Songs in movies, TV shows, and ads: How the licenses work

OK, as little as I want to do this, and as much as the focus of my work (and this blog) has sort of shifted to talking about business generally (as opposed to the so-called “music business”), I want to write this out (…again… I have written a couple books on it), so that I can just direct people to it when I’m asked.

I get asked this question (or a variant on it) more than just about any other music business related topic. I get it; it ain’t easy to understand, but it’s not that hard, and, understand it you must.

Also, as much as I believe that the “music business” is dead, and it’s all just business; the one thing that is unique to the music business is how (c) is handled. That’s not to say that you have different IP interests in music than in other businesses; you don’t. Rather, there are just various “terms of art” that are unique to the music business.

So…here we go: an attempt to explain the rules and licenses around songs being used in films, tv, and ads. Let me know if you have any questions; I’ll try to answer them in the comments, and maybe this can be an evolving document that we can reference.

Any time a song is used in a film, tv show, ad there are two licenses required:

    1. A synchronization (synch) license: This is a license the producer of the above must obtain from the writer of the song (if the writer has assigned her (c) to a publisher, the producer must go through the publisher).

    This gives the producer of the above the right to synchronize the (c)’d song (not the recording of the song, but the underlying composition – lyrics and melody) with the moving images in the tv show, ad, movie.

    2. A master usage license: the producer of the above must negotiate a license with the person who holds the (c) to the recording of the above underlying composition (i.e. the version of the song found on the CD).

    Typically, the master usage holder is the label. If there is no label (i.e., it’s self-released by the artist), then the producer of the above negotiates directly with the artist who self-released.

    Thus, in the case of an artist who has not assigned their publishing rights to anyone and self-releases their own record, the producer of the above negotiates “both sides” (i.e. the synch and the master usage) with the artist herself.

    If the artist has done a publishing deal and a record deal, the producer negotiates with the publisher for the synch rights and the label for the master usage rights.

    Unlike with mechanicals (i.e. the payment labels make to songwriters for the rights to mechanically reproduce a (c)’d song on the album the label releases), there is no compulsory license for either synch or master licenses. That means that the producer must negotiate both of these licenses, and either the master holder or the publisher can deny the request.

    In reality, the producer will approach one of the parties (the label or publisher – typically, publisher first – see below for why), and see if they can get the writer interested in the synch (most writers, of course, are falling all over themselves to have their music used for whatever piece of shit is being sold on any given day). They (the producer) gives them an offer, and then tries to shift the burden of the master clearance to the writer/publisher. At that point, they (both producer (or his music supervisor lackey) and the publisher/writer) push on the labels to clear the master side (most labels, of course, are falling all over themselves to have their music used for whatever piece of shit is being sold on any given day), and a deal is struck.

    The fee is divided (typically evenly) between the publisher for the synch rights and the master holder for the, er, master rights.

    Sometimes, the publisher will want to do the deal, but the label doesn’t. In this case – as you saw, for instance in the Sean Penn exploitation vehicle I am Sam – the publisher for the Beatles cleared the synch rights for the song, but the label wouldn’t make a deal for the master usage; therefore, the producers used different masters (i.e. they had artists cover the songs).

    It doesn’t work the other way; if the publisher won’t grant the synch license, the party is over – this is why producers go to publishers first; they’re the dispositive party.

    Importantly, in the US, when the Ad or TV show or Movie is publicly performed on TV (i.e. it’s broadcast), a performance royalty is generated for the writer and publisher of the song (often the same person). The performer (i.e. the person on the master) sees none of this performance royalty. Do note, that no performance royalty is generated from public performance in movie theaters, as they are (wink, wink, nod, nod) exempt from paying public performance royalties..

    Hope this helps. Leave me questions in the comments.

    xo

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  1. Eric Stone’s avatar

    Thanks a bunch for this.

    I've seen a few deals from cable channels that seek a blanket license. I think it might be beneficial to cover this sort of deal.

    Reply

  2. George Howard’s avatar

    Thank you, Eric. I will address blanket licensees and works for hire
    shortly.

    best,

    George

    Reply

  3. George Howard’s avatar

    My pleasure. You might be referring to deals from places like MTV. For shows
    like Real World, etc., they'll want – typically gratis – a license that
    allows them to synchronize music with these shows.

    Labels and publishers do these deals, because they feel that there's
    promotional value.

    In my experience, that promotional value is nominal at best.

    Of course, for the writer/publisher, there may be some small performance
    royalty generated when these shows air.

    And – while I didn't talk about this in the blog post – if the shows are
    shown online, a different type of digital performance royalty comes into
    play. This pays the performer and the master holder. It works essentially
    like ASCAP and BMI (which, by the way, still pay the writer when their work
    is publicly performed online), but it's administered via a company called
    SoundExchange.

    best,

    George

    Reply

  4. George Howard’s avatar

    Jeff,

    I'm so grateful you weighed in. I'm of course familiar with you and your
    brother's work. I believe we've met/spoken on the phone, etc.

    To all readers: I can't recommend Jeff and Todd's book that he references
    enough. Truly the definitive voices in the field.

    Thanks,

    George

    Reply

  5. George Howard’s avatar

    Butch,

    Thanks for your comment. However, you logic is fatally flawed. You say that
    you've sent your music to all these places without a response.

    I can 100% guarantee to you that you will continue not to get a response,
    and I can also 100% guarantee to you that it has nothing to do with your
    music.

    You – and all others – must immediately stop sending unsolicited music to
    labels, publishers, music supervisors, etc. IT WILL NOT WORK.

    Instead, begin building and developing direct relationships with real,
    actual fans. Do this by playing live (if you're only a songwriter, and you
    don't play live you have two options: the first and best is to work on your
    performance ability and get out there; the second is (ala Bernie Taupin,
    Robert Hunter and others) find a great performer who will get out there and
    perform your songs.

    Then, leverage the Internet. Here are some ideas:

    http://www.9giantsteps.com/?p=1111

    please read the above and try it diligently for 6 months. At that point, I
    am confident you will be far better off than you are today, and far closer
    to having your music being requested for usages.

    “Requested” is the key word. You have to build this buzz, and then – and
    only then – will people consider your work for their projects (TV, ads,
    movies, etc.).

    Sitting around mailing stuff to people is a loser's game.

    Importantly, doing so will also, unjustifiably, convince you that your music
    is good when you're met with the inevitable silence this approach results
    in. Judging the merit of your music based on whether or not people who
    you've sent an unsolicited demo to respond is not the right measurement. And
    if you do so, and it stops you from creating, that's a tragedy.

    best,

    George

    Reply

  6. George Howard’s avatar

    Paul,

    My pleasure. As Jeff says above, there are a lot complexities to these
    licenses. Video rentals/video sales/streaming, etc. are all complexities and
    all have to be negotiated.

    best,

    George

    Reply

  7. MaddScatter’s avatar

    Mucho Intresting….howevah, how do one get dem movie, ad, TV dudes/chicks to know aboud da musik I make up?

    BB MaddScatter

    Reply

  8. George Howard’s avatar

    Thanks for your kind words.

    In terms of how you get them interested, I'll refer you to a response I made to a prior commenter. I've pasted it here:

    Thanks for your comment. However, you logic is fatally flawed. You say that
    you've sent your music to all these places without a response.

    I can 100% guarantee to you that you will continue not to get a response,
    and I can also 100% guarantee to you that it has nothing to do with your
    music.

    You – and all others – must immediately stop sending unsolicited music to
    labels, publishers, music supervisors, etc. IT WILL NOT WORK.

    Instead, begin building and developing direct relationships with real,
    actual fans. Do this by playing live (if you're only a songwriter, and you
    don't play live you have two options: the first and best is to work on your
    performance ability and get out there; the second is (ala Bernie Taupin,
    Robert Hunter and others) find a great performer who will get out there and
    perform your songs.

    Then, leverage the Internet. Here are some ideas:

    http://www.9giantsteps.com/?p=1111

    please read the above and try it diligently for 6 months. At that point, I
    am confident you will be far better off than you are today, and far closer
    to having your music being requested for usages.

    “Requested” is the key word. You have to build this buzz, and then – and
    only then – will people consider your work for their projects (TV, ads,
    movies, etc.).

    Sitting around mailing stuff to people is a loser's game.

    Importantly, doing so will also, unjustifiably, convince you that your music
    is good when you're met with the inevitable silence this approach results
    in. Judging the merit of your music based on whether or not people who
    you've sent an unsolicited demo to respond is not the right measurement. And
    if you do so, and it stops you from creating, that's a tragedy.

    best,

    George

    Reply

  9. jeffbrabec’s avatar

    Thanks for your note george. I really appreciate your thoughts re the book as we have tried to give a very realistic view of the business so writers and artists will be prepared when the opportunity happens. All the best and keep up the good work.

    Jeff

    Ps. I'll email you the aba article on tv licensing if you like.

    Reply

  10. George Howard’s avatar

    Jeff,

    My pleasure, and, yes, please do email me the article.

    Thanks,

    George

    Reply

  11. Dale Atchison’s avatar

    Thanks so much for this explanation. I had wondered for years why sometimes a movie sound track or tv ad included the original version of a song, and sometimes it was an obvious (and usually poor) cover. Now I know… and will sound so much smarter next time I'm asked, and I quote your answer as if it were my own <g>.

    Reply

  12. George Howard’s avatar

    I wouldn't have it any other way, Dale!

    thanks for reading.

    best,

    George

    Reply

  13. DwaineAllison’s avatar

    And when an artist performs live on tv, i.e. superbowl, does all of the above apply as well, if he didn't write the song? It seems unlikely, otherwise a writer could prevent an artist from doing their job (singing the writer's music).

    Reply

  14. Richard’s avatar

    You come off sounding like some bitter & rejected songwriter..”music supervisor referred to as lackeys”?? WTF?? What kind of generalization is that about some super talented people in the Film & TV industry…While you are able to outline Film/TV licensing into a simple 3 paragraph primer..I find it interesting how your article is peppered with angry little barbs….maybe it was “your” model to license “your” artists music into any piece of shit.. as you say…(another barb at the quality of TV & Films? maybe?) but thankfully its not what many others do…then below you mention “complexities in negotiating Video (DVD) rentals & sales”? Im curious what US Studio have you negotiated a DVD royality provision for your music or composers? Unless you are talking about a simple buyout and think a buyout is complex…and you are a college professor?? wow..

    Reply

  15. SongwriterLisa’s avatar

    So if I'm understanding correctly….there's a one time fee for Synchronization and Master Usage. The movie theaters have a “special” agreement and don't have to pay public performance royalties. When the Ad, TV show or movie is broadcast (performed on TV) there's a Performance Royalty paid to the writer and publisher. The performers of the song if they are not the “songwriter and or publisher” make no money from the song performed because there are no “Artist Royalties” involved in the negotiations above…. Is that the general idea? Let me know if I've gone awry 🙂

    Reply

  16. George Howard’s avatar

    Point(s) taken. I appreciate your comments. Really just trying to be
    funny, but I completely take your point.

    Thanks,

    George

    Reply

  17. George Howard’s avatar

    Lisa,

    That's exactly right. Movie theaters are exempt from paying public
    performance royalties.

    Again, you are right, when a (c)'d song is publicly performed (broadcast) on
    TV or radio, the writer of the song, and, if they've done a pub deal, the
    publisher of the song get paid. PLEASE note, if you are a writer who has not
    done a publishing deal, you are, by default, your own publisher, and thus
    the PROs (ascap/bmi) will pay you both the writer share and publisher's
    share.

    And, yes, for TV and terrestrial radio public performance (i.e. broadcast),
    neither the performer nor the label are paid. This is sort of unique to the
    US (most other countries except for N. Korea, Iraq, and a few others) pay to
    both the writer and the performer/label. There is legislation wending its
    way through the legislative branch to try and change this.

    Note, for digital performance (i.e. streaming from websites, etc), there is
    a public performance royalty for performers/content holders (i.e. labels) in
    addition to the standard performance royalty for writers (still handled via
    the PROs). The digital performance royalty is handled via an organization
    called SoundExchange. If you're a performer/content holder (label), you
    should register the compositions you control with SoundExchange in the same
    manner you do with whichever PRO you are affiliated.

    Thanks for the great question.

    best,

    George

    Reply

  18. George Howard’s avatar

    If an artist performs a cover on the Super Bowl (or any other publicly broadcast venue), the same rules do indeed apply. For instance, suppose the Who had performed “Yesterday” by the Beatles. In addition to being a strange choice, the Who would not have received a dime from the public performance of that song. Rather, the songwriters (The Beatles, on most of their compositions divided it between John and Paul) and the publisher(s) for these songwriters would see the public performance royalty via the PRO (ASCAP/BMI) with whom they are affiliated.

    Because the Super Bowl is such a global event, and broadcast around the world, the songwriters and publishers of Yesterday would also see public performance royalties via the individual countries equivalent to ASCAP and BMI. Different countries handle it differently, but the net result seems to be roughly the same.

    As an important aside (and this has come up in other comments), the US is one of the very few countries who does not pay a public performance royalty to the performers or content holders (i.e. labels). The other countries, by the way, read like a rogue's gallery of miscreants: N. Korea, Iraq, etc. There is legislation in place to change this; we'll see if it happens. So, when these other countries air the super bowl, and a public performance takes place, not only do they pay (via their clearinghouse agencies; i.e. their equivalents of ASCAP/BMI) the writer/publisher, but also the performer/content holder. So, were the Who to play “Yesterday,” and some station in, for instance, the UK aired the Super Bowl, they (the UK station, via their clearinghouse agency, in this case: PRS) would pay not only the songwriters of Yesterday and their respective publisher, but also the Who (because they performed it). Were it a synchronization (i.e. they used a recording of the Beatles, the label, EMI, would also get paid).

    Hope this makes sense.

    best,

    George

    Reply

  19. George Howard’s avatar

    I should also note, you gotta understand, I have been talking about this topic for a LONG time. I have to try it make it entertaining for myself (and, maybe, others – certainly, not you, I get that), or I won't write about. Or, more precisely, I'll write about it in the same dry, academic (yes, I am a college professor) manner that others do, and, apparently, no one will read/understand.

    Again, your points are well made, and well taken, and I apologize for offending you (and, likely, others). Not my intention.

    “Tone” is hard in writing (particular blog posts). I think (though, could be wrong) that if I was speaking this to you, you would have gotten my tone, and would have seen it lacked bitterness, and attempted at humor.

    best,

    George

    Reply

  20. SongwriterLisa’s avatar

    George,

    Yes,  I was just reading about “SoundExchange”  they're covering satellite radio, internet radio, websites, etc.  Sounds like they're the equivalent of “BMI and ASCAP” for the digital age! 
    Sounds like they stepped up to take on a medium neither of the others organizations were able to or wanting to keep up with.

    Sincerely,

    Lisa A. Leitl
    President of Dezine Management, Inc.

    http://www.hghplus.net
    http://theyinside.wordpress.com

    Reply

  21. George Howard’s avatar

    Lisa,

    I won't bore you with the history, but it was the 1995 Digital Performance
    in Sound Recordings Act and the 1998 Digital Millennium Copyright Act that
    put in place a performance right for sound recording copyright owners
    (SRCOs).

    SoundExhchanges authority to collect for/distribute to these SRCOs comes
    from a designation by the Librarian of Congress and the US (c) office.

    So, yes, they sort of stepped in, but it was really a requirement based upon
    legislation.

    Please, please don't do what too many others do and mistake them
    (SoundExchange) as a replacement for ASCAP/BMI. They're not. SoundExchange
    collects different things (royalties for SRCOs and featured performers when
    their (c)d works are publicly performed in a digital, non-interactive
    manner). ASCAP/BMI continue to collect on behalf of (c) holders (i.e.
    writers/publishers) of these songs whether these songs are publicly
    performed digitally or non-digitally.

    Thanks so much for the great questions and conversation.

    best,

    George

    Reply

  22. George Howard’s avatar

    PS: I said I wouldn't bore you with the history, and that's precisely what I
    did. Apologies.

    Reply

  23. SongwriterLisa’s avatar

    George,

    I appreciate the information and I never find any information boring…information is power.  I would never think that SoundExchange is a replacement for the other organizations, but thank you for the heads up…it's hard to imagine anyone confusing the issue.
    If you have any other information feel free to unload you can never have “too much” info. Thank you for the quick response and the interesting and informative history lesson.

    Sincerely,

    Lisa A. Leitl
    President of Dezine Management, Inc.

    http://www.hghplus.net
    http://theyinside.wordpress.com

    Reply

  24. George Howard’s avatar

    …and, I keep forgetting to address your question about what DVD deals I have negotiated. I'm not going to list my bona fides here on the blog (though, it's not hard to find them scattered online), but suffice it to say I have negotiated MANY of these types of deals.

    Are they more complex than a simple buy out? Sure. But simple buy outs aren't complex at all.

    So, it all sort of depends on how you define “complex.” A license for a song to be used in a DVD (and, these days, it's not just DVD, it's also online streaming, digital download sales, etc.) has a few moving parts, but compared to, for instance, the purchase of a house when there is a mortgage involved – i.e. something that most ordinary people do, often without the benefit of lawyers (to their detriment, by the way) – a DVD license for a song just isn't that complex.

    best,

    George

    Reply

  25. George Howard’s avatar

    My pleasure, and unload I will, and if you ever have any questions, don't
    hesitate to contact me: gah650 [at] gmail [dot] com.

    best,

    George

    Reply

  26. SongwriterLisa’s avatar

    Just curious is SoundExchange part of one or the other BMI and or ASCAP?????  Did they created a separate entity to cover the legislation that was passed? 
    This is only for curiosity sake,  I love to know how business and organizations think and operate.

    Sincerely,

    Lisa A. Leitl
    President of Dezine Management, Inc.

    http://www.hghplus.net
    http://theyinside.wordpress.com

    Reply

  27. bradley’s avatar

    You might have mentioned this, but… if the song writer has no publishing deal, they will have to create a publishing entity in order to collect the 'publishers share' of royalties…easy and free…ascap or bmi….or sesac if they invite you….otherwise they miss out on half of the bux….yes yes??

    Reply

  28. George Howard’s avatar

    Thanks for the question, Bradley.

    If a songwriter has no publishing deal (i.e. he has not assigned the (c) to
    the song to another person/entity), that songwriter controls 100% of the
    publisher's share of the song. Remember, when it comes to performance
    royalty, there is a writer's share and a publisher's share. Each totals
    100%. So, if you are the sole writer, and you have not assigned any part of
    the (c) of the song to publisher, you would have 100% of the writer share
    and 100% of the publisher share.

    In order for any of the PROs (ascap, bmi) to pay you, you must fill out and
    return song submittal forms for each song. On the form(s) you will delineate
    the writer share and publisher share. You can do this under your own name,
    and use your social security number. In this way, you'd say that John Doe
    (not the X founder, genius) is 100% writer and 100% publishers, and when
    ASCAP pays out, they'll just pay it all to John Doe.

    There are, of course, reasons for setting up fictitious entities
    (corporations or LLCs). These allow you to keep your personal assets
    separate from your professional assets. Additionally, you can come up with a
    name or names for your publishing entity. In this manner, you might submit
    your form with you as the writer, and the name of your company as the
    publisher. You see this a lot on the credits of CDs: [“Song”] written by
    [Writer] and published by [songs of writer], ASCAP.

    If you're just interested in using a fictitious name, you could also create
    a d/b/a (doing business as) under your own personal SS#. The disadvantage of
    this is that you have no separation between your personal assets and the
    businesses. If, for instance, you're sued for (c) infringement and you lose,
    and the plaintiff is awarded damages, and you have no separation between
    your personal and business assets, the plaintiff can come after your
    personal assets.

    Please, please do not confuse the above (i.e. setting up an entity to handle
    the income from your perf royalties as a “publishing company.” I hear
    artists all the time say that they have a publishing deal with BMI/ASCAP.
    They don't. ASCAP and BMI are not publishers.

    You could set up a publishing company, and one part of this company's
    purpose would be to collect the publisher's share of the perf royalty, but,
    unless you're also dealing with the other publishing concerns (registration,
    collection (of all relevant income: perf, mechanicals, synch, print, etc.),
    and – most importantly – exploiting the work, you're not a publishing
    company.

    Hope this didn't just make things more confusing.

    best,

    George

    Reply

  29. lindathornberg’s avatar

    So…. if my band has their own publishing company (XYZ Publishing), and does a 'cover' of a popular song… And the film maker wants to use OUR version of the song. Does the film maker only have to sign a deal with the Composer(s) of the song…to get clearance… even though their original publisher might have been Arista for example?

    Reply

  30. George Howard’s avatar

    Thanks for the question.

    If your band does a cover, and a film maker wants to use this version (i.e. your cover) in her film two things must happen:

    1. The film maker must get the synch license from the publisher (or writer directly if they have not assigned the (c) to a publisher). The film maker will do this first, because if the publisher/writer does not grant the license, there's no way to move forward.

    2. Once the film maker has a sense that the publisher/writer will grant the synch license, and terms are agreed upon, the film maker must get the master usage license from whoever controls the version of the song. This will be the label who released the cover version of the song on the record they (the label) released. If there's no label (i.e. the artist released the work herself), the film maker must negotiate with the artist who released the version of the song.

    In order for the song to be used in the movie, both sides (synch and master ) must be in place.

    Is that clear? Let me know.

    best,

    George

    Reply

  31. lindathornberg’s avatar

    Thanks so much for the great info George! I was just reading down the thread between you and Lisa about Sound Exchange.
    I have a a question about that. I own an original music company that receives quarterly payments from BMI for television commercials. Do you know if Sound Exchange also tracks original Music for our commercials when they are used on the internet (eg. this music being used on a website? Or if this music is used in conjunction with other web content?).
    Thanks again, Linda

    Reply

  32. George Howard’s avatar

    Linda,

    Thanks for the question. Yes, as owner of the music (I assume that means the (c) and the master), you would, as the sound recording copyright owner (SRCO) be entitled to receive payment. Additionally, if you're the featured performer you also get royalties when the (c)d works are publicly performed in a digital, non-interactive
    manner.

    As with ASCAP or BMI, you'll need to register the songs with SX.

    best,

    George

    Reply

  33. George Howard’s avatar

    Thanks for the question.

    If your band does a cover, and a film maker wants to use this version (i.e.
    your cover) in her film two things must happen:

    1. The film maker must get the synch license from the publisher (or writer
    directly if they have not assigned the (c) to a publisher). The film maker
    will do this first, because if the publisher/writer does not grant the
    license, there's no way to move forward.

    2. Once the film maker has a sense that the publisher/writer will grant the
    synch license, and terms are agreed upon, the film maker must get the master
    usage license from whoever controls the version of the song. This will be
    the label who released the cover version of the song on the record they (the
    label) released. If there's no label (i.e. the artist released the work
    herself), the film maker must negotiate with the artist who released the
    version of the song.

    In order for the song to be used in the movie, both sides (synch and master
    ) must be in place.

    Is that clear? Let me know.

    best,

    George

    Reply

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