INTRODUCTION TO MUSIC CLEARANCESSTEVEGORDONLAW.COM

STEVE@STEVEGORDONLAW.COM

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BASIC CONCEPTS AND DEFINITIONS

“MUSIC CLEARANCES”

MUSIC CLEARANCES

• MUSIC CLEARANCES = SECURING LICENSES TO USE PRE-EXISTING SONGS AND MUSIC RECORDINGS FOR VARIOUS PROJECTS

• MUSIC CLEARANCES DOES NOT PERTAIN TO CREATING NEW MUSIC (e.g., HIRING A MUSICIAN OR A COMPOSER TO CREATE ORIGINAL MUSIC)

EXAMPLES OF MUSIC CLEARANCE PROJECTS• “ELVIS BY THE PRESLEYS” –DOC AIRED ON NETWORK TV—SECURED LICENSES TO USE DOZENS OF SONGS RECORDED BY ELVIS

• “FRONT AND CENTER”—TV CONCERT SERIES ON PBS FEATURING VARIOUS BLUES ARTISTS—SECURING LICENSES TO USE THE SONGS THAT THE ARTISTS PERFORMED IN THE SHOW (e.g., BUDDY GUY PLAYED SONGS BY HENDRIX, DYLAN AND OTHERS)

“MUSIC CLEARANCES” VS “MUSIC LICENSING”

“MUSIC LICENSING” IS SOMETIMES USED TO REFER TO MUSIC CLEARANCES, BUT IS ALSO USED TO

REFER TO THE “SYNCH BUSINESS”

NUTS AND BOLTS

MUSICAL COMPOSITIONS (“SONGS”)

VS

MUSIC RECORDINGS (“MASTERS”)

VS

FOOTAGE CONTAINING MUSIC (“FOOTAGE”)

SONG

SPANISH HARLEMBMI Work #1393049

Songwriter/Composer

Current Affiliation CAE/IPI #

LEIBER, JERRY BMI 17713791

SPECTOR, PHILIP BMI 63684950

Publishers Current Affiliation CAE/IPI #

ABKCO MUSIC, INC. BMI 56388746

SONY/ATV SONGS, LLC BMI 187062752

MASTER

FOOTAGE

THE BEATLES ON THE ED SULLIVAN SHOW

SOFA Entertainment, owners of the Ed Sullivan Show, own footage including the recording contained in the footage.

PUBLIC DOMAIN/SONGS

Works Registered or First Published in the U.S.

Date of Publication Conditions Copyright Term

Before 1923 None None. In the public domain due to copyright expiration

Copyright Term and the Public Domain in the United Statescopyright.cornell.edu/resources/publicdomain.com

PUBLIC DOMAIN/MASTERS

Date of Fixation/Publication Duration of Copyright

Fixed prior to 15 Feb. 1972 Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067

15 Feb. 1972 to 1978 95 years from publication.  2068 at the earliest

1978 to 1 March 1989 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.  2049 at the earliest

After 1 March 1989 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.  2049 at the earliest

MFNMost Favored Nations: In the event Licensee grants more favorable terms including, without limitation, additional consideration in any form, to the co-publisher(s) of the Composition or the party granting rights to use the master recording thereof (if applicable) in the Motion Picture, Licensee shall notify Licensor thereof, and this Agreement shall be deemed amended to incorporate same as of the date when such higher fee is paid or such more favorable terms are granted to such third party, and to continue for the duration of the period which such more favorable terms are granted.

PBSSpecial Rules for Public Broadcast Stations are Favorable for Producers

Songs

Section 118 provides for a statutory license subject to rates negotiated by PBS and publishers.

PBS, on the producers’ behalf—with funding from the Corporation for Public Broadcasting—will pay the federally prescribed fees to the copyright owners.

(But Section 118 does not provide for a statutory license for any other windows including home video.)

Masters

Section 114(b)

The exclusive rights of the owner of copyright in a sound recording . . . do not apply to sound recordings included in educational television and radio programs . . . distributed or transmitted by or through public broadcasting entities . . . Provided that copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public.

(Again, clearances are required for other windows.)

DOCS (SONGS AND MASTERS)OPTION 1: Basic Cable or Pay Television

TERRITORY: United States & Canada

Term: 3 Years

FEE: $1,000.00 per song

OPTION 2: Foreign Television

TERRITORY: World excluding United States & Canada

Term: 3 Years

FEE: $1,000.00 per song

 OPTION 3: Internet Streaming Services (eg. Hulu, Netflix)

TERRITORY: World

TERM: 3 Years

FEE: $1,000.00 per song

OPTION 4: Airplane and Closed Circuit

TERRITORY: World

Term: 3 Years

FEE: $500.00 per song (Offer same terms for concert programs)

Home Video 

Royalty: 10 cents PBS Pledge only OR 12 cents for PBS Pledge, commercial DVD and downloads of full programs.

Advance: 2,500 units ($300) with rollovers every 2,500 units thereafter

Territory: U.S.

Term: 7 Years

 

FEATURE MOVIES (INDIE MOVIE)

RIGHTS:

Film Festival/One (1) year/ World $500

OPTION:

All Media Broad Rights Step Deal:

Media: All media now known or hereafter devised

Initial Fee: $2500

With Steps of $2000 at $3M, $5M, $8M, $10M, $12M and $15M worldwide gross receipts based in ALL forms of exploitation (including but not limited to theatrical, all videograms/DVD, all TV media, and Internet streaming and downloading).

(Factors in determining price – Identity of song or master; use, i.e., foreground/background or over credits; personalities and approvals)

TVProducers will seek buy-outs of all rights in perpetuity

Example: $12,000 for excerpts of 2 songs in HBO docudrama

 

Spectrum:

MTV will offer $0 for songs by new bands to be used in any of their programs

The bands only get ASCAP BMI $

Cable shows will offer a few thousand to a few more thousand for emerging acts

Bruno Mars will cost $25,000 and up

“TOMORROW NEVER KNOWS” IN MAD MEN

In 2012 Lionsgate, the studio that produces “Mad Men” for AMC paid about $250,000 for the recording and publishing rights for the Beatles’ “Tomorrow Never Knows.” "Tomorrow Never Knows" was used at the end of an episode in Season 5 of Mad Men.

MUSICAL THEATRE

•No advances

• 4-5% of Gross Box Office

• Pro-rated by the number of songs

• Denials depending on identity of writer

ADVERTISINGPrice:

• $0 for current hit song in a promo for homeless dog

• $5,000 for Billy Ocean hit from 80’s for ten days in five small markets for commercial for car show

• $375,000 for song and $375,000 for master for national TV commercial for life insurance

• Other terms: Duration – usually no longer than a year; Media – on-line in addition to TV may cost extra; Identity of song – obscure songs may be cheap

• Save 50% by re-recording

STAND-ALONE DIGITAL PROJECTS

Apps         

Simulcasting

Webisodes and web series

Kickstarter videos

Digital sheet music

Lyric sites

Artists Websites

Music Webzines and Blogs

Ringtones and Ringbacks

Video Games

APPS

BEWARE BLANKET LICENSES FROM MAJORS:

Major Label 1:

Advance: $50,000 advance

Minimum guarantee: $250,000 for one year.

Royalty: 70% of gross revenues deriving from that label's masters.

Territory: U.S. only

 

Major Label 2:

Advance $350,000 advance payable upon execution

Additional $20,000 "content prep fee" also payable upon execution.

After the first year $30,000 would be due at the beginning of each month.

Royalty: 50% of revenues from that label's masters.

Territory US Only

Publishing included

OTHER STAND-ALONE DIGITAL PROJECTS

Simulcasting (PRO licenses)

Webisodes and web series (Similar to TV)

Kickstarter videos

Digital sheet music (Pennies for downloads)

Lyric sites (LyricFind)

Artists Websites (avoid covers)

Music Webzines and Blogs (Pitchfork - avoid covers)

Ringtones and Ringbacks (26 cents)

Video Games (buy-outs)

ALTERNATIVES (ESPECIALLY FOR ADS, TV, AND MOVIES)

• Music libraries (“stock music”)

• Commission/Work for hire