Scott asks a tricky question about music rights for video of a stage production…
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
OK, here's what Scott wrote in…
Q: I create and tour original visual theater. We tour internationally and in every contract the producer or venue pays the ASCAP or other performing rights society fee for the music that is used in our performances.
However if one were to record a performance and make it available online for sale who would the international fees be paid to for the video rights to the 20+ snippets of music in the performance? And how would one go about getting the rights to use said snippets of music?
First off, I have to say that, based on what he's described, I’m not 100% certain that the venues paying ASCAP and similar types of licenses is enough to get the rights for what they're doing. You see, those Performing Rights Organizations only license so-called “small” performing rights (concerts, coffee-houses, radio airplay, etc.), and not the “Grand” rights that are involved when music is an integral part of a stage production, where the music helps move the storyline and characters forward. It’s possible that they're in small-rights territory, if this show is fairly sparse on plot, storyline, costumes, lights, etc., but it’s also possible that they really need grand rights for what they're doing.
Grand Rights licenses are negotiated directly with the music publishers who own / administer the songs.
But that’s not the question Scott asked.
To use the music in video, you also need to directly license each piece of music from the publishers that own them. The license needed is called a “synchronization” license (which authorizes you to synchronize the song with pictures and dialogue, etc.)
AND, if you’re using existing recordings of the music, you also need a “master use” license from the record company that owns the recording you’re using.
To add to the hassle, many songs are administered by multiple publishers, (each songwriter’s interest might be handled by a different company)… So you might have to chase down 3 or more publishers for a single song.
These licenses are not automatically approved. Publishers usually have to secure approval from the songwriters themselves before licensing this kind of thing, (the songwriters or their heirs…
Sometimes have weird views about such stuff) so the publisher will ask for lots of information about the intended use… Context, script pages where the song appears, duration of the piece used, nature of the use (background, visual-vocal, etc.)…
And then they’ll quote a price for the use. Licenses are usually done on a “most favored nations” basis, so the highest quote sets the bar for all the music…
This can be a tremendously time-consuming process, so you should leave plenty of time.
1. Research to identify who holds the rights to each song
2. Prepare and send a quote-request (sometimes a form, sometimes just a letter asking for the rights needed) to each rights-holder.
3. Wait for approval and quote
4. Sign licensed pay fees/royalties
5. Use the music
But here's the other wrinkle… because you’re now revealing the nature of the show to these publishers, they too, will be asking the question whether you’re in “Grand Rights” territory, or whether the ASCAP/BMI rights are sufficient for the live aspect of what you’re doing.
And that's it for this session of Asked and Answered.
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