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The other type of advertising use, which often requires a higher fee, is “out-of-context” use. By granting this right you are allowing your music to be used in the ad differently than it is actually used in the film or TV show. If your music is used in “outof-context” advertising, you should be paid a higher fee, as your music is now advertising the film. What media rights are being sought? As technology continues to advance the producers of film and television shows are seeking broader rights. Given the advances in streaming technologies, the popularity of tablets and smart phones, these companies must secure all possible rights upfront in order to take advantage of new technologies. Here’s an example of a recent quote one of my clients received for a proposed “out of context” use: “$_______ – The perpetual and universe-wide right to fix, exhibit, distribute, release, and/or otherwise exploit the Master Recording in all forms of out-of-context trailers and advertisements, featurettes, making-ofs, “behind the scenes” programs, a promotional-only music video (if applicable) and other promotions in any and all media now known or hereafter devised, including, without limitation, a worldwide buyout of all forms of audio-visual devices now known or hereafter devised, and the Internet.” As you can see, the film company is not only seeking rights to use the master in the film but also to advertise the movie and include the master in the “bonus” material commonly found in DVDs (e.g., featurettes, “making ofs” and “behind the scenes” programs). Music cue sheets As you may recall from our first article in this series (March 2010), one of the exclusive rights you have as a copyright owner is the right to publicly perform your work. So, when the TV show or movie that includes your song is broadcast on television or streamed on the Internet, you want to ensure the cue sheet is filled out properly so that you receive public performance royalties from your performing rights organization. If you are an ASCAP member you can go online and verify that a cue sheet was filed in their office and that all of the information is correct. A cue sheet is a document filed with the performing rights societies (in the U.S. this would be ASCAP, BMI or SESAC) and contains a detailed listing of each piece of music used in a film or episode of a television program. The information in a cue sheet will typically include the song title, the duration of the use, the composer’s name, publisher’s name and their respective performing rights organizations. It will also include the type of use (e.g., MT – Main Title, T – Theme, VV – Visual Vocal, BV – Background Vocal, BI – Background Instrumental and ET – End Title). Soundtrack albums Despite the belief in the music industry that the heyday of the soundtrack album has passed, motion picture and television studios continue to release soundtrack albums in the face of dwindling CD sales and the ability of consumers to create their own “soundtracks” by purchasing individual tracks from Apple iTunes, eMusic, or Rhapsody. Many years ago, soundtrack albums were produced only for motion pictures. However, over the past few years it is becoming more common to see television shows release soundtrack albums, which is another opportunity to advertise and market the show. Take the NBC show Glee for example. In May 2010 the producers of this show released Glee: The Music, Volume 3 Showstoppers which was number 1 on the Billboard 200 charts in its first week of release in the U.S. with sales of 136,000, according to figures provided by Nielsen SoundScan. What might be even more interesting is that (as of the publication of this article) the producers of Glee have released twelve soundtrack albums, which includes a Christmas Album released in November 2010.

For songwriters and publishers, the soundtrack album is another opportunity to earn mechanical royalties. For the owner of the masters (i.e., record companies) it will also mean another opportunity to promote a particular artist and earn additional monies. The royalties paid to record companies are in the neighborhood of 11% to 14% SRLP (suggested list retail price) which will be paid on a “pro rata” basis. This means the royalty will be paid in proportion to the number of masters that make up the soundtrack album. For example, if the record company is being paid a royalty of 11% and there are eleven masters on the soundtrack, each record label owner will receive a license royalty of 1% (assuming each company has only one master on the album). The legal paperwork Once you have agreed to the material terms, the music supervisor will send you a quote to sign and return. This quote will be used to draft the synchronization license agreement. This is a contract setting forth the terms of the license to use your song in timed-relation with the visual images that appear in the film. If they also want to use the master recording of the song, a similar license will be issued for the master, which is called a master use license. More often than not, the fee for the song is the same fee paid to the owner of the master. If you are signed to a record label and they own the master, the terms of your recording agreement will dictate whether you have any approval rights for the use of the master in the film. In addition, your recording contract will state how you will be compensated for this use. More often than not, the master use fee paid to the record company will be shared equally (50/50) between you and the record label. Fifty percent of the fee will go into the pockets of the record company and the remaining half will be applied toward the recoupment of your expenses. If you have recouped, you should receive your share of the master use fee at the same time you receive your royalty statement from the label. Additional resources While there are many opportunities to have your music placed in films and television shows, it can be a difficult and time-consuming effort. Similar to many aspects of the music industry, it is often who you know that opens the door to opportunity. To start developing your network, I would suggest attending music conferences like South By Southwest (as written up in this issue), CMJ Music Festival, or Billboard’s Film and TV Music Conference as well as film festivals like Sundance, Telluride, and Tribeca. In addition to networking, you will want to research films and television shows that might be a good fit for your music. Magazines like Variety and Hollywood Reporter report on a weekly basis those films that are in pre-production, production and post-production as well as the production schedules of TV shows. There are also helpful online resources. One that I like is the Internet Movie Database (www.imdb.com) which has a wealth of information as well as Film Music (www.filmmusicmag.com) if you’re interested in composing for motion pictures. Todd Gascon (gascon@recordingmag.com) is a technology and entertainment attorney at ZentLaw in Sunnyvale, California. Mr. Gascon’s practice is focused in the areas of intellectual property law, including copyrights and trademarks, with a particular emphasis on digital media, music, motion pictures, visual arts and all entertainment issues relative to the Internet. For more information on Todd and ZentLaw, visit www.zentlaw.com. Bruce Kaphan (kaphan@recordingmag.com) is a producer/ engineer/musician/composer who currently lives in the San Francisco Bay Area. For a discography and more information on Bruce, visit www.brucekaphan.com.
RECORDING JUNE 2011

http://www.imdb.com http://www.filmmusicmag.com http://www.zentlaw.com http://www.brucekaphan.com

Recording - June 2011

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