Licensing: The expensive sound of music
Music licensing is an essential element in television and film. Hernan alcerreca found that australian creatives need to plan ahead to secure that song they really want and need.
“I don’t believe in putting in music as a band-aid to get you over some rough parts or bad film making. If it’s there it’s got to add to it or take it to another level,” director Quentin Tarantino once said. Saturday Night Fever’s “Staying Alive”, Flashdance’s “What a Feeling”, The Graduate’s “Mrs. Robinson”, Titanic’s “My Heart Will Go On”, The Adventures of Priscilla, Queen of the Desert’s “I Will Survive”, Ghost’s “Unchained Melody”, Muriel’s Wedding’s inherent ABBA-ness or The Bodyguard’s “I Will Always Love You”, to name a few, became as indelible in pop culture as the films or shows they were included in – sometimes, even more so. 
Nonetheless, for several local film and TV projects, licensing songs is close to an afterthought while budgeting. “Unfortunately, music licensing is frequently the last thing considered when it comes to allocating resources for a new project,” says music supervisor Belinda Yates, who has spent over 30 years working in the Australian Music Industry and recently opened her own music consultancy firm, Belinda Yates & Associates. “It’s not until the people involved get to the very end of the production process and realise that a particular scene needs something extra that they think of licensing a song. By then, there’s very little left in the budget.” Gary Seeger, film and television manager at Music Mill, one of the major music supervision companies in Australia, agrees. “Budgets are tight. Many of our films are around the milliondollar mark – in the United States you spend that amount just on the script process. Normally the producer and the director are too busy with all the other bits and pieces of the production to concentrate on the music. Nonetheless, you still have your ‘Tarantinos’ out there who understand the importance of music in a film and try to get the rights for the songs early.”
THE PERILOUS ROAD TO SECURING A SONG
Waiting until the last possible minute to license tracks for a project (and with hardly any budget left) is a very dangerous game. There are many factors involved in obtaining the rights to use a song, and the process is usually trickier than it might seem at first glance. “A lot of the scripts I get include temp tracks,” says Seeger. “But usually they’re always the expensive David Bowie/U2 kind of songs – with a lot of zeros at the end of the price tag. The job of a music supervisor is to work around those situations and be creative. If the budget is tight, a song by Nine Inch Nails or Sonic Youth would easily swallow it up. Generally, the people involved in a film have been working on it for years; it’s their baby. It can be really hard to take when, at the end of the production, when they’re really anxious to get their film out, the music supervisor comes and tells them that they can’t have the songs they wanted.” “It’s very disappointing for a filmmaker, mostly when a whole scene is based on a particular song that they can’t get the rights for,” Yates continues. “There are many reasons why a request might be turned down by the owner, and not all of them are financial.” According to Yates, some artists don’t want to be associated with scenes of a violent nature. “They don’t want their song associated with a rape scene, for example… Or they just don’t want to be involved in a little sci-fi/thriller/slasher movie.” In such cases, the assistance of a music supervisor is priceless. “It’s like buying car insurance: you pray you never going to need it, but it’s nice to know it’s there,” Yates explains. “Especially when the song you want is not available. This is not to say that music supervisors can always get a decision reversed, but they can find ways to work around the problem. Some people are not good at selling their ideas, so it always helps to have someone that speaks the ‘language’ of the decision makers and knows how to sell them the ideas. From time to time, cutting a song earlier or placing it in a different scene could be the difference between securing the rights or not.” Seeger explains that the worst thing a music supervisor can do is to promise their potential client that they will be able to get all the tracks wanted in the project just to secure a contract. “you have to work around the problems and compromise a little,” he says. “it takes a lot of phone calls and sit-downs to find alternatives.” Seeger acknowledges the importance of being passionate and to try every means possible to secure the rights for the tracks required. “some directors and producers have an enthusiastic, even aggressive – in an artistic way – attitude about the importance of the songs that they selected for their project; sometimes that mindset really works. These scenarios are few and far in between, but they’re there! Sometimes it’s just a matter of the director sending a personal note to the source. In the end, the more information you send about the project, the easier it is to get the rights for a track.” “the copyright holder needs to know everything about the tv show or film in question” yates continues. “a synopsis, the full script, who the director and cast are, what the overall budget is, how much of the song will be used and where, will the song be rerecorded or will it appear in its original form, will it be used in the opening or closing titles? It’s also essential to be specific as to what kind of rights you need to secure – competitions, art-house, worldwide, dvd, online, etc. All these factors determine the final cost of a license.”
A world of alternatives
With so many variables involved in the decision-making process, music licensing might seem rather limiting. “copyrighting can be restrictive if the project’s budget is not too big, but there are a lot of alternatives,” yates affirms. “many small record and publishing companies are very anxious to get their up-and-coming artists into films or tv shows. Moreover, thanks to the beauty of the internet people are now able to sell their music online. There are a lot of eager online companies that own both the song and the recording rights to it – and because they need to promote their acts, they charge much less than a mainstream, high profile, act would. Even the major record labels have new artists that they want to get out there.” According to yates, australian acts are a smart choice not only because of the quality of their music, but also because they’re usually more accepting of local low budgets – charting overseas artist don’t understand why in their countries they get paid four times more than what they’ve been offered in Australia. “There’s definitely no prejudice against Australian artists,” Yates says. “Furthermore, the Australian TV and film industries are normally happy to support the local talent.” At the end of the day, even with a shoestring budget there are a number of practical alternatives available. But, no matter the size of a project, Seeger stresses the importance of a money transaction when securing the rights for a song. “Everyone involved in a project – producer, director, make-up artist, actors, etc – is getting paid, so the musicians should get paid too,” he highlights. “It can be $500 or a large sum of money, depending on the act, but it’s of theof the utter importance that a transaction occurs. I believe it’s unethical to tell artists that a film or a TV show will propel them to stardom and that’s why they’re not getting paid. No one knows for sure how good the project is really going to do. Perhaps it ends up being a turkey and haunting the artists for their entire careers.”
INFRINGING COPYRIGHT LAWS
Copyright infringement is an issue that both the government and the creative industries are serious about, but there are still grey areas that filmmakers themselves are now aware of. “A lot of people think that just because they bought an album they can use the music for free,” Yates says. “There’s a lot of ignorance concerning the copyrighting of music. Some film and TV teaching institutions don’t spend enough time educating the students on the importance of copyright laws; first-time filmmakers who enter competitions such as Tropfest need to read the fine prints on the entry forms very carefully. By entering a film they’re warranting that they’re not infringing any copyrights, and, if they do, they will be in trouble with the copyright holder and also with the organisers of the competition.” Yates says that most of the people that infringe copyright laws truly believe that they won’t get caught, but more often than not they do. “Funnily enough, most of the times they get found out because a familiar or a friend of the composer was vacationing in Australia and happened to see the film in a festival. Other times it’s a rival producer who narrows that there’s no possible way his competitor could’ve afforded a specific song and then makes an anonymous call to the holder of the copyright. On TV advertising, some people – mostly from country areas – trust that they won’t get caught if they use a song by, for example, the Rolling Stones to advertise their little hair-saloon in Wagga Wagga; but then a fan of the band sees the commercial, becomes furious and calls the record label.” Yates also explains that different countries have different copyright regulations. For example, whereas in Australia a song becomes public domain 70 years after the death of the composer, in the United States it depends on the material’s first term of registration. “Someone can believe quite honestly that the song they’re using in their project is public domain, but when they send the film overseas they get a very nasty letter from the lawyer who looks over the state.” According to Yates in most of these cases, if the copyright holder decides that it was a genuine mistake and the infringer cooperates, a settlement fee can be arranged. “Best-case scenario you pay the fee and you’re able to keep the song in your film – but many times you will have to remove the song from the film. Worst-case scenario, you get sued. Infringing copyright can be very expensive – if you used a well-known song, they’re going to come down on you pretty hard. Strangely enough, some people actually get quite indignant when they’re discovered using a song for which they don’t hold the rights, and instead of saying that they’re sorry, they make things harder for themselves by not cooperating.” In the end, Yates claims that if in doubt, the best option is to ask the Australian Copyright Council for free advice. “They have fabulous leaflets,” she says. Or, obviously, to get a good music supervisor!”
