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The Independent Film Producer's Survival Guide



Music In Film Introduction & Licensed Music


Film is simultaneously both a visual and audio medium. The combination of visual and aural gives the medium a power which exceeds images or sound alone.

Rock and roll changed music in film markedly. Prior to Bill Haley's "Rock Around the Clock", virtually all film scores were written and conducted by classically trained composers who were influenced by the great European composers of the 17th through 19th centuries. These composers used large orchestras with rich multi-layered orchestral sounds. Indeed, during the height of the studio era in the 30's and 40's, each major studio had its own orchestra.

Things are different now, driven not only by the burgeoning pop influences, but also by technological changes, especially the use of digital synthesizers. Filmmakers seeking to emulate the mood of a particular period now license the use of songs and recordings at an increasing rate (witness "Forrest Gump"). And composers who used to have to use an eighty-piece orchestra can emulate a similar sound at low cost using digital synthesizers in their home studios.

How important is music in film? In terms of relative weight in the budget, music averages 2% to 5% of the budget at major studios, and rarely exceeds 5%. Since the average budget is $50 million, the music costs for a studio feature frequently exceed $1 million. However, if the music is done well, it can have an incredible effect on the film's impact on the viewer. If you doubt this, look at a DVD and mute the music. The film becomes emasculated.

Music also can have a direct and immediate impact on your ability to sell your film. We were involved in a film entitled "The Spitfire Grill", a touching film with no stars and with a rather tragic ending. After the film was completed, the producers realized the score did not have the impact they wanted. They screened the film for James Horner (before he won an Oscar for "My Heart Will Go On" from "Titanic"), who agreed to re-score the film. "Spitfire" with Horner's music was subsequently screened at the Sundance Film Festival, became the object of a bidding war for distribution rights, and reportedly sold for twice its cost.

At the same time our experience is that the contribution of music to a film can be exaggerated and is the subject of much hype. When a project is submitted to us during development and the emphasis is the music (unless it is a music-based project, such as "Evita"), the producers often are trying to put a music bandaid on a story sore- and the sore is usually beyond healing. Just because Sting wants to do the score for your film does not make it a project which is capable of raising financing.

13.2 Licensed Music

One great feature of music is that it is usually very malleable. It can be put in and taken out during post-production with relative ease. It loses its malleability, however, if it is endemic to the action or story line, or if the performance of the song is shot live. But you must be careful. Music must be "cleared" in order for you to use it in a film. There is no such thing as "fair use" of music in a film - you can't drop in two seconds of a song and claim under copyright law that the use is so insignificant that you don't need permission from the copyright owner.

The bottom line is that the music must be cleared in order for you to distribute your movie. It makes no sense to spend millions of dollars on developing, shooting and editing a movie, and then being stuck with a useless asset because the music isn't cleared. You should also realize that unless the music is cleared up front that the copyright owners may well discover that the music is in the film, in which case you have lost all your negotiating leverage, and can be held up for exorbitant fees. You should also realize that among the legal weapons in the arsenal of music owners is what's called an "injunction", whereby a court can prohibit your distribution of a film - and if you violate the order you can go to jail!

Let's say you want to use a Beatles song "Hey Jude" in your movie. Whose permission do you need? First of all, you need to understand a few basics of copyright. A recording embodies two separate copyrights - the copyright in the song - what the copyright law calls a "musical work" - and the copyright in the recording - what the copyright law calls a "sound recording". If you use a recording, you need to clear both the musical work and sound recording. In some cases, you also need permission from the recording artist or songwriter. Finally, if the recording was done under the jurisdiction of a music union (which is quite common), you may be contractually obligated to clear the use with the recording artist, and have to pay what are called "re-use" or "new use" fees which equal the original session fees. This can become very expensive when you re-use an orchestral piece.

We strongly recommend that you use a music clearance company to sort all this out. There are several we suggest: Jill Meyers Music Consultants, 10669 Santa Monica Blvd., Los Angeles, CA 90025, 310-441-2604 (phone), 310-475-4323 (fax); Copyright Clearinghouse, 405 Riverside Drive, Burbank, CA 91506, 818-558-3480 (phone), 818-558-3474 (fax); Arlene Fishbach Enterprises, 1223 Wilshire Blvd., #304, Santa Monica, CA 90403, 310-451-5916 (phone), 310-393-5313 (fax); Fricon Entertainment, 1048 S. Ogden Drive, Los Angeles, CA 90019, 323-931-7323 (phone), 323-938-2030 (fax); Evan M. Greenspan, 11846 Ventura Blvd., #140, Studio City, CA 91604, 818-762-9656 (phone), 818762-2624 (fax); The Winogradsky Company, 11240 Magnolia Blvd., #104, North Hollywood, CA 91601, 818-761-6906 (phone), 818-761-5719 (fax).

When you use a pre-existing song or recording, you acquire what's called a "license" (permission) to use the song or recording. You don't buy the copyright in the song or recording. It is virtually always "non-exclusive" -- that is, the owner of the song can license them for use in other movies.




harris tulchin About Harris Tulchin & Associates

Harris Tulchin & Associates is an international entertainment, multimedia & intellectual property law firm created to provide legal and business services for all phases of the development, financing, production and distribution of entertainment products and services and multimedia software on a timely and cost effective basis to its clients in the motion picture, television, music, multimedia and online industries.
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