CHAPTER 1

1

in the beginning

SECTION 1

Since 2000. when I wrote the first edition of this guide, much has changed in the entertainment industry. I’m sure you don’t need to be told that the music business has changed so drastically that most models for success have simply evaporated. It has been said that music supervisors are the new A&R people, and I say this is at least partially true because most of the A&R people have been fired from their companies and the companies are up for sale or sold.

Meanwhile, retail is no longer selling much music product, physical discs are on their last legs, radio no longer can be counted on to break artists, YouTube has risen, MySpace has both risen and become somewhat of an old maid in the digital space, Facebook has come out of nowhere to become the largest site on

the net, social media is on everyone’s lips, an even newer sheriff may be around the corner, and on and on.

With all these changes taking place, the idea of gaining exposure and revenue from music licensing now seems to be front and center in people’s minds. It continues to be one of the few areas of the music industry that people can count on not to change. Or can we?

In fact, I’ve seen more change in the last 5 years than in the last 15, and much of it comes down to two things...the internet and a general sophistication from all players in the business of licensing.

foreward

2

First, the internet. Before 2005 the internet was often buggy, slow, things broke, and many people lived impatient lives (not us!). But recently the promise of streamed content easy today because of MySpace and YouTube - and the ability to move, catalogue, share, the population have learned to embrace the idea.

The other big change has to do with sophistication. Whether one is an artist or a TV producer, a business affairs person or film director, people have discovered such things as the power of music licensing as a profit center, the concept of performing rights, the need to negotiate a better deal, the desire to automate, the desire to aggregate, and more. All of this has led to some big changes in the music licensing business.

Relative to all of this, I have taken a pencil (ever owned one of them?) to some of the ideas in this guide to provide a current state analysis for the reader. It’s 2012, and the change we are seeing in all things music licensing shows no sign of abetting... neither soon, much less ever. Yes, time seems to move ever faster, and change is part of the engine.

Now, having said all of the above, the basic building blocks of music licensing are static. The content of this guide continues to respond to the question of how to license, how to deal with the terms, how does it get done, the jargon, et al. Rest assured this is solid knowledge that anyone wishing to operate within the space requires.

But, I have chosen to update key components in the guide to reflect the changing tides this part of the industry finds itself in. Key among them are; the Broker and Music Library sections; the use of

the CD as a marketing tool, and; an updating of the New Technologies chapter to better reflect the state of the internet/streaming/downloading of TV shows etc.

I hope you will enjoy the way the style of the guide, but more importantly, I hope you learn what you are looking for from what I write. My only interest is to communicate and to share with you the information you are interested in knowing more about.

Onwards, upwards, and here we go.

3

...the internet and all technology has changed everything

SECTION 2

I want to give you money. I want to help you get noticed by the global entertainment community. I want to help you build your career. I am interested in you and your music, because without you there would be no music in movies and television. And without you I wouldn’t have a job. I am a Music Supervisor for Film, Television and All Media.

I like my job, and I like the people that I come into contact with. What could be better than talking to Musical Artists and

Filmmakers all day long? This is a fun business. Yes, it can also be very stressful, but at the end of the day, it’s also a gas. And for you, part of the fun can be the part about making money, letting people use your music in a film or television show, and having more people become fans of your music.

As radio playlists get more difficult to tap in to, other opportunities need to be explored by people who make and market music, and at the top of this list is licensing music into

introduction

4

film and television. I’m going to help you do this within this guide. You are about to learn some practical things, which you can tell your friends about if you like, or keep to yourself as your own little edge.

I have been a Music Supervisor since 1994. I have worked for shows that have aired on MTV, NBC, CBS, ABC, HBO, BBC, CBC, and many more. I’ve dealt with big and small producers. I’ve been involved with Feature Films, Cable Movies, Television Series, and Documentaries. I’ve dealt with people from rockstars to nobodies, from lounge singers in Las Vegas to Latin rap groups in Chicago.

I’ve done deals for some great productions, and I’ve done deals for the worst shows you would never watch. I’ve dealt with the largest Record Companies and Music Publishers in the world, and I’ve done deals with the smallest self-managed artists you’ve never heard of. I’ve spent tens of thousands of dollars on licensing a single track, and I’ve licensed for free. I deal regularly with Los Angeles, New York, London, Paris, Toronto, Australia, and South America.

I happen to be based both in Toronto and Los Angeles, but in this day and age I could easily be based anywhere

people are making movies and television. As it turns out, Toronto has been going through a boom time in its entertainment production community for many years, and the weather in California is awesome. But the rules are the same around the world, so everything you read and learn here holds true no matter where you live or who you deal with.

One last note before beginning; You may notice some terminology which you are not familiar with …bear with me, as everything will be discussed before the guide is complete. For this reason, I would advise you to read this at least twice in order for everything to make sense.

5

CHAPTER 2

6

submitting

SECTION 1

All kinds of music gets licensed, but common sense tells us if a film is set in the wild west, then we’re not going to hear metal or reggae music in the picture. Yes, there are exceptions, but you catch my drift, right?

It’s surprising what you will hear when you really start to go through the “music bits” in a typical contemporary film. You might hear a marching band on the street, a calypso song in a bar,

a wedding reception with songs being performed by a singer and trio, and a more sober selection of plaintive ballads at a funeral. I like to say I’m always on the lookout for a good yodeler!

In all seriousness, a well-produced track, with great singing and an interesting lyric, though not too specific, is a great place to start. When I say things shouldn’t be too specific, it is because many filmmakers are watchful to make sure lyrics aren’t too “on

what gets licensed

7

the nose” for their film. Filmmakers are typically trying to “enhance” the feeling of a scene rather than trying to “illustrate” it.

Picture this; A young girl steals a chocolate bar from a store in a scene. It’s more likely a lyric that speaks of a “mixed up life” will do better than one which says outright “she stole a chocolate bar from the store”.

Regarding styles - in my experience - it is more likely that slightly “dark” sounding rock tracks get licensed more often than other types, with electronica-esque sounds having been more popular in the last several years. But, reggae, country, and blues are often used in bar scenes where a particular “vibe” is sought after. And, singer/songwriters seem to never go out of style.

Having said the above, it really does keep coming back to the idea that all kinds of music does get licensed. Since we have music in our lives for so many different types of events, it is only logical that filmmakers also need every kind of music; albeit, some kinds only once in a blue moon!

Instrumental music is probably the least likely music to be licensed since a film composer will typically be hired to supply any “score” elements for the Film. This individual will probably get stuck, whether he likes it or not, with creating all instrumental tracks, even ones which are set to play as “source” music in a bar. Nineteen out of twenty licenses that I do involve tracks with vocals on them.

In the end, producers are no different than you or I. They often simply respond to a good beat and a cool sound. The lyrics don’t

have to be “right on”, and in many cases, they must simply not fight the story.

Having said all of the above, there are certainly times when filmmakers want a song that contains an exact lyrical discussion of events taking place on the screen, as in hearing Rose Royce’s “Carwash” in, you guessed it, a scene with a carwash. In fact, I call such requests Carwash requests. And it’s becoming more common in recent years since many people think this is the ultimate marriage of music and film. Fortunately, not everyone agrees with this view…

8

Tip:Always endeavor to produce “TV mixes”, i.e. mixes of your vocal tracks without the vocal included. A Music Supervisor will appreciate the option of using the instrumental passages of an otherwise cool track, particularly under dialogue. Through a music edit, the vocal can then be used before or after dialogue has taken place. An available recording in “dub” form is something I often wish I had more access to.

SECTION 2

There are several publications that publicize which new Feature Films, Cable Films, and Television Series are in production, including;

Variety Magazine; This Los Angeles based publication is, along with The Hollywood Reporter, the bible of American film and television production information.

Hollywood Reporter provides production lists of everything either in development, in current production, or in post-production.

See www.hollywoodreporter.com or See www.variety.com

Most entertainment trade publications are expensive to subscribe to, but chances are good that your local library has a subscription. Even out of date issues can give you several great leads in your quest. Of course, online access is your best bet for up to date listings.

You can also seek out local production companies in major centres and get to know everyone and anyone working in the business. Those who have upcoming productions that they’re working on

finding places to pitch to

9

will have a list of phone numbers for the key production people and you should feel free to give them a call.

You can typically get the production office phone number from the head office of the Production Company overseeing the show, and then simply give them a call and ask who is responsible for the music requirements for the show. Usually this will be the Music Supervisor, but it might also be the Producer, an assistant, or the Post Production Supervisor.

In case you don’t know, the Post-Production Supervisor oversees the delivery of all the elements that you see and hear in a film once the film shoot has been completed…including music.

We’ll discuss what to do next later in this document.

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without youthere is no music

SECTION 3

Every month there are hundreds of new master recordings created by artists from Los Angeles to Miami to Montreal, in styles ranging from rock to blues to swing to adult contemporary to polka, and the list goes on and on and on.

The good news is that there’s room for all sorts of music in film and television. The bad news is that there is so much music out there already with more being released every day, that to listen to all the new music released every year is impossible.

That’s why it’s important to make it easy to figure out what kind of music you are submitting. Doing your part for a Music Supervisor or filmmaker in this regard is the single most important thing you can do to get noticed once someone has taken receipt of your music. For your own sake, do not ignore this point. Now I’m going to tell you what you can do to help the process work for you and the listener.

sending submissions

11

SECTION 4

Your safest bet in terms of what format to deliver for someone to listen to has, until very recently, been the CD. The CD has been the format of choice of the world, because if the best song is track #9, a Film Editor can cue it up immediately, etc. If you haven’t released a commercial CD, then you would make a bunch of CDR’s.

Commercially released recordings are no different than CDR’s where indie filmmakers are concerned. The only difference will be the potential for the filmmaker to have heard the music before, which is a definite plus, but other than that, one shouldn’t be shy

about sending a CDR of unreleased music to a film. It won’t be relegated to the trash heap, so long as it sounds great and works for the film. Don’t worry too much about fancy artwork an CDR’s either, so long as your phone number and relevant info is right on the CDR.

By the way, don’t bother with vinyl. Vinyl is for clubs, not for the film business. You didn’t need to know that, right?

the CD

12

SECTION 5

Of course, the obvious and most recent development for delivering music is online delivery. Increasingly, I find both Music Supervisors and music sellers have an interest in skipping the CD step entirely, at least for auditioning material, and simply mounting music at an online site for streaming or downloading. This has become a truly excellent way to let people hear your music. I often tour such sites as MySpace and others for interesting/applicable music for a film. Music sellers now all have a website that allows streaming with a flash player and hi-fi downloadable files. I highly recommend this move if you are

considering it. Sites like Box.net, yousendit.com, soundcloud.com, etc are all there for you to use as your music dumping site.

The one thing I try to discourage is having people send mp3’s as attachments in their email. It simply bogs down the net, and fills people’s mailboxes. The preferred method is an email with a link to a website that holds the music. Please consider this as a way to entice people to listen to your music. I receive from 2 to 5 of these linked emails per week, and I go to all of them!

internet delivery

13

SECTION 6

As time marches on, the mailer is quickly becoming a thing of the past. But, given that you are intent on sending a CD, you should do the following: On the outside of a mailed package you should use a felt marker and name the show you are pitching to and general music style contained on the CD within. There may be loads of mail received daily by your targeted person and an individual always appreciates the help in defining what’s in a package.

As unfortunate as it is, there is a good chance your mail might remain unopened for days and sometimes weeks if someone thinks yet another indie CD has arrived on their desk. It has not been unusual for me to receive up to fifty CD submissions per week, times fifty-two weeks per year, meaning it isn’t difficult to find oneself receiving up to 2500 new recordings every year. (Imagine how much music record companies received from people hoping to land a recording contract! No wonder bands had a hard time getting signed! No one ever heard their album!!!)

mailer

14

SECTION 7

The following holds true for both emails and written letters. A brief letter outlining the film you’ve submitted for, plus some stylistic description of the music, is appropriate to include in a cover letter/email.

I continue to find it quite incredible that people can miss putting their phone number on a recording or in an email. Paper often gets misplaced, so don’t leave your contact info on your letterhead only. Even if you use a Sharpie to put your phone number on the CD and/or jewel case, it will be better than missing this info completely. If you are sending someone to a site to hear your music, try and get your contact info to be clearly available to the visitor.

cover letter & info

15

Tip:Include your name + phone + email in every single thing you send...and try to remember that you may be one of one hundred people looking for the same placement. So, don’t expect someone to remember your information just because you gave it to them one time.

Once someone has opened your package, you should remember that you are not looking for a recording deal. While it is good to know something about the band’s media support and fan club info, you should remember that most of the time your music has been submitted so that it can perform a perfunctory role in a scene, such as “blues band on a jukebox in a bar”.

Endless paper simply clouds the music, and it costs you an unneeded expense. Save the glossy photos for media outlets.

I would also recommend that you unwrap the CD from its shrink-wrap before sending it. That way you can use a Sharpie on the list of songs and either describe or highlight key tracks. This is a godsend when trying to understand a particular recording’s potential appropriateness for something prior to actually hearing it.

Tip:Did I mention that CD’s are going away? I am so convinced of this, and hate CD’s so much, that my company no longer accepts CD’s for submissions. We insist on receiving a link to your website(s) as we are in love with the internet. Oh, we also use Soundcloud.

16

SECTION 8

A good rule of thumb is that in a film, the director typically rules, while in television, the producer will usually be the ultimate ruling body. While a music supervisor can be the one to introduce a particular piece to the producer/director, your ultimate yes/no is going to typically come from one of them. It can then be said that money is the real decision maker, particularly in the independent film business, where budgets are tight, and where most popular songs and/or artists are difficult to attract.

As to how it arrives at a listening session for the powers that be, it can be a varied and unique journey. It’s typical that I would begin my search to get the “country blues band on the jukebox” tune by looking through my collection of like-minded recordings. This collection would include both new things I’ve received recently, as well as things that I’ve mentally collected from my current music collection.

who makes decisions?

17

From this group I’d pull a dozen or so out, listen to everything while viewing the scene on a monitor over and over again, and pick three or four choices to bring to a listening session with the producer/director. At that meeting, they might pick a favourite or two. They may also ask to listen to other choices and we would start again with more tracks. You can see how I might need to be reminded about the music style on the CD cover, particularly if your CD was received six months ago, and I’ve forgotten about it. By the way, this is a small reason that some music supervisors (not me) continue to believe CD’s have a bit of an edge on MP3/online delivery of music.

They believe, and to each their own, that there is something tangible about a CD, that it’s easier to find, pick up, put in a briefcase and go to a meeting with. Of course, one can simply download and burn a CD, but its an extra step in a sometimes busy/stress-filled day! For others, its all about accurate tagging in an iTunes library. Bad tagging means things are getting lost like socks under a bed.

By the way, recently a new way of working has evolved for us. We cut the song to the digitized picture we’ve been sent, and then we put several song versions of the scene online at a private viewing site for the creatives to go through. It’s far more efficient and people can watch/listen at anytime of day or nite. Sites like dropbox.com are awesome for this!

Now, once people have decided that a track by your band is their pick, the Music Supervisor will call the Master and Sync rights holders and then, believe it or not, you make the decision! The film is at your mercy! You could charge anything you wanted!!

The film needs this track because it makes the scene! And if you have a big film with lots of money, they really will pay you just about anything to get the song, into the hundreds of thousands of dollars!!!…

But we’re not there yet, so calm down. The film has just offered you twelve hundred bucks for all rights, with the added comment of “take it or leave it”. So, it really is you that has the ultimate power, it’s just not so powerful sometimes…

Later in the guide we’ll discuss a longer version of this phone call. Until then, let’s move onto promoting your music.

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CHAPTER 3

19

promoting your music

SECTION 1

You can send your music to any one of: the creative producer, director, music supervisor, picture editor, or executive producers. In fact, you can even send music to the assistants of these people. You will have more people tuned to your sound than you did before, and you may well be the “buzz” of the film edit.

Having said the above, the Music Supervisor is the person you are best to target in ensuring your music is considered for licensing in the Film. He or she has had meetings with the creative team and general decisions have been made in terms of style and tone for music requirements.

who should get it

20

Tip: Asking the assistant to whomever to come to your live show is a great way to get noticed. People are people...we talk about what we did last nite, and having a person excited about you is the single best way to get another person excited about you.

Tip: Stay in touch with people who said they like your recording, even if they didn’t license it this time. Certainly it is disappointing if your track didn’t make it into a show, but thank the producers, sincerely, in writing. The people who hear your music on this show are going to work on other shows in the future, so they may well remember your sound and want to use you in the future. The road of life is long, and people need to be reminded occasionally that you and your music exist.

21

SECTION 2

The more unique your sound and songs are, the more likely it is that when your particular sound is desired, you will be the one given a call to license. And don’t forget that your uniqueness is what gives you the clout to charge a lot of money for your work.

Loreena McKennitt has such an unusual sound that anyone that calls her to license her music is saying “you are the only one we want and we will pay for the privilege to use your music.” She

has built a reputation as being unique, and her music certainly is. Now, if your music is somehow similar to hers, this may be a good thing, because a producer may like the idea that he can get her sound for less money from you.

Likewise with David Hykes, an American who makes his home in Paris. He records unique vocal music unlike most music that is available, and he receives calls from all over the world from big

getting noticed

22

films that want to use his music. His tracks have appeared in Dead Poets Society, Blade, and Jacob’s Ladder, among others, simply because he, and he alone, could provide the sound the creative team was looking for. And they paid handsomely for the privilege of using his music.

Conversely, if you have a garden variety rock band, it is very hard to get noticed above the others. This is simply a case of supply and demand. However, there are practical things you can do. Perhaps twice a year, you could send off a reminder notice to whomever you have sent material to that they have in their possession a copy of your music, which is full of great R&B. This little nudge is sometimes the difference in getting your music used. Remember that timing is part luck and part persistence.

One broker I know, who is a lawyer from New York City, actually used to tape along the spine of the CD a bright yellow strip, which said things like “vocal R&B” or “surf rock”. These sorts of things are triggers, which help people in their search for appropriate music. Of course, he now uses the internet, and categorizes his music into “sounds like” folders, like Aerosmith or Lady Gaga. These are great ideas everyone should think about!

a unique sound can be highly licensable for the right scene

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SECTION 3

The moment you use foul language in a song, you’re pretty much out of the running to be licensable, which should be fairly obvious. This is typically the rule in anything that might air on television. Certainly the odd Feature Film will use some questionable lyrics, but for the most part you are better off staying away from swearing where possible. Certainly the Eminem’s of the world can get away with it, and the mores of swearing have relaxed in a big way in the last few years, but my advice for most

is to lay off the fuck’s, as it will only get in your way of licensing, which is the real reason you’re here!

The next biggest thing to ensure lack of desire to license is singing out of tune. It’s amazing how much bad singing appears on recordings. Follow that with poor production, and/or generally poor execution, and you’re pretty much fighting a losing battle. It’s really no different than anything else. People must like the

don’t do this

24

piece of music as well as all the elements involved, whether it’s the snare sound, the vocalist, the beat, etc.

Some people might think that if their song tells a wonderful story that it must be perfect for licensing. The problem with this is that if the film is about a murder mystery, a song about partying typically might not work. The universal theme approach in a lyric, the hallmark of pop radio hits, is just as popular in film.

If you think your tracks are weak in any way whatsoever, your best bet is to fix the weaknesses or choose other tracks to submit. The people who listen to potential songs to license are no different than you and I. They will not waste their valuable time listening to substandard material or performances. Sad but true.

Also, let’s not forget that there is never an excuse for bad manners. People are more prone to deal with people they like and more likely to shy away from people who are either rude or disinterested. Like most people, I prefer to deal with fun people and similarly prefer to stay away from negative types. This is perhaps the easiest thing to master, yet is the easiest thing to forget as well. Your calls will more likely be taken if you are nice, and people will send you to voicemail (at best) if they think you are a pain to talk with.

25

be nice to people

it’s free

and you will beremembered for it

26

SECTION 4

There never seems to be a shortage of people who would like to write songs for Films. But there is always a shortage of films looking for songs to be written, at least, by unknown writers. All the big Hollywood films that have songs written for them tend to use the writers who have great track records as hit songwriters, like Diane Warren.

Your best bet might be with the Indie Film Sector. Filmmakers who make Indie Films tend to think that they’ll never find the

right person to simply hire without some sort of audition process, or that they can’t afford to do it.

I would advise that the best way to break into writing songs for films is to do it on “spec”, as in “without a guarantee that it will be used and without financial risk for the filmmaker”. The filmmaker will definitely be impressed that you would go off and write a song for his or her film on the off chance that it will be used. It certainly always blows my mind, and at least ensures that

songwriting on spec

27

I will take serious note of the individual in the future, particularly if a great or nearly great song is delivered based on a simple idea associated with a film. Your song may not end up being used, but what a great way to get noticed!

One final note on Indie Films and songs recorded for them; You should consider that it will cost someone a fair amount of money to pay a suitable performer – read popular artist – as well as a music producer and studio time to record and mix the track. Some filmmakers simply can’t afford an expense like this, no matter how much they like a song, so it’s good to be aware of the challenges a small film might have.

Meanwhile, I’ve been involved in many instances of songs getting written and recorded for a film. For example, I worked on a film called The Fishing Trip – a very small budget, first effort, indie film – where I thought having a closing credits song written and performed for the film would be a nice touch. I was able to bring a major music publisher onboard to pay for the recording in exchange for their sharing the copyright with the songwriter on the master and sync. The song was performed by Oh Suzanna, which is one very talented singer/songwriter with a single guitar. The recording was very inexpensive, but still out of reach for this indie film to finance. The song “River Blue” went on to win an “Original Song” award at the Genies, which is sort of Canada’s version of the Oscars.

Less fortunately, I was recently called to do a cattle call for an opening theme song for a children’s TV Series. I went out to 9 people who all sent in what I thought were awesome song choices. They wrote, recorded, and mixed their creations within 72 hours of getting the call. Then, everyone waited 10 days for the producers to call back and say they didn’t like any of them.

Situations like the one above just make me want to slit my wrists. Yes, this songwriting on spec business can be a rude and ugly part of the business, a reminder that filmmakers can sometimes treat music and songwriters only slightly better than the cash register person at McDonalds.

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SECTION 5

Traditionally, Music Libraries have been the simple one-stop solution to turn to when one was looking for Italian wedding music or choral music from the seventeenth century and the like. In recent years they have made big efforts to amp up their offering in the area of contemporary music.

In the past, I’ve not been a big fan of using such Music Libraries for anything that is supposed to sound artistically “real”. Most people I know in the film business are sensitive to the need to

create a “real” environment in film and television, which is best brought about through the use of “real” music, and these libraries have had a rap against them that the music has sounded fake or uncool in some way. Having said that, and to their credit, music library companies have added catalogues of a wide assortment of “real” sounding Masters in the last few years, and often these Masters are created by people like yourself. This is certainly a growth area for many songwriters.

music libraries

29

The library either licenses this music from you, or buys either part of or all of its interest in it from you. You may receive a fee for creating new songs and masters, or you may not. You will most probably receive songwriter credit on cuesheets, but probably not own the publisher portion, as this is a key profit center for the music library.

In turn, the library often does an “all you can use” deal with a producer and receives a flat fee and the knowledge that it will receive publisher share performance rights money when it airs on TV. If you are interested in providing music to Libraries, the best thing to do is contact them directly. Just Google it.

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SECTION 6

A big change is afoot in the licensing business. There is an ever increasing number of companies in North America and around the world who make it their business to be a “one stop shopping” environment for Music Supervisors looking for music to put in pictures. This can make much sense for the artist in that the Broker will spend their time staying in touch with their contacts in the industry, which can be a never-ending job.

And let’s face it, if you have a Blues record and someone doesn’t need a Blues record right now, it can be a long time that you have to stay in touch with a Music Supervisor, and over time they may wish that you would stop bugging them. So, the broker has all

kinds of music by all kinds of artists and can often be the saving grace for a Music Supervisor.

The trouble with a broker is that they have so much material and the nature of their business says that they must have as much material as possible to cover all possible requests, that your material can easily get lost in the shuffle.

Though I did not previously believe it to be in your best interest, I currently believe that it is in the best interest of an indie artist to make use of a broker to be the middle person in one’s quest to get their material licensed to film and television. There are now

music brokers

31

simply too many ways for you to be ignored, and music brokers are changing the way this business works in a fundamental way.

You should know, though, that the broker deals are changing in an aggressive manner now. It used to be that a broker would take perhaps only 30% of the upfront fees and that would be it. Many deals are now for 50% of the upfront fee, and as much as 100% of the publisher share for cue sheets/performing rights. This, of course, will create an on-going income stream for them, an income stream that will- over time - outstrip the upfront fee in terms of revenue.

These aggressive changes are being brought about for several reasons, including; fees are going down overall in music licensing, so a mere 30% of a fee does not make for a viable business; there is a lot of tagging, clouding, automation, databasing, etc going on in the space; and it costs money to build these websites.

Yes, a big change occurring in the music broker space is the advent of the deep and searchable online database. Since 2008, these sites have started getting very sophisticated. Many players have entered the space and they are all competing for the mindshare of music users.

You may be asked to represented exclusively by a music broker or you may not. They all have different deals. As for me, I think that if someone is going to work for you and actually show financial results for their work, then they deserve to participate. I do understand, however, that this is a thorny issue for some.

Tip:

Renaming of licensed tracks to allow performing rights participation by the broker is all the rage now. The broker gives a particular name to the track as it’s licensed into the film, so that it appears differently to your performing rights society in this singular use than as it appears on a CD for commercial release. For instance, you may have a song called “I Love You”, and for the license you may wish to call it “I Love You X”, and where “I Love You X” title is what’s listed on the cue sheet for the show. That way there will be no problems figuring out how to separate royalties from performing rights payments.

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SECTION 7

This is a biggie. The evolution of technology is creating a complete re-think in the way licensing is conducted. I simply have no idea how people did what I do everyday before the Internet came along. I would fall over if it weren’t for the net. I can now research artists online, regardless of where they come from. I’ve discovered great music and indie labels from Australia, the UK, and Florida through the net. I have labels and artists from around the world contact my office to keep me posted on their activities, recordings, and songs.

I would implore you to make use of this tool as standard practice in your business of trying to drum up interest in your masters or songs, as all of your competitors are all over this!

Using some sort of streaming technology (e.g. Soundcloud, etc) to let a Music Supervisor hear your music is a great idea. In fact, sending an email to a producer with a link to your song right then allows for immediate connection to the film. If your song is right, you’re on your way. If not, you needn’t waste any more time.

the internet

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Certainly, in the last few years this method of distribution has become extremely popular. I don’t expect you’ve missed the boat on this very important part of marketing, but just in case you have, here are a few of words of encouragement: get with it!

If someone can go to the major search engines and find your music by asking for “Country Indie Music” or some such request, you are way ahead of the pack. Similarly, if someone looks you up with a search engine, you would be wise to do your best to ensure that your name appears as high in the search results as possible.

The net is certainly unwieldy, but you can do your part to ensure that your marketing efforts are the best they can be. I use all sorts of sites and engines to find music, but by far the easiest site to navigate over the last few years has been MySpace. I am of the breed that believes this site will be superseded by some other and better site. But until that day arrives, even a bedroom songwriter should have a page there.

So, make sure you are listed on sites like MySpace, get yourself a website and keep it updated with your newest material, and have

it added to as many search engines as possible. All of your contact information should be there as well as anything else that tells your story better than the next guy does is a good thing. Put some music online and get a database of Music Supervisors and Film Companies and get in touch with them. They want to hear from you!

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CHAPTER 4

35

business

SECTION 1

I am often asked if a film will own your music if you do a license with the production. The answer to this question is unequivocally “no”. These are “licenses”, which should be thought of as “renting” the use on a “non-exclusive” basis. You can license the same song to another show if you like, and do anything else with the song that you would do had it not been licensed. The show is simply “borrowing” the track/song and affixing it to the Film. Likewise, the Film can only use the track/song while it is, in fact, affixed to the Film or in a trailer for the same Film.

This should not be confused with your band being hired as a Film Composer, whether as a “work made for hire” or “work done in the course of employment”. In such cases, the Film will almost certainly own your work outright. But in our discussion, and the topic of this document, we are strictly interested in the concept of a Filmmaker licensing pre-existing tracks.

sell or rent

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Tip: If you are fortunate enough to have your work licensed for an advertisement (depending on what you think of that idea in the first place!) for a car or a pizza delivery service, the advertiser may wish to impose some sort of exclusivity clause in the agreement. Such a clause may say something like “during the license period and for a period of six months after the term expiry you shall not be allowed to license the same music to any other food or delivery oriented product”, or the language may be much broader, as in “no other advertising campaign whatsoever”.

I once wanted to license “Fly Like An Eagle”, as performed by Steve Miller, for a film, but was told it was unavailable for any licensing. Three months later I noticed it was the new theme song for the US Postal Service. I think they paid a lot of money for this song!!

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SECTION 2

The Master Use Right is the right to use the “master recording” in the film. Typically, this takes the form of a unique performance of a musical composition which has been recorded onto a Master Tape, historically something in Stereo, like audio tape of some sort, but in recent years it has typically be affixed to a DAT or CD, and is now simply a file on a hard drive or in the cloud!. You can record a new version of “White Christmas” and license your new recording of it. This will be called the Master Use Right. However, the filmmaker will still have to deal with the publisher of the song for the Synchronization Right.

The Synchronization Right is the right to use the “composition” in the film.

This right pertains strictly to the Music Publisher and songwriter of a song, not a recording of it. So, if a local band records one of your songs, the Filmmaker will still have to deal with you for this Synchronization Right, and with the local band for the Master Use Right. The license is called a “Synchronization Use” license. The term “Synchronization Right” is typically shortened in conversation to “Sync Right”.

master and sync

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!

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Tip: Just to ensure great confusion, you should know that both the master use and synchronization use licenses are technically “synchronization licenses”. Yes, I just finished saying one is called “Master Use” and the other is called the “Synchronization Use”, and the industry does typically discuss them in these terms. But, sometimes one will find themselves in a discussion with someone who works at a record company and they will talk about “sync uses” and you simply have to pick up on the idea that they are really talking about the film and TV uses of the master recordings in their catalogue!

Yes, it gets a little tricky from time to time. Overall, you should ignore this note and deal with it as I’ve discussed above, but once in a while you may find yourself in a similar discussion and at least you now know what the other person is talking about!

SECTION 3

If you make an indie CD and put it out yourself, the chances are very good that you own the Master. Likewise, if you write a song by yourself, you immediately own it. You can choose to do whatever you please with it.

Once others come into contact with your music on a business level, there is a chance that you don’t fully control it. Often, I have to explain certain things to indie artists and I am forced to ask

many questions before establishing who owns the Master and the song. Here are some instances where you may not entirely own your work;

An Artist Manager invests funds into your career and takes control of Masters and Songs in lieu of payment.

owning the material

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You enter into a Production Deal with a person or persons to fund the creation and release of your recordings.

A Recording Studio gives you some time at their studio to record a CD in exchange for co-ownership of the Masters. Also, you may find a studio claims that until you pay for the recording sessions, they will own the Masters.

You’ve co-written a song with someone else.

You play in a band with several other people. Perhaps all of you own the Masters and the songs together, depending on your agreement with each other.

You’ve signed a Record Deal with a Record Label.

You’ve signed a Publishing Deal with a Music Publisher.

In all of these cases, it is possible, and indeed likely, that you no longer fully control your recordings. In this case, a Music Supervisor must figure out who does own it and deal with this party exclusively when negotiating for a license.

On more than one occasion, I have found myself attempting to license a Master or song from someone who I later found out did not control the right to license. This is extremely frustrating, and more often than not, I have chosen to avoid dealing with these people again. It is simply a matter of human nature to deal with individuals who are trustworthy, and to avoid those who you believe to be dishonest.

It is quite typical to find an indie act which has decided that they collectively own the songs and the master recordings. In such cases, the licenses that I do with these acts takes on the following look: Jim Smith o/b/o (on behalf of) Debbie Jones, Carl Cole, collectively d/b/a (doing business as) The Applecarts. This commands that Jim Smith has some sort of deal with Debbie and Carl where he can collect and disperse funds on behalf of them.

Also, that the check will be in the name of Jim Smith. The reason I do it this way is that lots of indie bands don’t really have a bank account or even a registered business called “The Applecarts”.

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Tip: If you sign a Record or Publishing Agreement with a small indie, you may wish to consider keeping funds received for “Film and TV Licensing” out of the deal altogether. But only do this if you believe that you can do better at the art and science of licensing than the company signing your band. These companies do make it their business to find opportunities for their artists, and they should be rewarded for their efforts. Occasionally small indies will let you keep this out of your deal, so it is something you may wish to consider. Having said this, the ever increasing sophisitcation of people in the industry is making it harder to keep this income stream out of a deal.

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Tip: If you are a co-writer of a song, make sure your real name is listed in the cue sheets and with your performing rights organisation. I’ve come across acts that have insisted on having the income flow to an inanimate object, namely the band. Ok, but what about ten years from now? The band is defunct, and there is still money being paid to this inanimate object in Boston. Meanwhile, you’ve moved to Omaha. Way to go! Guess who’s not getting paid for their song that appeared in Spiderman?

SECTION 4

As a songwriter – and first publisher of your songs – you will receive a check from the Performing Rights Organization you are affiliated with (e.g. BMI, ASCAP, SESAC, SOCAN, PRS, etc) on a quarterly basis for radio and television airplay. This can be substantial in this day and age because even the smallest television show may find its way into 50-100 countries and they all receive money from local broadcasters for the right to air the music in the shows that they are broadcasting.

While my life does centre on Music Supervision, I have also placed some of my own compositions in films and I’ve been amazed to see payments from such unlikely places as South Africa and Holland for my participation in these shows.

Your check per show may only be for one hundred dollars, but if you can do this every quarter and have ten songs out there, as you continue to license more and more songs, and it happens year after year…well, this is one very real way that you can make money in film and television!!

performing rights

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SECTION 5

Deal Memos

Once a negotiation has taken place (we’ll get to the negotiation in a moment!), which is typically done by telephone or email, a “deal memo” will be created by the Music Supervisor and emailed (though occasionally faxed!) to the copyright holder for signature. All of the relevant information regarding the show will be included, as well as everything that the two parties have agreed on. This will act as a blueprint for the long form agreement. A deal memo will act as a binding document until either the Music Supervisor or Legal Affairs department of the production creates this long form agreement.

You should read this deal memo over carefully to ensure that everything discussed and agreed to is included. This is your opportunity to make sure you agree to the terms of the deal in its current form. It will show all the terms, territories, money, uses, etc.

Something to note here is that in the fast paced world of television, it is not unusual for a deal memo to be the only thing that exists to show that there is agreement between the licensing parties before the show actually airs. It might take another six weeks before you actually see a longform agreement.

paperwork

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If you were to agree to a deal by phone and then refuse to sign the deal memo and scan/fax it back, you pretty much ensure that you will never do another deal with this Music Supervisor. And, if you were to sign the deal memo but refuse to sign the longform agreement on the basis of some kind of change you now wanted, which was different from the signed deal memo, then God help you. You will absolutely ensure that you’ll never have anything licensed from this production again, and chances are that everyone will blab to anyone who will listen to not deal with you in the future. All in all, you simply don’t want to try and change the terms of a signed deal memo. It’s not good for business.

Long Form Agreement

Once a deal memo is signed back to the Music Supervisor, the next move will be to create a long form agreement. This multi-page agreement can be as short as two pages, and as long as ten. It really depends on the legal finesse and hyperactivity of the Film Production Company. My long form agreement is usually two pages long, and it takes all the simple language of the deal memo and fleshes it out with tons of legal language. It’s purpose is to clearly state that you agree that you control the Sync right or Master, that if you don’t you will be sued, and that certain rights have been granted by you to whom, and for what money.

Typically, this long form agreement will be created by the production, then mailed to you in triplicate for you to sign the last page of each one. You will then mail back all three copies to the production company, and they will then send you back one

fully executed (all required signatures included) agreement along with a check where required.

You will want to hang on to this fully executed agreement for your files forever, particularly if there are any options which the Film might wish to execute in the future with you.

One thing to note where long form agreements are concerned is that it can take up to two or three months to receive them in the mail. You must remember that lots of paperwork flies back and forth when a Film is being produced and your agreement is probably one of fifty being created. Consequently, if you do license your track and you are owed $1000 for the right to use, you should not expect to see the actual check for a couple of months after your initial phone call and deal memo stage.

Tip: If you demand payment within 30 days of a semi-executed longform (i.e. you’ve signed it and sent it back), as a dealpoint in the initial negotiation, you may get paid sooner! Having some clout in the matter, e.g. a song everyone really wants in the film, is a big help to adding this stipulation.

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CHAPTER 5

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deal points

SECTION 1

While the Film will want to pay the least money for the most Rights it can get, you most likely would like to get the most money while giving the least away. This has everything to do with supply and demand, not unlike anything else in life. With that in mind, here are the things you need to know and negotiate on when licensing music, whether you are representing the Film, the Master, or the Sync Right.

Before we start, please keep the following in mind; Dealing with people who are easy to deal with makes dealing with them over and over a pleasure. Alternatively, difficult people are dealt with

only as often as they have to be dealt with. I expect you feel this way in all things in your life, whether its eating at a restaurant or booking a club date. The following terms, and the comments that I make about how to limit exposure and maximize clout/return, have to do with how “hard” you want to play it. Much of what is discussed below is for the muscle of a record company who can afford to walk away from a negotiation because the demand for their recording or song is so high that another better deal is just around the corner. With that in mind, read on!

general

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SECTION 2

The term means “how long is the license for?” Is it for five years? Ten years? Or is it in perpetuity ? All film and television shows are under increasing pressure to buy the longest term possible, which makes sense from their point of view, but you would typically like to limit the term of the license to five years. You can then allow for the Film to negotiate an “option” for additional years. It might be that additional five-year terms might cost the Filmmaker the same fee again in five years. Typically, this “option” will need to be exercised by the Filmmaker sometime before the initial term runs its course.

At least one Major Publisher contact of mine bases his math on 110% of the current term for an extension of the same length. Another way of doing it is to allow for five years in the core deal, with an option to perpetuity, based on as much as 200% of the core deal.

Your ability to negotiate on the term is only going to happen when you have some clout, and the film cannot afford to buy the perpetuity term now, but is insistent in their making use of your music. (Hey, it happens!) You can give them a break now, knowing that you will receive more money five years from now, so long as you put it in your daytimer now, and the company is easily found five years on.

Having said the above about limiting the Term, it really is more likely that you will need to do your deals “in perpetuity”. Literally every one of my clients demands it, as that is how they sell their shows.

term

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SECTION 3

Perpetuity is a powerful word/term you will hear much about when negotiating with a Filmmaker. Perpetuity means forever. When a filmmaker has the need to license forever from you for a one-time only payment, he will demand perpetuity, as opposed to five or ten years.

Frankly, this is the length of term of choice for most productions today, and I would advise getting used to agreeing to it if you wish to license your music into film and television.

perpetuity

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SECTION 4

The question of territory is one of where can the film be presented, as in which countries. Most common is the request for “the world” or the increasingly popular “the universe”. It may be that the film will never be shown outside of America, but most productions today are for export globally, so it is highly unlikely that a Filmmaker can license for anything less than everywhere on the planet.

If, on the other hand, someone wants to license your song and you are convinced they are not paying you enough for the privilege, you can certainly stipulate that certain territories are not included. Perhaps you don’t include America itself, unless a further fee, written up in the form of an “option”, is paid.

Many independent films from Canada are made without a benefit of a US distribution deal in place, and it is common for a financial “bump” to come into effect upon release of the film in America. On a license that is done for a small act on a large American Indie Label, the fee for “the world less America” might be $3500, while an American use would entail a further payment of $5000.

Tip: It is also possible to get a “bump” based on the film’s performance at the box office. I’ve done loads of deals where the license is done at USD$1000, plus “an additional payment of USD$1000 upon North American Box Office of 2M as reported by Variety magazine.” If your act is unique and important to the film, this is not unusual to add in to an agreement.

territory

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SECTION 5

Once upon a time, this was never much of a problem, since there weren’t many ways you could view a movie, except in a movie theatre (otherwise known as “Theatrical Use”). But then came television, followed by cable, then video, Laserdisc (do you know what that is?), CD-ROM, DVD, Web TV, Internet, DVD, and who knows what technology will come next. New terms are created like “All Broadcast Media” as catch-all phrases in place of more dated terminology like “All Television”.

Another interesting phrase for media use is “All Free Television”, which some Major Record Companies and Music Publishers

continue to try and use. This means anything that does not have subscriber fees, like Pay-TV, though some people try and make this mean Cable TV as well. Either way, this type of limitation is no good for a Feature Film, since most films have a “window” after their Theatrical run on such Pay TV stations. And, let’s face it, the entire playing field being populated by screens and devices from Apple, Google, Netflix, along with use of streaming, the cloud, downloading, et al is making everyone in music licensing crazy in terms of breaking out media.

media

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Filmmakers are in need of the broadest rights possible in order to exploit their picture. But this comes at a cost for filmmakers when dealing with the Major Record Companies. Over the last several years, I have spent a great deal of time explaining and debating new technologies as well as old to both sides of the table. The Majors certainly want the Filmmaker to pay more for the privilege of using their music in all these formats and the Filmmaker needs to be able to exploit on every screen imaginable.

Typically, the film needs the Theatrical right and the entire trickle down effect of all other media that it will inevitably appear on. But, if the filmmaker knows his television show will never appear in a theatre, he will ask for “All TV” or “All Broadcast” or some such term, along with the rest of the formats.

It should be noted, though, that filmmakers in their pursuit to have the right to use your work in as many formats as possible, will often request rights they will never use. It is up to you if you want to allow them to use your music to make money for their film in all these new platforms. The argument of many Major Labels is that as new delivery systems bring additional profits to the Filmmaker, say through re-issue of older films on DVD, that they should share in the new profits as they did in the old. It is an

ongoing argument, which typically is settled with a combination of money, diplomacy, need, and clout.

Having said all of the above, chances are very good that any you do will come with a rights line saying something like “All media now known or hereafter devised”. This will let the filmmaker sell their film for viewing on any device, including solar powered embedding in someones brain. Believe me, its coming.

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SECTION 6

It’s not unusual for a budding filmmaker to make short films to show only at Film Festivals. Typically, these filmmakers are creating these films as an entrance into the world of filmmaking and/or as a calling card for more work in the future. These films require only what is referred to as “Festival Rights”.

This is the right to include music in showings of the film where no profit is made. In these instances, filmmakers will wish to pay little if anything to the copyright holder for the right to use the music. Virtually all the Major Record Companies and Music Publishers stipulate this as the only right granted for the use of the song, and specifically forbid any profit to come from

performances of the film itself. The right to show the film in schools and libraries will typically be included in this right.

Festival Rights may also be part of a larger agreement that will then include options for the right to show the film either theatrically or to be broadcast on television. In such a case, the filmmaker will ask for a “step deal”, where it will be pre-negotiated what costs will be borne by the filmmaker if the film does, in fact, go to commercial theatres or television.

festival rights

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Tip: For all intents and purposes, without your granting to the Filmmaker the required Rights in the way that he needs them, the filmmaker will decide to pass on your track and move on to somebody else’s track. Your best recourse is always to try and get more for your money first, and limit the rights you agree to giving them second.

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SECTION 7

Trailers are the promotional advertisements for either feature films or television shows that typically air in theatres and on television. Sometimes these trailers appear at the beginning of a rented video and they last one to four minutes. Other times they appear on the pay-per-view preview channel on television, or on the various movie networks on upper tier cable television. And, increasingly, they are all over the internet.

You will typically have agreed that the producer can use your music in the trailer, at least as an “in-context” use. This “in-context” use means the ability to use the music as it was originally intended, perhaps under the dialogue in the bar scene where the jukebox was playing your track.

Another type of use is the “out of context” use. This is where the producer wishes to take the music, which was on the jukebox, and use it across other scenes, none of which you originally had licensed the music for. Major Record Companies and Music

Publishers always ask for more money for “out of context” use, and so can you! How much money? I’ve licensed pop hits for USD$10,000 “per side” (“per license”) in a film, where the publisher wanted another USD$5,000 for this “out of context” use. Frankly, I can understand why people think this should cost more money. The fact is, the producer wouldn’t be asking to use the music in this “out of context” way unless they thought it added some additional value to the trailer.

Where indie music is concerned, the right to use your track in an “out of context” use is the kind of thing that might show up in your long form agreement without your previously having agreed to it. You can try and fight this if you like, but you might actually be thrilled to think that even more people than would have originally heard your track in the actual scene use are now going to hear it. It’s your call. You can either ask for more money at this time – which is reasonable – or just agree to it because it can help to promote your career even more – which is also reasonable!

trailers

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SECTION 8

The term “Videogram” is a catch-all term that encompasses VHS (remember VHS?...My, how time flies!), and DVD, and ostensibly any other format that a home consumer can rent or purchase at stores like Blockbuster. Poor Blockbuster, they entered bankruptcy recently. Something must be going on in the video rental business!

Home Video and DVD have become so popular that the larger life for most films is at your local video store. Consequently, filmmakers are always looking for a “Full Videogram Buyout” when they license. Such a buy out allows the Filmmakers to manufacture as many DVD’s for sale and/or rental as they like without having to pay further amounts to you. A delivery requirement of Filmmakers in the modern age calls for them to deliver a film without any further money due to third parties. Delivering such a Full Videogram Buyout in their music licenses can be difficult financially for a Filmmaker because when they deals with the Major Record Companies and Music Publishers, this Video Buyout can add 100% to the cost of licensing.

Let’s say I’m going to license a pop hit for USD$10,000 for “all broadcast” in “perpetuity” for “the universe”. The video buyout might cost anywhere from USD$7,500 to USD$10,000 more!! This can get expensive very fast when you are looking at licensing fifteen songs for a film (if not fifty songs!).

Another way to look at dealing with videogram is to have a “per unit” rate on a “rollover” basis. It is typical that I might agree to a “$0.10 per unit fee on a 10,000-unit rollover basis” for a pop hit. So, as an additional cost, either in the core deal or as a option to be taken at a later date, the Filmmaker will pay USD$1,000 for the right to make 10,000 videogram units. This can be as high as $.15 or $0.20 per unit, but I typically try to hold firm at $0.10. Once the Filmmaker has sold the 10,000 units, he can take another 10,000 units for another $0.10 per unit.

But lets face it, hard copies in music are dying, and so are hard copies in the film business. On demand is growing, iTunes rentals/purchase are growing, and even Netflix is modifying their business model to reflect the virtual world of today.

Tip: If you are an indie artist, the Filmmaker will expect you to allow for the videogram buyout to be included in the core agreement at no additional charge to them. Once again, this is a matter of your negotiating power.

videogram buyout

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SECTION 9

As we have moved into the 21st century, there are even more potential ways to license music. It’s quickly become apparent that licensing for “home videogram” may not be sufficient language to allow for new technologies beyond VHS (did I ask you what a VHS is?) and DVD. Consequently, film companies now ask for rights that include the famous “All media now known or hereafter devised”.

The big publishers hate giving these rights when dealing with film companies. The copyright owner would prefer to have the film company come back in future years to ask anew for a license to reflect new revenue streams that the film might have, much like Audio CD’s enticed people re-buy their entire record collection.

Film companies hate not getting these rights. Whether these rights are granted is a matter of negotiation. My opinion of this is that one who licenses must be able to affix the film’s elements to whatever delivery mechanism is available. I further believe that the large Music Company’s attitude to keep such language out is simply a method to ensure further payment when new technologies come along. You could easily subscribe to their thinking, so long as the licensing party buys your argument!

The fact is, a film needs every possible window available to it, both now and in the future. Lack of these all encompassing rights are killing deals today.

new technologies

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SECTION 10

To have a “Most Favoured Nations” clause in your agreement is pretty much always a good thing if you can get it. A Most Favoured Nations clause means that you will be paid “no less than any other party”, either the matching right on the song you own with the master, or with all other licensed music in the film.

Tip: The term Most Favored Nations is typically shortened to “MFN” when in discussion, as in “I’d like our track to be MFN with all the other music in the picture”.

most favored nations

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SECTION 11

You should always insist on a “credit” to appear in the closing credits of the film. You will need to supply all relevant information for this, which typically reads title, by so and so, performed by such and such, courtesy of the Record Company who licensed the Master, with a copyright notice from the Music Publisher. No one should have trouble with that, and it is seldom a deal-breaker.

Receiving credit in the tail credits of a picture works better in a film than it does on television. You may have noticed broadcasters now resize credits on television into a tiny box in the corner, allowing them to advertise an upcoming show on its channel. If you can actually read those credits as they fly by on the television screen, you have better eyesight than I do!!

credit

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SECTION 12

The great bonus of promoting the art and craft that is the music you create, and the buzz of telling your friends to watch CSI:Miami next week because your song is on it, is that someone is probably going to pay you some money for the privilege. Sometimes it will be a lot, and sometimes it won’t be much at all.

When I began learning to be a Music Supervisor, I asked everyone for the “rates” that they charged. I quickly found out that standard rates don’t exist. Like so much in life, the price paid is very much a matter of negotiation, timing and opportunity.

While it is not unusual for songs to be licensed in the six figures for a major use in a feature film, it is more typical that a well known Master and Song can be worth $20,000-$50,000 “all in” as in the total fee paid, typically 50/50 between Master and Sync. Likewise, tracks can be licensed really cheaply, as in a few hundred bucks each.

For our purposes, let’s say you are signed to an indie label that has had national chart action and the odd Internet chart hit and there is a staff of 20 people working for the label nationally. You can probably count on anywhere from $5,000 - $15,000 for the all in fee

money

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on your track, Master and Sync included, for the broadest rights possible (meaning this is your one time payment for the required licenses). The record company that owns your Master probably splits that 50/50 with the artist, while the publisher of your song probably splits the Sync Fee 50/50 with the artist as well. That’s assuming you’ve recouped, but that’s another story for an upcoming document called “Record Contracts” (not here!).

In the case of a true indie artist, where the artist has released a record of his or her own compositions, and the artist is pretty much unknown, it is most likely that somewhere between $1,000 and $5,000 will be the dollar figure, and the film company will probably have asked for all rights in perpetuity, etc.

If you have recorded an album which is only available in local record stores, you are probably looking at as little as nothing and as much as one thousand dollars all in.

Meanwhile, one should note that a Cole Porter song performed by you may reap the Publisher of the song twenty thousand dollars, while you may be stuck with a thousand bucks for your otherwise unknown performance of the song.

In the real world of licensing indie music for a television show, I’ve actually asked completely unknown acts to give the track to the show for free, particularly when the show has little money for licensing. And, as mentioned above, it is not unusual for similar occurrences at just a few hundred bucks for everything.

Obviously it’s a little weird to think a show might use your song for free, but some shows get made for very little money and have very little upside potential. The ongoing relationship you

might create by your agreement to let a Filmmaker use your song for free will hopefully come back karmically to assist you in the future…ok, maybe not, but I have seen it more often than not in my dealings with people who understand that a good turn now will deserve a returned favour later.

I’m constantly amazed at how little is paid by the biggest American television shows for songs. Their feeling is that you are lucky that they are even speaking to you at all. While I don’t always agree with their position, I can sometimes understand their way of thinking. There are simply many more artists who want to have their music licensed than there are places to license it. Don’t let this discourage you!

Tip: The idea of receiving “nothing” for the use of your track in a film may not be appealing, but some very small films have no money at all in their music budget. And it usually follows that such tiny films will play at a festival or two, get a broadcast license on a movie channel, and die a death of obscurity. It’s hard to blame the Filmmaker for liking your music but not having any money. Yes, it’s a touchy situation, but my advice for young artists is to say yes. The credit on your bio alone is enough for people to look a little more seriously at your band.

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SECTION 13

In a nutshell, whoever is licensing your music for their film or television show doesn’t want to limit their rights to the way they use your music at all. They want unencumbered rights to utilize your music as affixed to the picture. You, on the other hand, would like to limit the rights granted as much as possible. So, as I’ve stated above, breaking things into options as much as possible is best for you. Having said this, the ability to break out options in your agreement is as much a sign of your power in the negotiation as anything else.

If you are an indie act then the chances of your limiting the rights granted to a film is unlikely. If you control copyrights in top

selling Songs or Masters, you will have the power to break everything into an option or to demand more money for the privilege of taking so many rights in the License.

Tip:You can simply ask for a Most Favoured Nations clause, perhaps ex-big time rock star uses, to ensure that you are not getting paid less than other artists of your stature.

limitations

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SECTION 14

Every film and television show is supposed to have a “cue sheet” created for it that follows the film around the world. This piece of paper indicates to the broadcaster and local Performing Rights Society what music has been used in the show. It not only shows all the background music/underscore which a composer has created, it also lists all the source music which shows up on the jukebox, the songs the marching band played, or any lyrics sung by someone onscreen.

The name of the song is listed, along with who wrote it, who the Publisher is, which Performing Rights Society the writer belongs to, how long the song was used for, and whether it was a “feature” use, meaning the actors could “hear” the music themselves (e.g. on a car radio), or simply a “background” use, meaning the use was underscore only (e.g. the actors could not hear it).

If the film does not have an accompanying Music Cue Sheet, there will be no way for the Performing Rights Society to know what music was in the film, and as a consequence, you will never receive performance royalties for the use of your music in the film.

Tip: Always demand a Music Cue Sheet for your files when licensing your music in a film or television show! While this doesn’t mean the Cue Sheet is travelling the world with the show, it at least confirms that one exists! That way, at least you can attempt to let the Performing Rights Society in a foreign market know about the airing of the show in their market.

Tip: If your music is used in a “featured” manner, you will receive considerably more royalties from your Performing Rights Society than if it was a “background” use.

cue sheets

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As you have probably noticed, the soundtrack album as a marketing and sales tool has been huge for many years. From 1995 to 2005, and in the blink of an eye, Soundtrack deals could go into the hundreds of thousands of dollars for big films. Without getting too myopic on the topic, suffice it to say that most of us would probably love to have one of your songs on such an album, especially one where we knew someone like Lady Gaga or Justin Beiber was involved!

Sadly, most soundtrack deals have gone away, just one more victim of the physical music business troubles. Yes, there are still Twilight soundtracks, but these are increasingly the exception to the rule.

In spite of any claims of its impending death, the negotiation to be included on a soundtrack album is completely different than licensing for inclusion in the film or television show, but you may wish to ask about it at the get go when you are negotiating.

While this guide is not meant to be a how-to on dealing with soundtrack releases, there are some things to pay attention to. These include the territory and term of the agreement. It might only be released in the UK or Japan, and the rights may only be for seven years. Alternatively, the company releasing the soundtrack may simply say it’s for the world in perpetuity. Also,

the advance that you may receive for the use of the recording is the largest point to cover. And, as a publisher, you will be due mechanicals on the pressing and sale of the actual CD’s. The 100% rate is a constantly rising set rate by the music industry, and as of 2010 it is just over $00.09 per unit. You may note that the request (demand!) of the company releasing the CD may be for the publisher to accept a ¾ rate instead. I’ve always wondered why such a ¾ rate is allowed, but its rampant in the business.

Tip: You may want to ask that if there is going to be a soundtrack album that your music must be included on the soundtrack, even if you don’t get a great advance for its use. The worst someone can say is no, and you may be pleasantly surprised.

soundtracks

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CHAPTER 6

65

negotiating

Once a Filmmaker decides he or she would like to license your track in their film, you will receive a phone call from the Music Supervisor (MS), and the conversation will go something like one of the following conversations;

SECTION 1

CONVERSATION PERTAINING TO AN UNKNOWN ARTIST

Music Supervisor (MS):! Hi, I’m the Music Supervisor on the film “Pickup Truck From Hell”, which is in post-production in New York right now. The producers are interested in licensing the Big Boys performance of their song “One Horse Town” for a Featured Source use in a pool hall, where someone puts a quarter in the jukebox and then a big fight plays out. The use is for about ninety seconds. Do you control the Master and Publishing to this track?

YOU:! ! Yes I do.

MS:! Fine. We are interested in rights that include all media now known or hereafter devised, all in perpetuity, and for the world. We can give you one thousand for the Master Use, and another one thousand for the Sync Right. Would you be interested in this, and if so, can I send you some paperwork on this?

YOU:! Well, I’m thrilled that you’d like to use the track. Before we go on, could I ask you to tell me a little more about the picture?

MS:! ! (MS gives synopsis of story)

YOU:! Are there any stars in the picture that I’d know about? And it would be great to know about the distribution plans as well.

MS:! This is an indie picture which will play the Film Festivals to find a distributor, but the producers have sold a secondary window for television with Channel Four in the UK, and TBS in America. It stars Gary Busey.

YOU:! This all sounds very exciting. I must say, though, that the money is a little low, considering that you want all those rights. If you could find another thousand dollars in your budget for this, I would certainly appreciate it, and we could certainly have a deal.

MS:! OK, let me go back to the producers and ask them what they think. I’ll get back to you.

YOU:! I’m looking forward to hearing from you.

In this case, it is typical that the Filmmaker will tell the Music Supervisor to stick to his guns and tell the copyright holder that this is all the money there is, and that he should “take it or leave it”. What would you do? I would advise saying yes, and take the money!

conversation 01

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SECTION 2

CONVERSATION PERTAINING TO UP AND COMING INDIE ARTIST WITH STRONG MANAGEMENT A PUBLISHING DEAL IN PLACE

MS:!Hi, I’m the music Supervisor on the film “Pickup Truck From Hell”, which is posting in Vancouver right now, and the producers are interested in licensing the Big Boys performance of their song “Lover Man” for a Featured Source use in a pool hall, where someone puts a quarter in the jukebox and then a big fight plays out. Do you control the Master and Publishing to this track?

YOU:! Yes, we own the Master. And, as you may know, this song has been really good to us, and we’ve had significant airplay nationally for this song. In fact, on the basis of this song, we have recently signed a Publishing Deal with Big Fat Music Publishing, one of the worlds largest publishing companies.

MS:! That sounds great. I will speak with my contact at Big Fat Music Publishing later about this. In the meantime, I have $10,000 as an all-in fee budgeted for this track, and we’re looking for all Rights, including a video buyout, all in perpetuity. We’re also thinking about doing a Soundtrack Deal, and we will want to put this track on the album. I will need to be assured that you have no problem in general with such a soundtrack, and once I know that, I’m prepared for us to deal in good faith with this particular issue

at a later time. For now, can we do the Master Use License for $5,000?

YOU:! Well, the first thing I’ll say is, the worst we’ll do is MFN with Big Fat Music Publishing. But perhaps I can start things off with what I’d like to see and we can go from there. Let’s leave a soundtrack aside for the moment and discuss the license for the film itself. The term is too long for starters. And I’m not thrilled with the video buy-out. So, here’s what I’d suggest, and I think I can convince the Publisher to go along with this. We will license the song to you for ten years, with additional ten year options at $5,000 per option, payable within seven years of the original license. Also, we are only prepared to let you have 10,000 units of Video in the core deal, and after that we’ll need a 10,000 unit rollover at $0.10 per unit. Of course, as I said earlier, all of this is in line with what they’ll have to say on the matter. How does that sound?

MS:! This sounds quite expensive to me, and the film doesn’t want to do paperwork on this track in future years. Their delivery requirement to foreign distributors calls for them to deliver all aspects of the film in perpetuity. So, I really need all video and perpetuity now.

conversation 02

67

YOU:! Let’s see if I can help you. It’s going to cost you a little more though. I think if you can bring a total of $16,000 to the table now, meaning our Master Use License will now be $8,000, then we’ll have a deal.

MS:! That sounds good. In return though, I’ll ask that since you own the Master outright, that we agree to the use of the song on the soundtrack, so long as we MFN you with all other tracks, except opening and closing credit tracks, and any track which the soundtrack includes by an artist who has reached Gold record status on any of his or her last three records in America.

YOU:! Ok

MS:! I’m going to call the Publisher on this right after getting off the phone with you, and we’ll talk later.

YOU:! OK. And I’m sure the Publisher will call me with their opinion on the matter. I will tell her that I’d like to do this.

MS:! Once we’ve gotten agreement from all parties on this, I’m going to email you a deal memo with the terms of our discussion for your signature on it. I’d like you to sign the deal memo and send it back to me for my files. If we proceed to license the song, I will send you a longform agreement in triplicate for your signature, upon which we will pay you the licensing fee.

YOU:! Fine. I’ll look forward to it. Bye.

As you can see from the above examples, if you feel that it is worth your while to negotiate and risk losing the opportunity, it is certainly your right and privilege. I would simply caution that if your music is fairly standard issue in nature, say up-tempo blues band type material, you might actually negotiate your way out of the use. This is something you may have to do a fair bit of soul-searching to figure out.

I know people who have licensed their more unique indie music enough times to discover that there is a market for their material in the medium, and they understandably have more clout in the matter. Likewise, I’ve been through several negotiations where I’ve simply had to take a pass on the track because the copyright holder wanted too much for the use.

Tip: For every “option” written into the license, and just about anything can be an option, there will be a price attached. If you are fortunate enough to have something that is in demand, you could see several payments over the years for various uses. More typically, though, you will receive one chunk of cash, and then waiting patiently every quarter to see what kind of performing rights you have made!

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CHAPTER 7

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closing

SECTION 1

There’s never been a more exciting time to have the world discover your music. The opportunity of the independent spirit is alive and willing to find exciting music to include in its films. Every year some new band is introduced to its fans by way of a song in a movie or TV show. Every year an artist looking for an additional media hook for his or her career uses the fact that he or she licensed music into a film or television series for promotional spin. Every time a song appears in a television show it generates income for songwriters and Music Publishers.

So, I hope this guide has been of some assistance to you. I have a deep appreciation for your desire to have people hear your music. Having written and recorded songs that I’ve wanted the world to hear, I know some of what you are going through.

We both know that you need to take action in order to see your dreams come through. Your decision to read this guide is but one of several things you are doing to make it in the business of music. Best of luck to you in your quest!

final comments

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SECTION 2

Ron Proulx owns music supervision company Arpix Media, and has music supervised over 100 films and 800 episodes of television since 1994.

Prior to music supervision, Ron was a songwriter and recording artist. He continues to play music for fun, including improvisational piano, songwriter guitar, and is trying to learn to play the tenor and alto saxophone.

Additionally, he is writing a musical set against the topic of death and is aware that its arrival is inevitable.

Ron has also written the ebook hownot2suck@businessnbeing. It is designed as a virtual coffee table book for people just beginning their careers and adult lives. It is geared towards those interested in balancing work life with personal life. It’s part information and part artwork. It is available for purchase at hownot2suck.com. The twitter feed is @businessnbeing.

You can also find Ron @ronproulx or @arpixmedia.

the author

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SECTION 3

thanks

72

Ron Proulx is the founder of Arpix Media Inc.

201-670 Richmond Street WestToronto On Canada M6J 1C3

www.arpix.com

© 2012 Arpix Media Inc.all rights reserved.

please do not copy the contents of this bookwithout prior permission

ISBN: 978-0-9828705-2-5

Special thanks are due to those who have helped in making this guide available, including my current and previous staff at Arpix Media, including Kyle Merkley, Chris Robinson, and Andrea Higgins, as well as my close friend Moira Nordholt, and also to all early supporters of this endeavor, including Alister Sutherland and Tony Tobias.

And finally, to all Arpix clients over the years who have insisted that this knowledge be rock solid and current, I always appreciate the push!