Open Mic

Let the Music Play: Why Songwriters are Hurting Their Own Cause

Bruce David Klein Posted June 26, 2009 at 2:39 PM

It’s a crime!

Over the past 75 years or so, American culture has generated a breathless portfolio of extraordinary pop songs from Tin Pan Alley, to the Golden Age of Broadway, to Rock N’ Roll, Country, Rap, Jazz and on and on – and yet for the majority of these songs, it’s nearly impossible to include them in a television show (especially budget-challenged non-fiction shows).

Reality shows, documentaries, lifestyle shows – especially those that proliferate on cable networks like A&E, Bravo, Discovery Channel, History, National Geographic and TLC – would greatly benefit from a quick, easy and cost-effective way to clear popular music (and publishers and artists would find a new stream of revenue as their traditional revenue streams shrink).

However, the barriers currently in place for producers desiring to incorporate such music into their productions are…borderline insane.

Got a hit show on A&E? Want to grab 30 seconds of a song by Aerosmith for an important scene? First you have to track down the entity that owns the publishing rights to the song, then you have to track down the entity that owns the master rights to the song (almost always these are two different people). Also, each “side” of rights may be broken down into multiple owners. For example, the publishing rights to the hit 80s song “Everybody Have Fun Tonight” are owned 10% by BMG (which is ASCAP) and 90% by Spirit One Music (which is BMI).

Some songs we’ve cleared have almost 10 different “owners” (and many popular songs – especially hip hop songs – have many parties simultaneously claiming ownership). To sort this out takes a fair amount of work, even when we employ music clearance specialists, especially during the crush of a production. But, all that’s easy compared to the next step: negotiating the deal.

Music rights holders are rightfully freaking out. One-by-one their formerly rock-solid sources of income are drying up – and they’re nervous and are not in the mood to be thinking outside the box (maybe that’s part of the reason why they are in their predicament in the first place?). So you want a 30-second clip of Aerosmith’s “Dream On” for a documentary? My experience is that it will take you at least 4-6 weeks to negotiate the rights, including spending uncounted hours arguing over complex -- but ultimately meaningless -- step-up deals and other future options and “triggers.”

Don’t even get me started on MFN – most favored nations clauses – which cause significant mental distress!

So let’s say you get through all of this, and -- congratulations! -- you’ve negotiated the deal. Ready to slot the song into the show? Not so fast.

There’s often a little thing of artist approval, which can range anything from a 7-day approval process to chasing down Paul Simon while he’s on tour to approve use of his song in a show (been there, done that.)

Further complicating all of this is that there are some limited circumstances where you can actually “fair use” music clips (i.e. use clips without a license). This is based on the fair use doctrine, which is a crucial friend to documentarians. It actually allows certain in-context use of brief clips of a song without need for licensing, although there are some rules regarding its implementation (i.e. context, length, etc). You should have an attorney on retainer review all fair use of songs and other material.

My question, amidst this labyrinth of hell, is simple: Why isn’t there an easier way to do this?

When a producer licenses a photo from one of the stock photo companies, it’s simple: one call, a quote, done. There is a huge business in the thousands of quick deals closed daily between producers and stock houses for photos and footage.

Why not something similar with music? Maybe if there were some kind of collective – a “one stop shop” for music clearances put together by rights holders — that could be the ticket. Perhaps BMI or ASCAP could get into this game?

As someone who has created, produced and/or directed numerous series, mini-series and specials and owns hundreds of trademarks and copyrights, I completely understand and respect an artist’s right to control and exploit his or her creation. I can also easily understand why not all artists seek exposure for their songs in other media.

However, I believe that a clear, smart system – a system that fairly represents artists, and yet one that is easy for producers to navigate – would lead to a dramatic and long overdue use of popular music in TV shows and other entertainment.

I say “crank up the music! “ Our country, culture – and airwaves — would be richer for it.