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Shiv Rajagopal is a filmmaker based out of Hong Kong & Los Angeles. With a background as a producer of indie films, music videos, and commercials, he writes about the entertainment industry at large. He is also the Co-Founder of Forgotten Films, an indie film company with a slate of films revolving around superheroes from the golden age of comics.
At Wrapbook, we pride ourselves on providing outstanding free resources to producers and their crews, but this post is for informational purposes only as of the date above. The content on our website is not intended to provide and should not be relied on for legal, accounting, or tax advice. You should consult with your own legal, accounting, or tax advisors to determine how this general information may apply to your specific circumstances.
Music is one of the most compelling filmmaking tools. It has the potential to evoke emotions like no other. However, producers must obtain and clear the rights to use any commercially released music in a film.
Navigating the world of music clearance can be stressful and confusing, so we spoke with entertainment attorney Harry Finkel to help explain how to get music rights for films.
This article will cover the different types of licenses and how to get the rights to the music you want. It will also cover some important do’s and don’ts for negotiating music rights for films.
Harry Finkel is an entertainment attorney and is the one of the founders of Feig Finkel LLP based in Beverly Hills. They are a full-service boutique entertainment law firm. Harry explains:
“Half the firm is lawyers who deal with talent clients: writers, directors, and actors. And [the other] half the firm is finance and production for indie films and TV shows.”
Harry is focused on the latter, facilitating content development, financing, production, and delivery. Working in the industry's creative, business, and legal sectors gives Harry expertise in multiple aspects of the filmmaking process.
“My specialization is in film financing, distribution, and production. We handle everything from getting screenplays written to getting the films financed to delivering them to distributors.”
Harry is also an established producer whose recent credits include State of Consciousness starring Emile Hirsch and After the Wedding starring Julianne Moore and Michelle Williams.
As a producer, there are a few things to consider during pre-production, long before you buy music rights for films. Clearing music takes time and planning, so get a head start!
Planning ahead is vital, especially if you have songs in mind during the pre-production phase. Including a list of songs in the script will help determine the budget and the crew you need to hire.
Are you dealing with a low-budget indie or a studio-backed film? The film's budget drastically changes the types of music you can use and the personnel you can hire to obtain clearances.
There is no magic formula to determine the suitable number as it differs for each film. But start planning sooner rather than later, as getting the music rights for films is time-consuming and expensive.
“The more popular your artist, the more you are going to pay. [...] At the studio level, you might have a $10+ million music budget, and that’s not a big deal.”
Most importantly, having a budget determines the personnel you can hire to get music rights.
A music supervisor does the administrative work to clear the songs heard in any film. They are an intermediary between the creative and business spheres of the industry.
Generally, they will do the groundwork to find the labels and publishing companies that own the rights to the music and initiate the clearance process.
“The first thing I would tell a producer client is to get a music supervisor on board.”
While lawyers can do many of the same things as a music supervisor, their time is more expensive. Hiring a music supervisor will save you both time and money.
Producers shouldn't do this process on their own. Harry notes:
“Getting licenses is difficult. Labels and publishers don't respond to people they don't work with on a daily basis, and music supervisors have those relationships already, so they can get things moving quickly for you.”
Are you in post-production for a lower-budget film and wondering how to get music rights? The rest of this article will explain the process of getting music rights for short films, indie productions, etc.
There are two key types of music rights for our purposes, the sync license (also known as the publishing license) and the master license. They are the first step to understanding how to get music rights.
You must obtain both licenses to use any song for a film.
The synchronization license (or publishing license) allows producers to use the underlying musical composition and lyrics in a film. Producers must obtain this license from anybody who may have written or contributed to the song's composition
Take for example Whitney Houston’s "I Will Always Love You." Whitney Houston released this version in 1992, which was based on Dolly Parton’s 1974 original. So even though Whitney Houston performed the song, Dolly Parton is credited as the writer and is one of the people who owns the publishing rights.
The master license gives producers the right to use a specific recording of a song. Generally, the label to which an artist is signed owns the master recording of a song. If an artist is not signed to a label, you can negotiate the licensing agreement directly with them.
Once again, let’s use Whitney Houston’s "I Will Always Love You" as an example. Even though it is a Whitney Houston song, her label at the time, Arista Records, most likely owns the masters.
This song is an excellent example of why music clearance is complex. Arista Records has been sold, acquired, and revived over the years, so there is no immediate clarity on who owns the masters.
This is where a music supervisor is helpful because they will have prior knowledge and relationships that accelerate the process.
While the master and sync licenses are negotiated separately, they are joined at the hip in terms of cost. Harry explains:
“Most of the time, you will see MFN for publishing and master licenses. Which means, whatever you pay for the master, you have to pay the same for the publishing.”
However, if this exceeds your budget, you do have other options.
What can you do when you are over budget and unable to get music rights for your film?
“What you can do is just get the sync rights, which means you have the rights to use the song but not the original recording and you can get a cover band to re-record the song.”
HBO’s Westworld used this system several times, creating unique orchestral versions of popular songs. One of which was a Japanese rendition of Wu-Tang Clan’s C.R.E.A.M.
If done correctly, this is a stylistic decision that can make your film stand out and save you money on the master license.
If you are an independent filmmaker, you will also apply to film festivals. If selected to screen, you must negotiate the festival rights for the music. These rights will allow you to screen the version of the film containing the song at a film festival.
After this point, you might even sell the film to a distribution company that will release it. If the film is released theatrically, you will need a theatrical license for the song. Without this license, you are not permitted to show the film which contains the song in question.
But don’t worry, the terms of these licensing agreements are straightforward.
“A step deal will give you a festival license, with the right to pay an additional fee to step up to an all-mediums, all territories license, which allows you to use it with the movie in every way.“
On the one hand, it is advisable to negotiate these license agreements early on. This is because the rights holders may charge a higher price, knowing that you are generating buzz in the festival circuit.
On the other hand, you may not get selected for a film festival or release the film theatrically. So, paying for the license upfront could be a sunk cost. Many filmmakers will wait to actually pay for the licenses until they know that they are accepted into certain festivals or otherwise have a distribution deal on the table.
Knowing when to negotiate these licenses can be difficult, and there is no right or wrong. Just try to make the best decision with the information available to you at the time.
Once you have chosen the songs, you or the music supervisor will need to track down all the different owners of the master and publishing rights.
“Figuring out all the information is its own niche, and music supervisors are great at doing that.”
Hiring a music supervisor or clearing agency has multiple benefits, as we have covered above. Similarly, you can contact a clearance agency to help you track down all the necessary information and guide you.
To secure the master license, you must contact the label directly. The best point of contact would be the licensing or business affairs department at the label.
You can use a Performing Rights Organization (PRO) database to track the publishing or sync rights. The most well-known databases are ASCAP, BMI, and SESAC. To determine who owns the rights to a song, you must create an account and look up the song on their database.
When you begin the process, you may notice multiple owners listed for each song. To get music rights for your project, you must obtain approval from all the parties involved. If even one of them says no, you cannot use the song.
Once music supervisors have done all the groundwork, they will kick it up to an entertainment lawyer who can negotiate the specific terms of the agreement. This workflow might not apply to smaller productions.
With limited budgets, filmmakers may choose to work with their musician friends or independent artists. In these scenarios, it is always important to get all the terms of the agreement in writing to protect yourself in the future.
Also, be mindful of using a template to get music rights for films.
“Make sure you have a well-vetted template; don’t just pluck one off the internet.”
Try to leverage your network of producers or filmmakers who have worked on similar deals. Ensure that they know how to get rights to music heard in films. This will help you avoid some common pitfalls and make sure their templates have been vetted over time.
According to Harry, these are essential deal points that a template should cover:
“You want all mediums, all territory rights, in perpetuity.”
Let’s break down what they mean.
Allows you to use the song in the film as it is displayed across all formats, such as the theater, streaming services, or physical DVDs. Without this, you might be restricted to a theatrical release and be unable to use it for streaming.
This means you have worldwide rights and are not restricted to any one country. Some people even say “in the universe” because:
“You never know, and you don’t want your film to stop getting distributed when the space film division comes out.”
The last thing you want is to miss out on that potentially lucrative Mars film distribution market!
This gives you the music rights forever. No expiration, no renegotiation. No matter how much time you think is enough, you don’t want your descendants to have to renegotiate for that awesome song.
Especially for the Mars film distribution market.
Apart from the basic license and deal points, there are also two important legal concepts that a template must cover.
These clauses are built into music clearance agreements to protect the filmmaker in case of a dispute. Including these clauses will also make sure that the distribution phase of your film goes smoothly.
Be certain there is a clause whereby the person licensing you the rights to the music is waiving their right to injunctive relief.
“Which means that they can’t stop the film (even if you haven't paid them) from getting distributed.”
You don’t ever want the release of your film to be blocked due to a potential dispute with the owners of the master or the sync. This clause will give you legal protection to use the music no matter the circumstances.
Make sure that the template has solid assignment terms.
“Which means that there is no way they can take back these rights and you’re allowed to give the rights to the distributor in order to distribute your movie.”
This clause guarantees that you won’t want to have to re-open the edit down the line due to any disagreements with the rights holders.
It will be necessary when negotiating with distributors. When they buy the rights to your film, you will be required to assign the music rights over to them.
Make sure to keep careful records of your music usage and report those back to the rights holders. Even if you think it doesn’t matter, it might matter very much.
You might have to pay additional royalties to musicians depending on the usage of their songs. One example is the Union re-use fee:
“If a union musician is in the master, you will have to pay union re-use fees.”
It is best practice to budget for this cost as it will come up down the line. For one of Harry’s films, he recalls how a music supervisor told him:
“'Set aside $20,000 for when the music union comes knocking,' and they did.”
You will also have to pay the PRO companies (such as ASCAP, BMI, or SESAC) that collect money for the composers for the publishing rights. They will monitor usage for the sync rights. Depending on the type of agreement and the territory in question, the PRO companies will work with the distributors to collect the money owed.
There are some important dos and don’ts when getting music rights for films. Harry gave us two vital tips to keep in mind:
Timing is key. Do not leave clearing music until the very end of post-production. It is time-consuming, and rushing at the last minute will be expensive.
“Putting that at the top of your post-production list is a good idea.”
As always, it pays to think ahead. Waiting to figure it out or “fixing it in post” will end up costing you more money in the end.
Harry’s final note was a creative note for filmmakers.
“Don’t get married to an idea. [...] Especially in low-budget indies, you aren’t going to get what you want. [...] Always have backup options.”
You might have an Imagine Dragons song in mind when you visualize the show-stopping fight sequence. But understand that it might not be worth blowing your budget on. Consider other options and be open to new ideas.
You might be surprised at how they work better than expected.
All in all, getting the music rights for films is an expensive and time-consuming process. If you have a budget, hire a music supervisor or entertainment attorney who can guide and explain how to get music rights for the chosen songs.
Hopefully, this article can be a jumping off point for aspiring indie filmmakers who want to learn how to get music rights for films.
For more information regarding releases for films, check out Wrapbook’s free Model Release Forms Every Producer Needs. And if you are close to completing post-production, we have a Producer’s Guide to Film Distributors.
