Licensing of songs for music video/Public Access TV/internet?
 

Hello all,
I have a question about something I'm working on. I've been searching Copyright.gov, ASCAP, and Harry Fox's site for answers on this, and I believe I will need mech. rights in some of these situations, but maybe someone here can tell me where to look for a definitive answer.

A friend of mine is producing a CD. She is remaking an entire album of very well-known previously recorded songs by one singer-songwriter. She has a 501(c)3 fiscal sponsor for the project and is raising money to produce the album.

She is doing them with totally new and different arrangements, which I just read this morning that ASCAP does not license. I believe she needs to get her licensing for the album directly from the songwriter. However, my question is not about her CD, but about my producing videos for her (and for myself).

I shot footage of her singing some of these songs in a club, and will also shoot her rehearsals, etc. to follow the process of making her album.

I am using the footage for three different things:
1.) She is the subject of an episode in my documentary series I am creating, which will air on a Public Access channel
2.) The episodes will also be available on the internet after their first airings on Public Access
3.) She wants a short clip of some of this footage for her blog, available only to subscribers who have donated money to the making of the CD. Clips will be posted quarterly as we follow the process. I guess it's close to being a music video.

I am pretty sure from what I read that I only need Mechanical rights for Option #1, although at Harry Fox I read that public television broadcasts may be a special exception. I could be wrong.

In addition, what licensing do I need for stuff I make available on the internet? Remember, these are not pre-recorded songs off a CD; The video footage will only be of her performing and rehearsing "live" versions of songs she and her arranger have reworked.

I read somewhere that if someone makes a music video for an artist, it is the artist's responsibility to obtain rights. But I want to cover my arse. I am not a production company. I am a student who is also producing a series independently for Public Access. And she is a friend of many, many years.

Can anyone point me in the right direction to find out what I need to know? Thanks!

~Diane

Diane,

maybe this article written by Jay Rose can help a little bit:
http://www.dv.com/columns/columns_it...cleId=23902984

Since none of the recordings made by the original artist are used (if I understand you correctly), I would assume that all that you need is the synchronization rights from the songwriter or publisher. Maybe your producer friend can obtain those for you along with the rights she needs to make her CD, but I am not speaking from experience (it just seems that she'd be in a better negotiating position for the whole deal than you might be for just the synch license). You would also need to create a cue sheet for your video for broadcast; however, I do not know how performance fees work or are negotiated for the internet.

- Martin

Martin, it is my understanding that synch rights are for pre-recorded music (like, off a CD) that is synched to the video; and mechanical rights are for the written composition itself, if you are going to record a new version of the song. Maybe I am wrong and have it reversed?

Diane

There is a good chance that the rights to the "very well-known previously recorded songs" will belong to the company or companies that recorded the songs originally because that's the way a lot of record companies structured their agreements with recording artists. The singer-songwriter may no longer own any rights to his/her music -- not an unusual situation.

Without knowing what the original artist's rights are, you can only guess at how to proceed -- so you need to speak with him/her or his/her agent and the reps for the company he/she recorded with.

The 501(c)(3) status of the producer makes no difference re copyright - they would have get permission/pay license like any other entity. Ditto the "public access" status of the broadcaster or internet. All uses would prob. require permission.

The songwriter comes up as copyright holder in a search at copyright.gov for the songs from the album. Yes, there was a publisher, but we're only using the composition, not the original recording. Do I still need permission from the publisher of the recorded songs if I only need mechanical rights for the composition?

I know. I just provided that info to give everyone a clear picture of the project and what I'm doing. Also because one of the websites I found mentioned some proposal to change some of the laws as it applies to broadcast on "public television" but it was too confusing.

Diane,I believe (and the Jay Rose articles seems to confirm) that the synchronization license is with regard to the composition and/or lyrics, not the recording:
The mechanical license grants you the right to then make copies of your finished work, including the recording that you may have used.

- Martin

IANAL

Almost ... Mechanical licenses cover using music and lyrics to make phonorecordings and their digital equivalents. So it's mechanical rights that cover your friend using the words and music to make the CD recording she's releasing. Sync rights cover juxtaposing the words and music of the songs alongside the images on your film/video. Harry Fox does the former but not the latter. Master Use rights cover reproducing and distributing an already existing recording of the music. So if you want to release a CD of your own performance of "Lucy In The Sky With Diamonds" you need a mechanical license. If you want to re-release the Beatle's recording of "Lucy ..." you need a master license. If you want to record your own rendition of "Lucy ... " and use it in your video you need a sync license. If you want to use the actual Beatle's recording of "Lucy In The Sky With Diamonds" in your video, you need BOTH the sync license to use the words and music and the master license to copy the actual Beatles recording.

My wife runs her own business dealing with such matters - it's a very, very specific and complicated business.

She's away on business but I can tell you that the licensing for digital distribution is still a very new thing (believe it or not) and the industry has yet to settle on a consistent framework. If you have two distribution paths - on-line and traditional (e.g., TV), you will have two different royalty schemes to deal with.

If you get into this, make sure that you seek professional advice from a CPA who specializes in the music industry.

Typically, my wife will provide free advice by phone (say 30 mins) with no strings. If you are interested, let me know. It is a truly messed up business that requires careful navigation.

I am! I'll send you a private message.That's for sure!

Okay, so just to make sure I got it right - my friend needs the mech lic.'s for all the songs she's putting on her album, and I'll only need a synch lic. to put her performances of the songs in my videos. And, I get synch lic. from whoever hold the copyright to the music and lyrics. If, after the album is finished, I want to use her recorded songs, I'll need the synch. lic's. and also master lic. from her.

There is no way to answer this question until you to talk to the artist and/or the company or companies that did the recording and you know what the deals were.

The songwriter may turn up as the person who copyrighted a work in a search and yet may also have sold or licensed those rights to a record company in a contract. it was not uncommon for artists to sign over ALL rights to their music -- sync, mech, and everything else -- in order to get recordings made. It was also not uncommon for there to be "re-recording" clauses in recording contracts that prohibited an artist from recording new versions of old songs for some length of time (sometimes forever) after the initial recording.

John Miller is right, this is an extremely complicated area and every case is different You need professional advice from an attorney with experience in these issues. If John's wife will talk to you gratis, I would take her up on the offer.

As I understand it, that's the way it works. But note, you get the sync licenses fromn the original music copyright owners, not her, even though she's done her own arrangements. The master rights from her shouldn't be a problem however her licensing of the mechanicals may restrict what she can do with the masters once she's recorded them. It's a real muddle and the best advice is for both of you to consult an attorney familiar with IP law. It'll cost a few bucks up front but probably would prove worth it at twice the price in the long run.

No, I didn't mean that. I just meant, I'd have the sync rights for the song but if I eventually wanted to use her version that she recorded for her album (rather than my videorecordings of her performing it), I'd additionally need the master rights from her for her songs. Sheesh, this be a komplicated thingy!

Who would'a thunk it!

I've checked with Alyson (my wife) and she will be happy to discuss with you next week (she's out of town this week).

In the meantime, she suggests you look at:

http://www.knowthemusicbiz.com/

John.