Music to our ears

Music is an intrinsic part of movies. It is understandable that filmmakers are in search of that piece of music (in fact several) that would perfectly suit their films. When considering music for a film, filmmakers have a choice between:

A: getting rights to use pre-existing music; or

B: commission their own original musical score. In other words, hire a music composer to create something for their film.

Clearing the rights

Pre-existing music or music that is already available (e.g. a popular song) belongs to some person or entity and sometimes more than one. For example, the composer may own the copyright to the composition, the lyricist the copyright to the lyrics, the musicians the copyright to the performance and the record label the copyright to the actual sound recording (the end song you hear on the radio or find on a CD).

The first thing a filmmaker has to do is to establish what exactly he wishes to use: the sound recording, the lyrics and/or the song, etc. There are different types of licences (or permissions) granted depending on what type of copyrighted work you wish to use. A Synchronisation or Synch Licence, for example, grants permission from a publisher to put the music in synch with visual images. A Sound Recording Licence grants permission from a sound recording company (e.g. Sony BMG, Universal, Warner) to use an existing sound recording of a work.

Next, a filmmaker must establish (and find) who owns the rights to that sound recording, those lyrics or that music. Tracing the rights to a particular piece of music may be a tedious task as often various parties can co-share the music. Other times, the rights may have been sold.

Sometimes, certain coveted music may have fallen into the public domain, making it available for use by anyone (e.g. Ravel's "Bolero"). This certainly may be good news on the financial front as it would appear that there is no need to pay for the music. However, the rights in a particular recording of "Bolero" may belong to a third party and the filmmaker must check in advance if any copyright needs clearing if he wishes to use that particular recording.

Commissioning music

Another way to go around securing music for your film is by commissioning someone (a composer) to create something specific for your film - an original score. This may or may not be a more cost effective venture depending on whom you hire.

When commissioning music, filmmakers must take care and ensure that the music created does not include any underlying copyright owned by third parties e.g. lyrics or parts of lyrics that belong to someone else, or bits of music that are "borrowed" from a pre-existing composition/music without obtaining the appropriate prior approval. In other words, the filmmaker must ensure that the composition is original and include such a clause in the agreement he signs with the composer.

Usually, when commissioning music, it is preferable (and filmmakers usually try) to secure the copyright in the same. The agreement with the composer should therefore also include what happens to the copyright in the music i.e. who will own the rights in the same going forward. Sometimes though, the composer will retain joint ownership of the music with the filmmaker. Other co-ownership arrangements may arise where an acclaimed songwriter is hired to write the lyrics for the music and asks for shared rights.

An artist can also be hired to create a song against the payment of a fee. In this case, the artist is responsible for creating the song, recording it and providing the master to the filmmaker. One thing to look out for when commissioning a popular artist is, that the artist hasn't entered into any exclusive arrangements with a record label for recordings for a specific term or several albums. The record label may ask for royalty from the filmmaker (or the studio) in return for granting permission to use the artist on the film soundtrack.

For more information on the Rights Lawyers, go to www.therightslawyers.com

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