Boombox Serenade

Music Licensing Dilemma: When The Label Won't Return Your Calls

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.

What does "Most Favored Nation" status mean for a soundtrack?

So, I've been meaning to write more about this year's "Epic Music on a Not So Epic Budget" panel at South by Southwest, which was absolutely great. The room was filled to capacity with a truly savvy audience and my wonderful co-panelists Caroline Suh and Erika Frankel of Frontrunners shared a wealth of information about the music licensing process, including how they managed to craft their soundtrack (Of Montreal, Album Leaf, Mogwai et al) on totally reasonable budget as well as some valuable, seldom discussed insight on how most favored nation status affected their approach to soundtrack. I thought I'd write a bit about that, since it might come up in your licensing adventures. 

"Most favored nation"—or MFN—is a special status that you, the filmmaker, grants the rights holder, usually the label or publisher. Most favored nation status is manifested as a clause in the music licensing agreement between the filmmaker and the label/publisher. Labels and publishers usually initiate the request for MFN status, and it means that they want you to pay them the highest price negotiated by any single rights holder in the soundtrack. For example, if RCA asks $4,000 for a Kasabian track with an MFN clause in place and then you end up licensing a CocoRosie track from Touch and Go at $4,800, you'd have to bring RCA's fee up to $4,800 as well. The higher profile the artist/track, the more likely it is that a label will ask for and expect the MFN treatment, although according to one music supervisor I know, everyone asks for it. She also recommended that you never, ever try to fudge things and pay different amounts to different MFN'ed parties when you have such a clause in place, because "somehow they'll find out."

(Not sure what all these rights are that I'm talking about? Check out the free music licensing guide.)

It should be noted that sometimes when a publisher wants MFN status, it just means that they want the same amount that the label gets for the track. So, say a filmmaker wants to use Social Distortion's cover of "Ring of FIre." First, of course, they have to go to June Carter Cash's estate to secure the publishing rights, then to Epic Records for the master use rights. The Cash estate may negotiate for an MFN clause, meaning they want to make sure they get as much as Epic gets. So if Epic negotiates a higher fee for the recording, the Cash estate gets that same amount. (This generally only happens when the recording already exists. If you're having a band record an existing song specifically for the film, MFN generally doesn't need to some into play.)

Many filmmakers take the approach of granting MFN status only to those labels and publishers that have the really high profile tracks they need, which is a totally valid approach. Other times, you'll hear filmmakers use MFN to talk about a blanket approach to music licensing, where the they simply offer the same price for publishing and master use rights to every single rights holder, based a simple, mathematical divvying up of the music budget.

One filmmaker I know simply crafted a letter saying to labels and publishers alike, look, this is our budget and this is how much we can afford to pay for each track. We'd like to "MFN" all of you and pay you each the following rates for both publishing and master use. That film had a $100k budget, and since about 20 percent of that was reserved for music, they were offering $1200 for both publishing and master use on each track for cable rights, $500 each for DVD rights. They sent that letter to the smaller labels first, so that they could then go to the larger labels and say that several other labels had already agreed to the deal. I don't necessarily recommend this approach; it's usually better to do things on a one-to-one basis, but it is one approach.

MFN represents a particular bugaboo for documentaries, because the filmmaker can't necessarily decide to simply use another track when the price gets too high. It often happens that a key scene will include a random snippet of music--like someone's cellphone ring tone, or a snippet of someone singing along to the radio--and the publisher of that music may decide that they're going to make the documentarian license it in order to keep it in the film (boo! hiss!). In that case if it's a larger entity that's able to ask for MFN status for themselves (and many demand it), they can really put the screws to the documentary's budget (boo! hiss! again). Documentarian Jeffrey Tuchman was quoted as saying “It’s like going to go the grocery store and pinching your pennies and using your coupons and then the last thing you buy is a steak for twenty dollars and then every soda and bag of M&Ms suddenly costs twenty dollars.” MFN clauses can make budgeting really challenging in this way.

How common is the MFN arrangement on soundtracks? Very common, although not always 100 percent effective because with their usual cunning filmmakers have figured out a way around these clauses when it suits their needs. One audience member at our panel revealed that when filmmakers want to avoid having to pay all the MFN'ed parties, they will sometimes work out an arrangement with a band where they pay them the normal fee same as everyone else, then attach a side letter offering an additional sum for something innocuous, such as attending the premier or something else that they "would have done anyway." In this way they can avoid paying the higher rate to every other label on the soundtrack that they granted MFN status. Last year's film adaptation Tranformers apparently struck this deal with Linkin Park; the band got $25k each for publishing and master rights on one song, but a side letter gave them an additional $150k for some light marketing duties. Now bear in mind that Linkin Park is as blockbuster an artist as they come, and that they were writing a song specifically for the film, so those licensing fees represent the outer limits of the ol' ballpark.

The MFN clause was just one rather specialized topic we covered in the panel; others included the basic steps of licensing music, strategies for getting good price quotes, reasons to use emerging versus established artists, why "public domain" music is basically a myth, and the huge benefits—both logistic and artistic—of starting the music licensing process sooner versus later. My hope is that this panel help people to understand that process as well as it can be understood in a single hour. For everything we didn't get into, I recommended that participants download the free guide, which I plan on expanding thanks to the many intelligent questions we got that day.

My sincere compliments and thanks go out to Jarod Neece, the person who does all the film panel programming at SXSW. I think a part of what makes this festival so great is how unusually open to feedback people like Jarod are. Every year, both on a personal and an institutional level, they actively solicit feedback on ways to improve and adapt the event, when many others would be content to sit back and stick with what they've already done. As a result, the festival is always evolving and growing, and for a filmmaker still learning their craft, I think it's the one that is most worth the expense of a badge. Often you learn as much from the audience members themselves as from the filmmakers and other panelists. It's fantastic.

And like I said, I got asked a lot of other great questions during the panel, and I'll expand those into future posts as well, with some new sections in the free licensing guide too. If you have any comments or questions, as always, you can email me at shannon [at] boomboxserenade.com. I'd particularly love to get feedback from filmmakers about their own experiences with "most favored nation" clauses for soundtrack and how they feel about them.

The Dearth of Useful Info on Music Licensing: Part III (A Happy Ending)

So after seeing first hand how difficult it is to put on a good music licensing panel, I finally had a chance to do one myself. This past July I was lucky to be invited to host a workshop on music licensing at the National Association of Television Producers and Executives' LATV Fest, and I was really excited to test my theories about what folks really want and need to know about the process.

By the way, anyone looking to take their production chops in TV to the next level: this is a great little event. You know it's a great event when the opportunity to hang out with the attendees alone seems like it'd be worth the registration fee, let alone the panelists, whose talks were among the most intelligent and relevant I've ever had the pleasure to attend.

My workshop was booked full in advance and was slated to take place on the "patio" of the Sunset Strip's House of Blues, which turned out to be an astoundingly beautiful room—all carved sandalwood and velvety Persian rose patchwork—like the inside of Scheherazade's jewelry box. I started things off by showing a well known clip from The Big Lebowski—the one where the character Jesus (played by John Turturro) is lining up his shot at the bowling alley to the Gypsy Kings' Spanish cover of The Eagles' "Hotel California."

I showed this clip partly to demonstrate how big the artistic payoff can be when you start thinking about music in pre-production phase versus post, but also just to start things off in an un-tedious fashion (licensing talk gets dry, fast). I introduced myself and rattled off the topics I planned to cover in the session. I asked the participants if this list seemed to match what they were looking for, and It did, so we were off to the races.

We covered some serious ground. Topics of discussion included the benefits of using—at least in part—a "various artists" approach to music in television, the reasons you need to get a license to use the music in television, the two types of rights you need to acquire for each piece of music, the right way to approach an individual or organization to get those rights, strategies for negotiating licenses on a budget, strategies for finding and working with a music supervisor, and more.

I packed in as much information as I could, stayed as engaging as I could, took as many questions as I could, and before I knew it, the workshop was over and happy hour had begun in the adjacent room. There I met many of the people who had attended the workshop, and the more I learned about them, the more difficult it was to believe that I'd had anything to offer them by way of expertise; they were so accomplished already in their fields, so smart and engaged in their work, but well, there you have it. Music licensing is a funny thing. Even among the pros, it's easy to stay somewhat unclear on how it's done. I got what seemed like a lot of positive feedback on the session, and I was happy with how it had gone.

When I got home I found myself expanding the guide based on their questions. This guide of mine is becoming almost book like!

The Dearth of Useful Info on Music Licensing: Part II

So, fast-forward to March 2007, and Magnatune is presenting a workshop on music licensing at the film festival portion of South by Southwest. Because I'd proposed the session, I got to name it: "Epic Music for your Film on a Not-so-Epic Budget," and I saw it as a chance to present key information that I felt had been overlooked in the big BMI-sponsored session in the previous year.

Easier said than done, as it turns out.

The room in which the workshop was held was full to capacity, with several people standing against the walls. Magnatune's founder John Buckman was our own representative. As his co-panelists the SXSW  folks had chosen Jason Janego, Head of Business & Legal Affairs for Magnolia Pictures (Murder Party, Crazy Love, Jesus Camp, Fay Grim), and entertainment lawyer Roger Kass of RingTheJing Entertainment, whatever that is. 

No moderator had been assigned to the session, so things started in a rather free-form fashion. It soon became clear that there were several musicians in the room, all of whom wanted to turn the topic from "how to license music for films" to "how to get my music into films." To help the panelists out, I began acting as a de facto moderator and tried to steer things back toward the filmmakers' needs.

Now, Magnolia Pictures is a deeply cool production and distribution company. Really, they don't come much cooler. Their work, their choices, their commitment to truly interesting material—it's exceptional and they've put out some great stuff in recent years. So it really surprised me when Jason Janego advised the audience to "just use any music" in their films. For someone sitting on a music-in-film panel, he didn't seem very enthusiastic about the aesthetic role music plays in the medium, and if he had any pointers on how to find/license good music on a limited budget, he didn't mention them. He doesn't work on production side, so I guess it's understandable, but I was somewhat disappointed on behalf of the audience. The RingTheJing guy might as well have not even been there. When he spoke at all it was in such a rarefied patois of industry and legal jargon that went straight over the participants' heads. John was the sole panelist to offer some basic, cost effective strategies, but they mostly hinged on Magnatune's music licensing service—a great option, but also very unique in the industry.

At the session came to a close and the participants began gathering up their things, I mentioned to them that I'd brought some free copies of a rough, step-by-step guide I'd just started on the general/overall music licensing process, including strategies for getting any label to work within a smaller budget. Well, they cleaned me out—took every single copy I had, and I continued to get multiple requests for more at our booth throughout the week. By the time the festival was over, I was on a first name basis with the folks at Kinko's in downtown Austin.

The entire experience was my second taste of how difficult it is for beginning filmmakers to get thorough information on the music licensing process, even when I myself had proposed the workshop that was supposed to have presented it to them. Once again, I emailed the SXSW programming folks to share my impressions. I suggested that next year they might consider including a few panelists from their own annual crop of featured directors and/or music supervisors, especially those who have managed to craft incredible soundtracks on smaller budgets—like Jamie Babbit of Itty Bitty Titty Committee or Gary Hustwit of Helvetica.

Another thing I did was decide to expand the music licensing guide and make it more widely available—something that should happen shortly on this blog.

More in tomorrow's thrilling Part III conclusion!

The Dearth of Useful Info on Music Licensing: Part I

Way back at the 2006 South by Southwest Film Festival, I found my way to an upstairs conference room to check out to what I hoped would be an interesting cross-section between the film and music portions of the event. The panel was entitled "Choosing Music for Film: The Creative Process," and the large room in which it was being held was half-full or so, with an audience comprised primarily of film students from the University of Texas. A smattering of industry types hovered around the edges of the scene too, ready to slip out should a call need to be made or taken.

A range of film pros made up the large panel—everyone from executive producers to composers—plus a few random guys from now defunct start-ups. Gina Resnick—producer of Female Perversions and Clockwatchers— was there, as was Mark Suozzo, composer for The Notorious Bettie Page. The sole director in attendance was Ron Mann, who made the apparently fabulous Tales of the Rat Fink, which I still haven't seen. The moderator was Doreen Ringer Ross, who moderates these sorts of panels thing on behalf of BMI all the time.

From the get-go, I could see that this panel wasn't going to be of much practical help to the aspiring filmmakers in the audience. They seemed, not surprisingly, to be wondering mostly about how to acquire the rights to use various types of music for their work. But the panelists' introductions alone took up a third of the allotted time, after which they strayed into the realm of amusing but not very informative anecdotes. Only Gina Resnick seemed to realize that some practical information might be helpful, at which point she tried to break down the steps of acquiring music rights for film. She's not a music supervisor or a DIY director though, so the info she presented was very general and she ended it by saying that "if music licensing were surgery, it would be brain surgery." (Not true, by the way) Another panelist advised audience members to "just hire an entertainment lawyer." I looked around the room and tried to guess what the average age of the audience members might be. I'd say it was about 22 or 23.

I started to become bothered by the fact that however unintentionally, the panel was presenting a really daunting view of the music licensing process to young filmmakers, so during the Q&A session I stood up and said that rather being brain surgery, I thought music licensing could actually be more of an outpatient procedure, and spoke a little bit about that. After sitting down, several people around me asked for my business card. After the panel officially ended, I was surrounded by people wanting it.

It was my first taste of what a strong need for this information on music licensing there is within the filmmaking community, and how difficult it can be to get. It's been suggested to me that industry folks deliberately withhold information in order to protect their positions within a competitive market, but I tend to think that what actually happens is that they're so experienced, they simply don't remember what sort of things true beginners really need to know.

In any case, I emailed one of the programming folks at SXSW to share my opinions on the panel with him, and he not only agreed with my feedback, he said that Magnatune (the record label I work for) might be able to host a smaller music licensing workshop at SXSW the following year. I thought it would be a great opportunity to present exactly the kind of uber-practical information lacking in the big BMI sponsored panel, but that would turn out to be only partly true. More in the upcoming Part II!