STEVE GORDON is an entertainment attorney and consultant based in New York City specializing in the production, distribution and financing of music, television, documentaries, feature films, and digital entertainment projects. Steve also operates a music clearance service for producers, filmmakers and labels who use music in films, concert programs, documentaries and compilations.
He is author of the book, The Future of the Music Business and serves as an adjunct professor at The New School where he teaches a course on the music industry. He recently won a Fulbright Scholarship and delivered a series of lectures on copyright law and the music business as a Fulbright Scholar at Bocconi University in Milan, Italy. From 1991 to 2002, Steve served as Director of Business Affairs at Sony Music. There he handled the clearances for thousands of music videos for Columbia and Epic Records, and hundreds of long form music ocumentaries and TV concerts with artists such as Bruce Springsteen, Michael Jackson, Billy Joel, Mariah Carey, J.Lo, Barbara Streisand, Celine Dion and many others. As the principal lawyer for Automatic, Sony's in-house production company, he oversaw all business and legal matters for the music based TV series "Sessions at West 54th" on PBS (and now on RIO), and "Live by Request" on A&E
Interview on Inside the Music Business Indie Show with MC Serch
Tips for Clearing Music for Television and Motion Pictures
By Steve Gordon
Music licensing offers ancillary income in a music business that lately has seen decreases in sales of recorded product. Even the Internet, which has negatively affected record sales, offers music licensing opportunities. In the following interview, New York entertainment attorney Steve Gordon discusses the practical considerations involved in the licensing of music. Next spring, Gordon will teach a course on digital music law and business models at New York University and present a seminar at Columbia University on the future of music on the Internet. Gordon's contact information, information on the course and seminar, and his previously published articles can be found at Steve Gordon Law (www.SteveGordonLaw.com)
Q: What kinds of projects do you work on?
A: TV, movies, documentaries, compilation albums, DVDs and Internet-based projects. I recently worked on several interesting jobs in cooperation with Universal Media Inc. [a company specializing in finding footage and music]. These projects included a documentary on Latin jazz for the Smithsonian Institution, a companion record album for Smithsonian Folkways Recordings, a network TV special featuring the music of Elvis Presley, and a PBS special featuring Frank Sinatra's duet performances from his old TV series, to be released as a home video and on foreign TV. Currently, I'm working on an independent movie about a serial murderer who targets punk rock fans, containing more than two dozen songs and masters. I also represent a publicly traded Internet content provider that is continually securing rights in all kinds of content, including music, videos and computer games.
Q: What is the process for securing copyright clearances?
A: The process is basically the same for any kind of project. Research the songs, strategize with the client, negotiate the terms and review or, in certain instances, prepare the licenses. In regard to the last item, music publishers and labels will usually provide their own licenses. However, occasionally a small label, publisher or unsigned artist will request that you draft the license.
With respect to research, the kind of material to be cleared will dictate the nature of research to be performed. For instance, for musical compositions, the ASCAP and BMI databases are excellent sources for identifying the writers and music publishers. Each of these databases may have to be explored because each performing-rights organization provides information only on the songs in its own repertory. SESAC also administers certain songs that will not be included on the ASCAP or BMI sites. In addition, the Harry Fox Agency provides information concerning songs that it represents (see Songfile.com). If your client is using musical recordings, the packaging and liner notes can supply information such as the name of the record company and artist, and the release date. If the client is using excerpts of TV, movie or video footage, someone should view the credits from the original TV program, movie or music video to determine the TV service, studio or record label that controls the copyright in the footage. The musical artists, actors and other persons (or their estates) appearing in the footage may also have to be cleared depending on various circumstances, including whether there is a musical performance in the footage.
Once you have identified those who control rights in the material to be used, you are almost ready to approach the owners and negotiate terms. (See sample clause below.) But first you must strategize with the client. This conversation should include what rights will be required, that is, media, territory, duration, what you think it will cost and what to propose to the licensors. This process is the real "art" of licensing. With knowledge of the applicable business practices and pricing, you can advise your client on the approximate amount of money he or she will have to pay for clearances; alert him or her to potential problems, such as material that may be too expensive and may have to be replaced; and develop a letter addressed to the owners accurately reflecting the precise rights that your client needs and proposing the lowest reasonable fee or royalty. The proposed payment, which obviously must be approved by the client, should be as low as possible and include a cogent explanation of the reasons that the owner should accept such a rate. At the same time, the proposal should not be so out of whack with standard business practices that the owner feels insulted.
The negotiation process involves a discussion with the copyright owner or its representative about the project, plus continual follow-up. Many of the projects on which I work will not make a great deal of money for any individual copyright owner. For that reason, many of these requests usually are low-priority items to the people from whom I am seeking permission. To do this work, therefore, a combination of courtesy and persistence is recommended.
Ultimately, if the licensor doesn't accept your terms, you will have to negotiate compromises or even advise the client to drop the desired music. For instance, trying to get a hit song for an independent movie may not happen because the song owner may not like your client's project, or may not wish to license it to anyone at any price, or may propose a fee well beyond your client's ability to pay.
Finally, the owner will send the license, and it is my responsibility to make sure that the terms in the license exactly match the understanding between my client and the owner.
Q: What issues arise specifically in the case of independent movies?
A: From a clearance point of view, the most important difference between an independent film and a major studio production is that an independent producer usually has a lot less money to spend on anything, including music. Therefore, an independent filmmaker may have to curb his or her desire for securing "name-brand" talent. For instance, if your client wants to use "Satisfaction" under the opening credits, that is going to cost big bucks indeed, unless he or she happens to be a personal friend of Mick Jagger, and even then, don't assume a huge discount.
Even if Mick Jagger is your client's best friend, the people who administer the Stones' copyrights may never have heard of your client. Music publishers and labels generally will adjust their rates downwards based on the size of a movie's budget. But don't expect to pay a nominal fee for a hit song just because your client's budget is modest. Independent film producers should also understand that no matter how popular or recognizable the music in a movie is, people don't watch movies to listen to music. A lawyer or clearance person can work with a savvy producer to create a great soundtrack without busting the budget. For instance, many music publishers, labels and managers may be eager to place new songs written by "baby bands" that will be more reasonably priced than songs written by established acts. Another alternative is a "stock" music house. Generally, these firms can license both the song and the master, and therefore offer one-stop shopping as well as low prices. Finally, a composer or songwriter/producer can be hired to write music for specific scenes, or a complete score. There are many talented but hungry songwriters who would be happy to work on a client's project for a credit and a reasonable fee.
Another way to work within a client's budget is to set up the quote request as a series of options. Generally, a film festival license can be secured for a small fee because music publishers and labels recognize that festivals are not commercial enterprises. Additional rights such as theatrical, free TV, cable and home video can be requested as options. Each one may be exercised by paying a specific fee. "Broad rights"-which include theatrical, TV and home video-can be expensive. In case your client does not succeed in securing commercial theatrical distribution, these options will allow him or her to gain exposure for the movie (on cable TV, for instance) for a reasonable fee without paying for unnecessary rights. Next month, Steve Gordon will address such topics as deal points, "most favored nations," penalties for the failure to secure copyright clearance, and the role of a music supervisor.
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