For whatever reason, traffic to this blog has shot up a bit lately, and I'm starting to get more music licensing questions from filmmakers via email. This week I had a particularly good one that touched on something directors and music supervisors encounter all the time.
This particular filmmaker is making a short documentary about a New York City street artist, and had found the perfect music by a band called Token Entry (iTunes link).
Only problem? The band broke up years ago, the label is long defunct, the publishing rights aren't listed on either ASCAP or BMI. There is a label—Go Kart Records—that picked up the master use rights and re-issued the music awhile back but they weren't returning his attempts to contact them....or mine, as it turns out. I could tell that the director had a case of temp love, and after a quick listen to Token Entry I couldn't blame him, so I volunteered to try to help.
My first question to the director was "How much can you afford?" He was only after a festival license, but those can cost as little as a couple hundred bucks, which I pointed out may not be a large enough figure to get Go Kart's attention. I asked if he/she could stretch it a bit and offer a few hundred above what the typical festival license usually costs (and in the process grabbing all the rights in perpetuity right off the bat). No go. The film's budget was firm, so that's what I went out there with. I sent my best, most professional inquiry.
It didn't work. The label and "only remaining member" of the band were totally non-responsive. It's not surprising, but it is a shame because it could have made these folks some money for very little effort and possibly created a few new fans in the process.. And yet, it's so completely typical. Go Kart is probably run by a small staff of people whose time is already very much spoken for; the music industry is a tough place to be these days, and they likely have to concentrate their efforts on the bands that are still together. Or maybe Token Entry has a complicated rights situation that makes licensing of that music more than a pain-in-the-ass than its worth.
Still, it's a shame. Truly independent and underground music is exactly the kind that emerging directors like this one should be putting in their films, and yet it's also the kind that's most likely to lead to blind alleys like this one in terms of rights. It's shocking how many artists are truly clueless about publishing and don't bother to register their works, which is exactly what you have to do in order to allow filmmakers able to be able to use your music, and pay you. Even record labels are often ignorant about licensing, and intimidated by it as a process.
As a follow-up question, the director asked me, "Do I get any consideration for doing due diligence?" In other words, "Can I still use the music if I can prove that I tried to get the rights legally?" The answer, unfortunately, is no. You don't get points for trying, and although a low key festival distribution scenario would be unlikely to stir up any legal problems, it's still a really bad idea to put unlicensed music in your film. Not only will your distribution possibilities dwindle down to nothing if you don't get the proper clearances, but new long tail distribution scenarios mean that your film may be made available to viewers in ways you never imagined, so make sure your legal bases are covered: get that license, and if you can--get it in that golden "all media/in perpetuity/universe" format.
