HOW TO RESEARCH AND LICENSE A PIECE OF MUSIC

So there's this piece of music-a song, or an instrumental composition - that you've known and loved for a long time, maybe even since childhood. In fact, you like it so much that you'd like to use it in your project - commercial, film, video, slide presentation, whatever - and you're wondering how one goes about doing this. Since 1980, Patco Resources has dedicated itself to helping its clients license the pieces of music they wish to use in their audio-visual projects. The following are just some of the questions that clients have asked us over the years about researching and licensing pieces of music:

Q: Do I need to get a license and pay for any piece of music I want to use?

A: No. Some pieces are in the public domain, which is to say that they are no longer protected by copyright laws. This applies mostly to compositions of the 19th century and earlier, but there are some famous and highly recognizable classical and popular compositions from the early 20th century that have gone into the public domain. However, be warned! The question of "public domain-ness" is tricky. Many compositions that everyone assumes to be in the public domain are, in fact, still protected by a copyright (a famous example is "Happy Birthday", which was copyrighted in 1935).

Q: How can I find out if a piece of music is in the public domain?

A: For a fee of $50.00 per composition (a price which has not changed since 1980), Patco Resources can find out for you if a piece of music is or is not in the public domain. We will submit a written report to you with the results of our findings.

Q: Suppose the piece is in the public domain, does that mean I can just copy a recording of it and use it in my project?

A: No. Even if the composition itself is no longer protected by copyright, the recording is protected, and a license for its use must be obtained from the owner of the recording.

Q: All right, suppose the song or instrumental piece I want to use is under copyright, what do I do then?

A: You need to procure a synchronization license from the copyright owner (usually the publisher) in order to use the piece.

Q: Do I have to procure a synchronization license no matter what the nature of my project is?

A: A synchronization license must be obtained if a copyrighted musical composition is to be used "in synchronism" (this is the legal term) with any audio-visual production for which it was not originally intended and the object of which is to sell or promote a product or service or otherwise generate income or publicity for the creator of the production.

Q: Does this mean that I can license any piece of music I want?

A: No. Some composers simply will not license their compositions for any kind of synchronization or commercial uses. Then there are composers and publishers who will only license their compositions for large-scale national or international uses, and will not consider any local or regional projects. Finally, there are "category conflicts", meaning that someone has already licensed the piece you're interested in for a similar usage. There are many reasons why a song or an instrumental piece might not be available for licensing.

Q: Suppose I'm interested in procuring a synchronization license - what kind of information would you need in order to negotiate on our behalf?

A: Mostly a lot of basic stuff - the nature of the usage (will it be played in the background or performed by a character or person in the film or commercial?), the purpose of the usage (will it be used to promote a product or service? If so, what kind?), the media in which it will be used (Film? Television? Radio? Other?), how long will the usage be (weeks, months, years), the geographical extent of the usage (local, regional, national, international). The copyright owner will want to know these things.

Q: Suppose I want to change the lyrics of a song, can I do that?

A: In most cases, yes. However, any parody lyrics (this is the term that is used, even if the changes you make are not, strictly speaking , "parodies") must be approved in advance, and can sometimes add to the cost of a license. Some composers and lyricists will not allow any changes in their words, no matter how much money is involved.

Q: Here's the critical question - how much will a synchronization license cost?

A: That depends on a lot of factors, not least of which is the nature of the music you're looking for. If a client calls us up and blithely announces that they've got $5,000.00 and are looking for a Beatles song, we will gently advise them that those kinds of dollars simply will not buy a Lennon-McCartney tune. Likewise, if we call up the publisher of "Pickle-For-A-Nickel-With-The-Mustard-On-Top" to negotiate a one-week usage on a radio station in the village of Carbuncle, and they grandly declare that they won't take less than $100,000.00 for such a usage, we will firmly inform them that such funds will not be forthcoming. Of course, these examples are exaggerations, but they illustrate the point that the perceptions of licensors and licensees about the value of a given copyright are often wildly "out of synch". Having negotiated with publishers of all sizes all over the world, Patco Resources is able to assure its clients that it will endeavor to obtain the best possible price for the usage envisioned for a particular composition. Our remuneration for this service is a ten percent (10%) commission on the license fee. All quotes we provide for a project include this commission. For any composition for which we negotiate and obtain a license, the $50.00 search fee will be waived.


Q: Now wait a second - just hold on! You say you charge a fixed commission percentage on the license fee, right? So how can we be sure we'll be getting the best price? After all, isn't it in your interest if the license fee is higher rather than lower?

A: Regardless of the size of the license fee, we have learned one simple fact over the years - DEALS DO NOT GET MADE IF EITHER PARTY TO A TRANSACTION FEELS THAT IT IS NOT BEING DEALT WITH FAIRLY. Our clients will not pay for a song if its cost is way above the production budget for their projects. Publishers will not grant licenses for compositions if they feel that the fee they are being offered does not reflect the true value of their copyrights. Luckily, our years of experience in this field have given us a very good sense of what the "right" price is for a given piece of music in a given set of circumstances. Even so, negotiating for the "right" price is often a difficult process.

A True Story: A client of ours, a large advertising agency, wanted to license some music from the soundtrack of a movie for a commercial. They had envisioned paying something in the "low five-figure" range for this usage. The publisher, however, felt that the intended usage of the composition merited a six-figure license fee. After much "shuttling" between the parties, we managed to get them to within $10,000.00 if each other. At this point, though, neither party would budge! Neither our client nor the publisher was willing to go up or down by $10,000.00, and they would not agree to meet halfway, since they both felt that each "had already conceded enough". The result: the deal never happened, and our client went on to license a different piece. The moral of the tale is that even though we always work in our clients' best interest, it's not always possible to get them the price they are looking for, even when we're trying as hard as we can to get the "right" price.

Q: So, now let's suppose we've got our synchronization license, but we don't want to make our own recording of the piece, can we go ahead and use an existing recording?

A: No. As mentioned above when we were discussing the public domain, any recording, whether by the original artist or a "cover" version, is owned by someone. This means that a license is required to use it in any audio-visual project. This is called a master license.

Q: How much will a master license cost?

A: When we started in this business, it was frequently possible to get some very advantageous deals from record companies. With the passing of the years, however, record companies have gotten less and less willing to take less money than a publisher for a commercial project - many have come to insist that they receive the same compensation as the publisher (this is called "Most Favored Nation" treatment). In a few instances, we have even encountered record companies that have asked for more money than the publisher was getting! In any case, when negotiating for master rights, we will spare no effort to get our clients the best possible deal.

Q: OK, so now we've got our synchronization license and our master license. Is everything now taken care of as far as the music is concerned?

A: Unfortunately, no. If the recording you've licensed was produced in the U.S. under union auspices, you will have to pay "re-use" fees to the artists through the A F of M. If a vocalist is involved, fees will also need to be paid through AFTRA. Then there are such matters as artist consent agreements, provision of media "break-outs", etc. etc. etc.

Q: Gee, this sounds complicated. What if I have more questions?

A: That's easy - just contact us by phone, fax, or e-mail and we will be happy to answer any questions you might have regarding the use of a piece of music in your audio-visual project.

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