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.