in the song: A license of the song must come from the owner or administrator of publishing rights in the song (“publishing rights” being industry terminology for rights needed to exploit a song in various media, including films). Songwriters typically enter into agreements with music publishers that either acquire the copyrights or acquire exclusive rights of administration in a songwriter’s catalog of compositions. A music publisher (or an agent of a music publisher, like the Harry Fox Agency) is typically where a filmmaker must go for rights.
In order to use a song in a film, a filmmaker must obtain a synchronization license (called a “sync license” for short), which permits reproduction of the song in the film. The sync license should include a right for the filmmaker to exhibit the film in all media, including both performances before a “live” audience gathered in the same theater where the film is shown, and transmissions via television, the internet, and other types of broadcasts. Rights to use the song in advertising and promotion may cost extra. And if the soundtrack from the film will be released, those rights are also additional.
Unlike licenses in sound recording masters, which often are owned by one individual or company, publishing licenses are more likely to come from multiple sources because songwriters frequently collaborate and members of a songwriting team may be represented by different publishers. As a result, it may be necessary to contact multiple publishers to obtain the necessary permissions for a single song.
Given the many steps and costs involved in licensing music, filmmakers many times choose to commission original music, or to license music from a pre-cleared music library, rather than go after a popular song. Factors like the budget for the production and whether someone else’s music is an absolute necessity to satisfy a filmmaker’s vision point toward the best approach.