Question: What about rights for a song / song lyrics?

Open Forum question from Neil:

Thanks again for the open forum!

I have a question!

Do you know where copyright law stands on having characters sing a song (or say the lyrics) in a film or TV show? I live in the UK, so things might be different, but I’m thinking of things like Generation Kill — no actual songs in there, but the characters often sing well-known songs.

Do you know if there is any sort law on grabbing the rights of said song? I don’t want to go writing a cheap film only to find out the rights to the song I used to explain the entire theme will cost more than the entire cast and crew!

Any insight would be awesome!

Funny you should mention this. Not sure if you’ve been following the NBC vs. Conan O’Brien “Tonight Show” brouhaha, but once O’Brien’s severance deal was set, Conan played around with music rights to get back at NBC. In fact, the night of Conan’s final appearance as host of “The Tonight Show,” this happened:

Tom Hanks was a final guest on Conan’s last “Tonight Show,” and if one trusty tweet is to be believed, Conan blew $500,000 on Hanks’ walk-out song.

When Hanks entered from behind a curtain to go to his seat, the band played The Beatles “Lovely Rita,” which costs NBC half a million dollars.

Questlove, who is the drummer for The Roots on “Late Night with Jimmy Fallon,” almost instantly tweeted,

yo i hate spoiling but i will have you know that walk on song we just heard was half a milli. i know cause i got the list rate at nbc

Whether this ends up being true or not, the fact is that any recorded song included in a script translates into $$ in the buyer’s eyes because of potential licensing fees.

NOTE: I’m not a lawyer and I don’t play one on TV, so if you need some ‘official’ take on the subject, go to a professional.

That said, ASCAP (THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS) offers some guidelines here. A few key excerpts:

Q: WHAT LICENSES MUST I GET TO USE A SONG IN MY FILM?

A: If you are using a pre-recorded song or another pre-recorded piece of music in your film, there are two rights you need to clear; that is to say, you need to get two different licenses to use the music.

• Synchronization License: This is the right to synchronize a song or a piece of music with your visual image. It must be obtained from the copyright owner of the music, which is usually the publisher. You can find out who the publisher is by using ASCAP’s Clearance Express (ACE) at www.ascap.com/ace. Songs that are not represented by ASCAP might be found at the National Music Publishers’ Association “Songfile” website (www.nmpa.org).You will be provided with a contact at the publisher’s Business Affairs or Licensing Department.
• Master Use License: This is the right to reproduce a specific recording of a song in your film. You clear this right with the record label who owns the specific recording you would like to use; see the liner notes of the recording to find out which company this is. Alternatively, you can get contact information for record labels by calling ASCAP’s Film/TV Department. You will be provided with a contact at the record label’s Business Affairs Department.

— — 
Q: WHAT DO LICENSE FEES COST?

A: License fees are determined based on various factors, including how the music will be used, the duration and number of times the music will be used and where the film will be performed. In all cases, the fees are negotiable and not all publisers and record labels charge the same amount. Students working on films that are only shown within an educational environment can often negotiate reduced fees. Independent filmmakers planning to show their films at film festivals can also often negotiate a reduced fee called a Festival Use License. These reduced rates are based on limited screenings of the film. Once the film has been sold for theatrical release, the fees will increase based on the significant increase in viewership and potential increased revenues. It is best to negotiate this increased fee in advance. Negotiating in advance for possible future performances in different types of media (theatrical, TV, cable, internet, etc) is often referred to as a Step Deal.

Here is a range of music rights fees according to “All You Need to Know About the Music Business” by Donald Passman:

• Low-end TV usage (e.g. — music is playing from a jukebox in a scene, but no one in the scene is paying any attention to the music) — free (for exposure) to $2,000 for a 5-year license. In a film, the fee would be $10,000 in perpetuity.
• A more popular song is worth more, perhaps $3,000 for TV and $25,000 for film.
• A song used as the theme song for a film might get $50,000 to $75,000.
• Commercials fetch even more money: “a song can command anywhere from $25,000 to $500,000 plus per year. The typical range for a well-known song is $75,000 to $200,000 for a one year national usage in the United States, on television and radio.”

Your question about the use of song lyrics — spoken or sung — is an intriguing one and well beyond the scope of my meager understanding on these issues. However you may want to zero in on the distinction between an actual recorded version of the song — in which case you would have to be concerned about whoever controls the rights to that specific recording — and the song lyrics — rights presumably held by the author/composer or their estate. If your character in the script simply says or sings some lyrics, I suspect that would be considered to be an “original recording,” allowing you to bypass the former concern and simply be an issue per the latter (i.e., the composer him/herself).

If you’re just looking for my advice whether to use song lyrics in a spec screenplay, I would say this: If it’s one usage, go for it. If it’s multiple usages of different song lyrics, maybe. In either case, make sure the usage is tied to character and plot, and not just to be cute. If the lyrics are connected to the meaning and advancement of the plot, then any professional reader will identify that fact and likely not make much of a stink about it, other than including information in their coverage notes about the script bearing potential licensing fees. If the script is good, the music fee issue won’t cause a buyer not to pony up $$ to acquire the script.

GITS reader, especially those of you in the legal domain or professional readers / story analysts, what’s your take / advice re this issue? Are my thoughts in harmony with the way it is or is my advice out of tune?

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