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

Jun 26, 2009

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.

10 Comments

  1. You are right … due to the complexity of the contractual relationships surrounding most recordings and songs, it can be very difficult to clear specific recordings for inclusion in video presentations… and for a number of legal reasons … prominently anti trust issues, it is unlikely that a one stop that can handle all inquires will ever come into existence.
    There are some alternatives, however:
    If your production can get along without a specific recorded performance such as Aerosmith’s version of “Everybody Have Fun Tonight” … there may be a cover recording of the song that could be a lot easier to secure because, most likely, you would have removed a layer of high price attorneys and egomaniacle artist approvals from the mix.
    Certainly, you are aware of music libraries that may have something ‘close’ to what you want at a much cheaper price.
    Additionally, the volumes of available recordings by indie artists that populate the Net may also provide options that will suffice – again, at a ‘please, please, use my song’ price.
    Finally, many music publishers and record companies, major and indie, have gathered many tracks where rights to license have been pre approved by all rights owners concerned. The works involved may not include Aerosmith’s version of, “Everybody Have Fun Tonight” but might include something close enough for rock n roll.
    If you’ve just GOT to have that one specific track or your project goes up in smoke … you’ll just have to wait out the clearing process … and, of course, if those you are negotiating with know you can’t move forward without the track … the price will be sky high.
    Hope this helps.
    As a P.S.. Neither ASCAP nor BMI handle the rights you need, and both are prohibited by law from getting into that business.

  2. Love it! In fact, I would like to include this as a shaded box in the chapter on Intellectual Property in our forthcoming Communications Law textbook. I hope I don’t have to jump through 100 hoops to get the rights :)

  3. I attempted to start a service that did just that, it was called”T-BOM” ( the betterment of music) but I ran out of funding to develop the right search and learn algorithms. Basically it allowed anyone to immediately search any style of music, for any type of format and directly connect to the composer. No graphics, no ads, no rating systems. It was totally text driven with dozens of mini pull-down menus, optional manual input and links to publishers and composers.

  4. as a person who gets royalty’s from plays, i say get it played anyway you can, and get the mechanicals simple as possible……… and stop making themes under fifteen seconds dammit!!!!

  5. Great article. As a songwriter with millions in sales worldwide, I appreciated the balanced approach. I agree, a centralized platform could help boost the use of popular, mass produced songs, but because of the current situation, independent artists are receiving much love from producers. Whatever platform was created it should not be in detriment to the promotion of independent artists. As you so appropriately say, “our country, culture – and airwaves — would be richer for it.”
    http://www.mundotribe.com

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  8. As a musician, licensing is hellish. Even the places doing it right are really cutting artists out of a lot of well-deserved money.

  9. There’s a couple of options available for musicians, including PumpAudio, but the userbase is still relatively small. Hopefully something better crops up soon.

  10. Love it! In fact, I would like to include this as a shaded box in the chapter on Intellectual Property in our forthcoming Communications Law textbook. I hope I don’t have to jump through 100 hoops to get the rights :)

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