Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Do I need copyright clearance and permission for music soundtrack if I am using it on an independent film for festivals only? If so, who/where do I contact?
Answer: Yes, you do need permission. There is no exemption in copyright law for film festivals. Many music rights holders, however, are willing to give a limited license for such use for free or a nominal fee. It is best to negotiate a step deal where you pay according to how extensive your distribution is. This might entail a payment of $500 for the right to use the music in a film for festivals, and larger sums paid for a theatrical release, television broadcast, etc.
Question: I am currently trying to license two songs for a short film. The two songs are quite well known and my budget is limited. What is the best way to obtain licenses for music under these circumstances?
Answer: Beg. If you know the musicians personally, that may help. Try to interest them in your project. Even if you can't pay them much of a fee up-front, they will receive fees from public performing agencies when the film is televised and shown in theaters abroad. If the film is a hit, they may also benefit from the publicity.
Question: I am a female singer, songwriter, and musician of R&B, Soul, Contemporary Jazz-Funk and Pop music. I want to write music for featured films. Can you tell me whom I would need to contact for film productions?
Answer: You should probably focus on contacting filmmakers and directors, since these are the people who often determine who is to be hired to compose soundtracks. Many low-budget filmmakers are looking for music and with modern technology, you can often compose some pretty amazing music for little or no money. Perhaps you want to join the Independent Feature Project (on the Web at http://www.ifp.org) and offer your services to fledgling filmmakers.
Question: I'm a composer in Washington DC. I've been scoring documentaries and commercials for about three years, and although I have been an ASCAP writer-member for a year, I never got a chance to deal with royalties until now because every time it was a simple "complete buyout." National Geographic, who I haven't worked with before, may now ask me to score some of their TV projects. They say it's good that I'm an ASCAP writer, but I have no idea what I need to do regarding the royalty procedures if I get the project. Could you please describe briefly what kinds of papers I may be expected to sign there, where I'll have to send what, and, possibly, how I should go about charging them for the job?
Answer: ASCAP, BMI or agencies representing people who own music rights, may license public performance rights. You can call ASCAP, or BMI, and they will send you a package of information that explains what they do and how you can retain them as your agent. You can find ASCAP online at http://www.ascap.com. BMI's website is http://www.bmi.com). Essentially these agencies provide an administrative service. They collect fees for the right to publicly perform music from nightclubs, radio and television stations, and other outlets that publicly perform music. If a disc jockey had to individually license the rights to publicly broadcast a song before playing it on the radio, the burden would be horrendous. By contracting with ASCAP or BMI, the radio station can license a whole catalog of music and pay a royalty to the agency. ASCAP or BMI collects money from radio and T.V. stations and nightclubs across the country, deducts its administrative costs, and then divides the money up among its members. The money is divided up in proportion to the popularity of the songs. ASCAP does surveys to determine which songs are played more than others.
Question: I am just starting out in the music business. I have been dubbed the new scout/representative of an independent record company here in Germany. It is run by Americans entirely and we are looking for unknowns to come on to our record label. We focus on R&B and Rap. I officially joined the company on the 31st of May, plus they like the way I operate. Can you refer me to a good source of strictly music law information? I notice that you deal with screen law mainly. I need to know my P's and Q's if I want to be the best in this company.
Answer: To learn the basics of music law, I would recommend the book, Music, Money and Success by Jeffrey Brabec and Todd Brabec, published by Schirmer Books. This will explain the basics to you.
Question: I am involved in a community theatre and we are trying to write our own Christmas show. Our problem is that we would like to use songs that other people have written. How do we go about finding out who holds the copyright or license for old Christmas tunes? Is there any easy way to do this? We have over 50 songs to find information about. Any help would be greatly appreciated.
Answer: Probably the easiest way to determine ownership rights in a particular song is to contact the music publisher for that song. If you have a copy of the song in the form of a record or CD, the label should list either the recording company, or the publisher, or both. You could also hire a clip clearance agency to help you clear these songs. Here are two: Copyright Clearance Center at http://www.copyright.com and Suzy Vaughan Associates, Inc. at http://www.suzyesq.com.
Question: I have written my screenplay with some well-known artists/tracks. The artist is indicated, followed by the song title. Then, I have some of their lyrics with my action line description line-for-line. If I were to submit this screenplay for sale consideration am I violating copyright laws? Is there a legal way I can indicate recommended artist soundtracks/lyrics within the script?
Answer: Any substantial copying of a copyrighted work (such as a song) is technically copyright infringement. Certainly, a song cannot be used in a movie without a license. It is not copyright infringement to suggest the use of a song as a soundtrack component in a motion picture. Even a small amount of verbatim quotes from the song might be permissible under the fair use doctrine. From a practical point of view, unless the screenplay is turned into a motion picture, it is unlikely a claim for copyright infringement will ever be raised.
Question: Supposing that an agency wants to use a famous song in a commercial, yet the artist is "anti-commercial." Is it possible for the agency to write its own song using a soundalike and still technically avoid law violations by using soundalikes to imply an endorsement by a well-known star?
Answer: You may want to review the Bette Midler case (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)) and the Tom Waits case (Waits v. Frito-Lay, 978 F.2d 1093 (9th Cir. 1992)) in this regard. The soundalike might violate laws of unfair competition and rights of publicity—even if technically it's not copyright infringement.Any source
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