Tune licensing requires careful legal approach

Not unlike the special-effects beasts from some of this season’s bigscreen blockbusters, music licensing for independent film is a creature that often is woefully misunderstood. Early in the filmmaking process it’s shrugged off by producers as a manageable piece of the post-production pie best handled at a later date. Misconceptions about public domain and copyright terms only muddy the waters. And then, when the subject of soundtrack finally is broached, a full-fledged monster rears its ugly head.

“There are a lot of mistakes that independent filmmakers make, but the biggest is not allowing enough time for licensing the music,” says Cary Ginell, music research director of Sound Thinking Music Research. “I’ve gotten calls from producers on the set saying, ‘Oh no, we have this song being recorded on our soundtrack and we just found out we don’t have it cleared!’ Sometimes it turns out to be easily licensable, but sometimes you have to tell them they’re out of luck.”

No easy fixes

It’s easy to understand why such snafus occur — most filmmakers possess just enough misinformation about the licensing process to be dangerous. The promise of festival licenses, soundtrack deals and public-domain material can seem like a much-needed golden parachute in the face of dwindling reserves of time and money. But in reality none of these are easy — or in some cases even probable — fixes. Festival licenses, the deals that make alluring temp soundtracks possible for filmmakers with little or no funding, can be a mixed blessing at best. A filmmaker just might be able to secure that top-40 hit — at least until his film is picked up by a distributor.

“Usually, festival licenses are pretty lenient, but I think that you have to set your sights a little closer to reality. You don’t want to temp your film with Stones and Beatles tracks, because you set yourself up,” says Chris Douridas, an inhouse film and television music consultant for the A&R department of DreamWorks Records as well as a deejay at KCRW. And while there is the possibility that a distributor may be willing to shell out the funds to retain a temp soundtrack, if the songs are known quantities the price will be high — and don’t rely on a record company to save the day with a soundtrack deal.

“You have to think that every song that people know is going to be expensive,” says Karyn Rachtman, vice president of A&R and soundtracks for Capitol Records. And while Rachtman, who has worked as a music supervisor on such independent films as “Pulp Fiction” and “Reservoir Dogs,” suggests that filmmakers set their goals high, she adds, “Not everyone is a Quentin Tarantino. Unless you have an A-plus, music-driven movie that is really cool, record companies are not going to make a deal unless you have great distribution.”

Doubtful domain

It might seem that a filmmaker with a period film could benefit from the bounty of public-domain material, but even this realm of “freebies” is fraught with complications. “There’s no one repository of public-domain material. The public domain is a place where things aren’t; it’s like a void,” Ginell says.

Simply because you’ve been singing a tune for as long as you can remember, don’t assume it’s up for grabs. “People associate songs that are in the oral tradition as public domain, such as ‘Happy Birthday to You.’ But it’s not. ‘(I’m a) Little Teapot’ isn’t in the public domain, but ‘London Bridge’ and ‘Ring Around the Rosy’ are. It’s very tricky. You can never take public domain for granted,” Ginell adds.

There also is the complication of copyright. “Once a song arrangement is written down, it can be copyrighted. So if someone scores ‘London Bridge’ for a string quartet and you choose that for your soundtrack, you may have a copyright issue,” Ginell explains.

Lyrics and music also can fall under different legal categories. “I worked on a film called ‘Texasville,’ and (director) Peter Bogdanovich included a public-domain song called ‘Lauralee.’ It’s the same music as ‘Love Me Tender,’ but the music is public domain. We could use an instrumental version, but just singing the words would have cost a fortune,” Rachtman says.

Copyright tangle

To confound matters further, copyright laws are not the same in all countries, despite recent efforts to globalize. While the European community has harmonized its copyright expiration date at 70 years after the death of the writer, in the U.S. the term is set at just 50 years, a potential stumbling block for an inexperienced music supervisor. “A filmmaker should get a lawyer, or at the very least a music supervisor who is reputable and knows the industry. Don’t try to do it yourself,” warns Jay Morgenstern, executive vice president and general manager of Warner Chappell Music. While such an addition to a filmmaker’s team may further reduce limited funds, indie adventurers be warned: Licensing is a beast best handled by professionals.

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