Say your client is producing a movie and she wants to use the song “Hotel California” by the Eagles in her film. How do you go about securing the rights to use that music for her? The answer is that you need to get the permission of the copyright owner(s). As explained below, this can be trickier than it sounds.
Pursuant to the Copyright Acti , the creator of an original work that is fixed in a tangible medium owns the copyright to that work. A “copyright” literally means the exclusive right to make copies of the work. When a piece of music is used in a movie, a copy of that music is being made and therefore, the right to copy that music needs to be secured. In a music recording, two works are actually being copied: (1) the composition of the song, that is, the lyrics, vocal arrangement, the instrumental accompaniment, etc., and (2) the artist’s recorded performance of the song.
First, the copyright in the composition is initially owned by the songwriter(s). ii The rights to use the composition of the song are called the synchronization or “sync rights.” For popular music, the sync rights are generally owned by a publishing company because the songwriters have assigned their copyrights in their songs to the publishing company in consideration of getting their song published and being paid royalties. Publishers for American music can usually be found at Performance Rights Organizations’ (like ASCAP or BMI) websites. In our case, a search on ASCAP’s website for “Hotel California” reveals that the publisher is Fingers Music. We could go to www.fingersmusic.com and find out how to contact the publisher to request a license. If you want a sync license for a less popular, more obscure tune, you may have to track down the actual composers and negotiate a license directly with them.
Second, the copyright in the recorded performance of the song will generally be owned by the artist’s record label. The rights to use the master recording are called the “master rights.” Here, the artist has negotiated a contract with a record label and has assigned the copyrights to the record label in consideration of being signed by the record company, getting the artist’s recordings radio play, and royalties on sales of the artist’s records. Of course, brand new artists will have a lot less control over their music and how their music can be licensed to others than very popular artists. For instance, a few years ago Taylor Swift famously pulled her music from the music streaming service, Spotify,iii which means that she and her record label refused to grant Spotify a master license to her album “1989.” Because of her popularity she had a greater say in licensing decisions than an unknown singer.
To find out whom to contact for a master license, one good website to search is Discogs, www.discogs.com . In our case, the record company that produced “Hotel California” for the Eagles is Asylum Records and the contact information for them is listed at Discogs.
In order to avoid the expense of a master license for “Hotel California,” your client may want to simply acquire the sync rights from the publisher and then hire a local band or studio musicians to record the song. This is why when you watch TV programs or movies, you often hear popular music performed by unknown musicians. The production still has to secure the rights to use the recording from these musicians but that will be far less expensive than getting the Eagles’ version of the song
It can be a challenge to find the companies you need to contact for licensing, especially for older songs because record and publishing companies get bought and sold just like any other companies. But websites like ASCAP and Discogs can give a lot of information that will help in finding who has authority to negotiate a sync or master license. Also, it should be noted that a license is not required for songs that are in the public domain because the copyrights have expired. But know that even if a composition of an older song is in the public domain, a more recent recording or arrangement may still be copyright protected.
Once you have secured for your filmmaker client the master and sync licenses to “Hotel California” as recorded by the Eagles, she can use it in her movie. However, the license that she signed will have terms that will limit her distribution of the movie. For instance, does the license only cover distribution in the United States or the universe (yes, the “universe” is used in entertainment law contracts because we don’t want any infringement happening on a space station!). You may have been able to secure perpetual rights for your client but, more likely, there will be a term for a certain number of years, after which the licenses will automatically expire. These dates should be calendared so renewals can be secured, if necessary, prior to termination.
The repercussions of not obtaining copyright licenses from all copyright owners of music used in a movie can be harsh. If the copyright owner has registered the work with the US Copyright Office, then the Copyright Act allows for injunctive relief, double damages, statutory damages, and attorneys’ fees.iv
Finally, there are plenty of firms who specialize in licensing and most will do this work for a flat fee per license or per project.
i 17 U.S.C.S. §§ 101 to 1332 (2010)
ii Unless the song is a “Work for Hire” pursuant to 17 U.S.C.S. § 101.
iv 17 U.S.C.S. §§ 501 to 513 (2008)