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licensing a cover song for use in a soundtrack
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messiahwannabe
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#1
29th August 2009
Old 29th August 2009
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licensing a cover song for use in a soundtrack

hi guys!

my band does a cover song, which i intend to submit for consideration to use in a film soundtrack. i've licensed this song for an commercial before, and as the money wasn't a whole hell of a lot, i just called the guy who wrote it (he's a peer with connections to my band), offered him a fifth of the money, and everything was cool. however, this potential soundtrack deal would be much bigger money, and as it's under a big studio i would imagine i need all my ducks firmly in a row if i want the placement.

i've already googled around for 3 hours reading articles on mechanical copyrights, synchronization rights, etc, and while i'm clear on what to do if i were releasing a cd myself with a cover song, i'm still unsure what needs to happen to license a cover song for a movie.

my best guess, based on what i've read so far, is that since i've already covered this song and profited from it, i have defacto permission to use it again, as long as the songwriter gets his cut (though perhaps i ought to get that in writing). someone would need to pay the songwriter mechanical royaties on a per-cd-printed basis, probably whichever record company was pressing the ost. the synchronization contract would be between myself (the performer) and film production company, and any money received for being on the soundtrack would go solely to me. however, the writer could then collect performing rights via ascap bmi, sesac etc. which i would not be entitled to.

if so, it would seem that all i really need to do is make sure the correct songwriter is listed in the credits. then, the record company printing the ost would be responsible for paying him mechanical rights as appropriate, and negotiating a rate with him if they prefer to get a cheaper rate than the standard. the songwriter would be responsible himself for registering with ascap and harry fox and making sure he gets his various cuts for performing rights royalties.

is this correct? is there any other cut the songwriter is entitled to is i sell my version of the song to a film company, or any contracts i need to sign with the songwriter? is there anything else i need to do to be fully prepared before i submit the track?
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29th August 2009
Old 29th August 2009
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if a major film studio is going to license your MASTER RECORDING of a song you did not write, they will negotiate with the writer/publisher directly for the sync fee of the COMPOSITION - unless of course you've represented that you actually wrote the song when you didn't - which would make them very unhappy.

Quote:
Originally Posted by messiahwannabe View Post
my best guess, based on what i've read so far, is that since i've already covered this song and profited from it, i have defacto permission to use it again, as long as the songwriter gets his cut (though perhaps i ought to get that in writing).
you absolutely DO NOT have this right in any way shape or form for a sync license for film or television. if you are licensing the MASTER to record label for use on a Soundtrack ALBUM than the label is responsible for securing the mechanical license.

Quote:
Originally Posted by messiahwannabe View Post
if so, it would seem that all i really need to do is make sure the correct songwriter is listed in the credits. then, the record company printing the ost would be responsible for paying him mechanical rights as appropriate, and negotiating a rate with him if they prefer to get a cheaper rate than the standard. the songwriter would be responsible himself for registering with ascap and harry fox and making sure he gets his various cuts for performing rights royalties.
sorta. the record label needs to obtain the mechanical license from the correct publisher/adminstrator BEFORE the album is released.

Quote:
Originally Posted by messiahwannabe View Post
is this correct? is there any other cut the songwriter is entitled to is i sell my version of the song to a film company, or any contracts i need to sign with the songwriter? is there anything else i need to do to be fully prepared before i submit the track?
There are two parts to a song the MASTER RECORDING (the actual recorded performance) and the underlying COPYRIGHT COMPOSITION.

For films, both the MASTER and COMPOSITION fee's are negotiated. For phonoalbums the MASTER fee is negotiated and the COMPOSITION is paid on a stat rate per unit sold, as arranged by the label releasing the album - who also needs to obtain the mechanical license prior to release.

Hope that helps.
messiahwannabe
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29th August 2009
Old 29th August 2009
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Quote:
Originally Posted by redvelvetstudios View Post
if a major film studio is going to license your MASTER RECORDING of a song you did not write, they will negotiate with the writer/publisher directly for the sync fee of the COMPOSITION - unless of course you've represented that you actually wrote the song when you didn't - which would make them very unhappy.
and i want definitely them happy (and thus inclined to license more of my work at a later date) which is why i'm trying to clear this up before things get too far down the road


Quote:
Originally Posted by redvelvetstudios View Post
For films, both the MASTER and COMPOSITION fee's are negotiated. For phonoalbums the MASTER fee is negotiated and the COMPOSITION is paid on a stat rate per unit sold, as arranged by the label releasing the album - who also needs to obtain the mechanical license prior to release.
ok, so if i understand what you're saying, *I* don't actually need to get the permission of the copyright holder before i submit the song. however, i'll want to have solid contact details for him to provide to the music supe, so HE can negotiate a fee for the composition with the copyright holder directly.

so mostly i just need to call the copyright holder up, tell him i'm submitting a song he wrote for a film, and make sure i have his current phone numbers and emails to pass on if neccesary, right?


Quote:
Originally Posted by redvelvetstudios View Post
Hope that helps.

yes, absolutely, that last bit about master vs. composition fee's for synchronization rights is the missing link of information i hadn't found so far. thanks!

thanks also the imdbpro tip before - they didn't actually list the music supe or his work contact details (though now that i'm thinking about it, maybe i wasn't looking in the right place somehow?) but i did manage to get in touch with the indonesian coordinator for the film, who is in a perfect position to pass my submission on the the correct person. i'm still interested in connecting with your plugger contact btw
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31st August 2009
Old 31st August 2009
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Quote:
Originally Posted by messiahwannabe View Post
hi guys!

my band does a cover song, which i intend to submit for consideration to use in a film soundtrack. i've licensed this song for an commercial before, and as the money wasn't a whole hell of a lot, i just called the guy who wrote it (he's a peer with connections to my band), offered him a fifth of the money, and everything was cool. however, this potential soundtrack deal would be much bigger money, and as it's under a big studio i would imagine i need all my ducks firmly in a row if i want the placement.

i've already googled around for 3 hours reading articles on mechanical copyrights, synchronization rights, etc, and while i'm clear on what to do if i were releasing a cd myself with a cover song, i'm still unsure what needs to happen to license a cover song for a movie.

my best guess, based on what i've read so far, is that since i've already covered this song and profited from it, i have defacto permission to use it again, as long as the songwriter gets his cut (though perhaps i ought to get that in writing). someone would need to pay the songwriter mechanical royaties on a per-cd-printed basis, probably whichever record company was pressing the ost. the synchronization contract would be between myself (the performer) and film production company, and any money received for being on the soundtrack would go solely to me. however, the writer could then collect performing rights via ascap bmi, sesac etc. which i would not be entitled to.

if so, it would seem that all i really need to do is make sure the correct songwriter is listed in the credits. then, the record company printing the ost would be responsible for paying him mechanical rights as appropriate, and negotiating a rate with him if they prefer to get a cheaper rate than the standard. the songwriter would be responsible himself for registering with ascap and harry fox and making sure he gets his various cuts for performing rights royalties.

is this correct? is there any other cut the songwriter is entitled to is i sell my version of the song to a film company, or any contracts i need to sign with the songwriter? is there anything else i need to do to be fully prepared before i submit the track?
You did what? eek!!

You got the original writer to agree to a fifth? Under MFN - which all publishers and pretty much, as far as I know, all film distributors operate under - this would be completely ilegal!! If the license cost of $20k then the writing side gets $10k and the master side gets $10k. It's essentially 50/50 or rather 100% "per use".

Also if the guy was published - and that song in particular was - the license needs to go through the publisher or it's not legal !! Hopefully none of that is true.


The normal situation is for one side to agree the fee and MFN ensures the same payment for the other side - ie if master get $10k then writer/publishing does too!!

Secondly - a writer and/or publisher can absolutely veto any sync usage - there is no mandate for auto clearance like there is in CD/MP3 audio only versions. As soon as it's sync' the recording artist needs writers/publishers permission.

thirdly - without the writers permission you'd be in serious breach of the law. Court case would absolutely go in favour of the writer.

fourth - the OST has absolutely nothing to do with the sync' usage.

You should strike up a united front with the writer/publisher to be able to do undisclosed clearance - unlikely since how do they know you won't clear it for something they oppose? If the writer is unpublished then you may have better luck - I'm assuming this is what happened before... it was unpublished {ie copyright control}. The songwriter is the controlling party under sync usage and these rights are protected in pretty much every royalty paying state on Earth. Basically you absolutely can NOT license a cover version to whichever sync party you like. This is a breach of copyright law in all legal royalty bearing territories and a breach of criminal law in some. You do not have the right to assign sync' rights for any visual medium. if you did this to a TV commercial previously and the song was published I'm afraid you've broken the law!! Be careful!!

good luck - just don't assume ANY of the cover version rights granted to CD release have any bearing on sync' - they absolutely do NOT.


Of course - a movie producer is absolutely allowed to approach you for the cover version - in fact THEY would be dealing with the writer. If this is what happened with the commercial use previously then you've been ripped off! If MFN is observed you certainly don't have to pay writers part of the master use share!


cheers
messiahwannabe
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2nd September 2009
Old 2nd September 2009
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fair enough, but it was a fairly small amount of money involved, and the writer was happy to take what i gave him. if he approached me for half, given what you told me i'd pay him off. however, i kinda doubt he will, cause he'd risk t-ing me off and me never bothering to license this particular cover again, which would be against his financial interests - i have very different industry connctions from him, as well as a very different sound, but i like his songwriting, and if this one gets sold i'd probably consider using his material again under the right circumstances.

anyway, if this is the industry standard, i'd be happy to conduct further business with him accordingly. for what it's worth, i don't believe he's published. and i'm just about 100% sure the writer was only paid my me, not by the guys doing the commercial.

still, sounds like i need to educate myself further on this subject - think you could recommend a good online guide for the in's and outs of this stuff? it would save you guys the trouble of answering more dumb questions from me on the subject!
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2nd September 2009
Old 2nd September 2009
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s'alright to ask!!

bemuso.com is failry good but seems to be bent towards music release.

For sync - all you really need to know is:

A) everyone deals in "per use"
B) it's all MFN - i.e all parties equal {composition vs master}
C) writers get veto.
D) publishers get veto

If you can get the writers on board then the rest is easy EXCEPT when it's Warners or EMI - they veto buyouts.
messiahwannabe
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3rd September 2009
Old 3rd September 2009
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so i've been digging through bemuso.com for about 2 hours now, and while it's very interesting reading, there's one question i haven't been able to find an answer for:

various collection agencies do seem to collect royalties for public performances of music in films, advertisements etc. the composer/songwriter of this music is entitled to a cut of the royalties from these public performances, but what about the performer of the song?

ie. say i record a cover version of a song, and someone else is listed as the composer. i license it to a film, and both i and the composer of the song get a cash payout for the liscence. now, if this song gets played 2 years down the line (say, if they show the movie on cbs movie of the week) would i, as the performer of the song, be entitled to royalties generated by this broadcast? or would only the composer of the song get a check?
#8
3rd September 2009
Old 3rd September 2009
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PPL is he performing equivalent. But dont hold your breath!!
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