Monday, May 16, 2011

Enhanced e-Books 101: Simple Music Clearance Strategies


By Lloyd Jassin & Adam Ness

     Including music in an enhanced e-book or other multimedia work that combines more than one type of expression -- whether images, photographs, video or audio -- presents unique and challenging clearance or permission issues.  Obtaining the right to use music in your production, generally, will require you to obtain permission or "clear rights" from two different parties, the owner of the song and the owner of the sound recording.  And, if you fail to obtain proper clearances, harsh penalties under the Copyright Act include statutory damages of up to $150,000 per infringement. 

     While it may appear as if no one is paying for music today, if  the music you wish to include in an app or enhanced e-book is still under copyright, and the use doesn’t qualify as a “fair use,” that music element will have to be removed.  This article provides an overview of  the issues involved in clearing music rights for multimedia projects.

     Multiple sets of rights must be cleared to use a piece of preexisting music because recorded music is subject to at least two copyrights.  As such, there is no “one stop shopping” when it comes to music clearance.  If you obtain permission for the owner of a particular sound recording, you still have to obtain permission whoever owns the copyright in the underlying song.   On a happy note, it is often easier to locate music rights holders than the holders of other creative elements, because of the existence of online music rights databases.   

     Allow sufficient time for the challenges unique to music clearance.  Clearing any type of rights takes time, and music rights holders are still skittish about “new media.” As a result they are often reluctant to grant rights for different technical platforms or media platforms.

     Copyright No. 1:  Rights in the Underlying Song

     The first copyright is in the musical composition itself, which consists of the underlying lyrics, melody and rhythm.  The songwriters generally assign their copyright to a music publisher, who then administers the issuance of what are called “videogram” and “synchronization” licenses to multimedia and other producers.  If you wish to use a musical composition in combination with moving images, you must obtain a synchronization or videogram  license from the music publisher.   Whereas a”synch” license is associated with film and television, when dealing with home video devices, including so-called “enhanced e-books” a videogram license is needed.  Interestingly, “synch” and “videogram” rights are not mentioned in the Copyright Act.You will also need permission from the music publisher if you wish to reproduce the sheet music or lyrics.  The best way to locate a music publisher (or songwriter) is to visit one of the performing rights society websites.  ASCAP (www.ascap.com), BMI (www.bmi.com) and SESAC (www.sesac.com) each maintain searchable online databases of song titles and composers, which lists publisher contact information.  Harry Fox also maintains a song database, but, it tends to be harder to navigate than the aforementioned sites.  However, it’s a safe bet that the songwriters belong to one of these three performing rights societies.  

     Fees are highly negotiable, and the price you are quoted will depend on the popularity of the song, the attractiveness of your project, the duration of the use, the license term, geographic scope of the license, the nature of the use (e.g., theme song, background use), and the platforms or devices licensed.  When negotiating for multimedia rights, remember that multimedia works are non-linear, containing pathways a user may never explore.   If the music you are licensing is unlikely to be heard, you may argue that the fee you are quoted should reflect that.  If you are negotiating with different music publishers, you may be held hostage to what is known as the most favored nations clause ("MFN").   Publishers and record companies include MFN's in their license agreements.  They are like insurance policies.  If another publisher receives more favorable terms than they do, this clause is triggered, and the publisher who was paid less, automatically becomes entitled to receive the more beneficial terms.

    
Copyright No. 2: Rights in the Sound Recording

     The second copyright is in the sound recording itself. Sound recordings are generally owned by record companies, or, in some instances, by the artist. If you want to use an existing performance by a recording artist in your project, you will need a “master use” and “videogram” license from the record company or artist. In the case of an “app,” the combination master use / videogram license maybe referred to as a “multimedia” or “software” master use license. If you can't obtain the right to a particular recording of a song, consider a substitute recording by a less popular recording artist, or, create your own original recording.

     Streaming

     A public performance rights -- as opposed to synchronization rights -- is implicated when music is streamed from a website. If the listener or user clicks a button or link for a particular recording, and s/he hears the song, but a copy of the sound file isn't downloaded directly to the listener's music device, the music is being streamed.  If your website will stream music, you will need at least two licenses, i.e., one from a performance rights organization (i.e., ASCAP, BMI or SESAC),  and the other from the owner of the sound recording.

     SoundExchange manages payments for owners of sound recording rights (usually record companies), and should be contacted. Unlike synch licenses, ASCAP, BMI, SESAC and SoundExchange (http://www.soundexchage.com/) use standardized rights definitions, and issue licenses based on statutory rates set by Congress.

     Clearing music rights can be costly and time consuming.  There are no standardized rights definitions and fees vary tremendously   “Budget” options include commissioning music on a work for hire basis, and using low cost “production” or stock music.  If you have a complex clearance project, consider using a music clearance specialist.  They know the right people, and understand the industry’s customs and practices, and, thus, could move the process along more quickly than you.     


Resources

Kohn on Music Licensing: 4th Edition, Al Kohn & Bob Kohn (the music licensing “bible”)
BZ Rights & Permissions, http://www.bzrights.com/ (music clearance professionals)
EMG Music Clearance, http://www.clearance.com/ (music clearance professionals)
U.S. Copyright Office, http://www.copyright.gov/

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