Why We Wrote This Guide
There is a lot of video content out there, and much of it uses music! Synchronization licensing is the process by which production companies of audiovisual works clear the rights for outside music to use in their videos. Synchronization is a burgeoning corner of the music industry, and for a musician, a placement in a major television show, film, advertisement or video game can boost their career in innumerable ways. This guide has been written to provide a comprehensive overview of the world of synchronization licensing.
Synchronization licenses (sync for short) refer to the “synchronizing” of a musical work with a visual. Sync deals give the licensee the right to use a composition copyright in an audiovisual work such as a movie, TV show or commercial, video game, or other similar work. Sync deals are negotiated between rights holders (music publishers / songwriters) and potential users (film production companies / YouTubers / etc.). There are no laws, regulations or consent decrees governing what sync fees must be; everything is negotiable.
For a songwriter, having a composition placed in a major network TV show, film, or Netflix series can be extremely beneficial to his or her career. Though sync fees vary greatly, a placement can help an artist or songwriter establish legitimacy within the industry, opening up more doors to producers, concert promoters, labels, publishers and the like.
As digital companies like Netflix, YouTube, Amazon, and Hulu produce more and more original audiovisual content, the need for music within that audiovisual content grows. Major companies have whole departments devoted to sync licensing, and music licensing companies have emerged as places for independent musicians to shop their music to potential licensees. The world of sync is a growing and important facet of the music industry.
When moving picture films were developed in the late 1800s, the technology did not allow the films to have audio. To supplement these early movies, live horn bands and string quartets would play in the venue to add audio elements. Because the musicians had to time the performances live, the music usually wasn’t even coordinated to match what was happening in the film.
When The Jazz Singer premiered in 1927, featuring vaudeville singer Al Jolson, the silence was broken. The film was the first to actually contain music in the production, as opposed to merely over top of it, as in the case of the horn bands and quartets previously mentioned. A recording of Jolson actually singing was synced up to the film, and thus music within film was born.
As tape recording technology developed, film producers and music directors gained the ability to splice up and insert music where it was needed. Songs could be “dubbed” over certain moments, instead of those songs having to be performed in the moment. Composers like Max Steiner and Erich Korngold began to specialize in scoring specifically for films, and music began to play a much more significant role in the movies.
The 1967 hit The Graduate featured songs from folk duo Simon & Garfunkel on the soundtrack, which helped boost the group’s career. While non-orchestral songs had appeared in movies before, this was the first film to make extensive use of the music from a popular group.
As sitcom and drama television shows became immensely popular throughout the 1960s and 70s, the need for music to supplement those productions grew. Jingle-writing for commercials became another revenue stream for songwriters, and advertisers eventually started to look for outside hit songs to use in their spots. Initially, it was common for artists and writers to regard licensing their music for use in advertisements as “selling out.” However, as the economics around music have changed, and as more and more major musicians have started to license their works for commercials, the perception has shifted. Having a song in a commercial or television show is now widely seen as being a potentially career-changing achievement, and sync licensing has become a commonplace practice amongst many music rights holders.
Sync vs. Master Use
Consider the following situation:
The music supervisor (the person responsible for placing songs in the movie and clearing the rights) for the film Pulp Fiction is putting together a selection of songs for the movie’s soundtrack. The man in charge, Quentin Tarantino, is adamant about using the song “Son of a Preacher Man,” in the movie. The music supervisor immediately decides to use the 1968 Dusty Springfield recording; that’s the hit, after all. However, Springfield didn’t write this song - John Hurley and Ronnie Wilkins did.
In order to clear all the rights for this song and recording, the music supervisor must obtain a sync license for the composition and a master use license for the recording. The supervisor would need to contact both Hurley and Wilkins or their publisher, in addition to Dusty Springfield’s record label. This is always the case when works are licensed for audiovisual content. If the same entity owns both copyrights (as is often the case for an indie artist/songwriter), then an all-in-one deal can be done. In the case of “Son of a Preacher Man,” however, separate parties need to clear separate rights.
The industry standard for sync and master license fees is to pay the same amount for both the composition and master recording. In contract law, this is called the “Most Favored Nations” doctrine, which states that the seller of a product agrees to give the buyer the best fee amount that they make available to any other buyer.
Sometimes production studios are able to clear the composition copyright from the music publisher but not the sound recording from the record label. In this case, production companies sometimes create their own recordings of the songs. As such, the sync license is necessary for any music in video, but in the case of a production company creating their own recording, the master use license is not.
The music that fills the background and space and under the dialogue in a film is called the underscore. Typically, the underscore is not the focus of the audio and rests behind more important dialogue or noise. There is also no set genre or style that defines how an underscore sounds. Typically, an underscore composer is hired by the production company, and there are many composers who specialize in this area. Film scoring is its own unique sub-industry, and the deals for composers are different from standard sync deals. In these deals, composers could be hired to work for a certain amount of time, or to deliver a certain amount of content. The works produced by the composer could be work for hire, depending on the deal. These are not sync deals.
Songs written specifically for a movie
Songs that are written for the purpose of use within a movie are typically composed alongside the film. Therefore, traditional sync deals are typically not used to license them. Instead of the production company going to a publisher to clear rights, a contract is developed between the individual writer and the studio, commissioning them to compose a given number of works. For example, Phil Collins composed a number of original songs for the film Tarzan, including “You’ll Be in My Heart.”
Sync licensing is required in order to obtain the rights to use a pre-existing song in a film. This licensing process is the music supervisor’s responsibility and it is usually conducted in the post-production phase of a film. The music supervisor contacts copyright owners and drafts a licensing agreement, carries out negotiations and completes the process to lawfully obtain their rights to use the song. The specific components of these deals are further detailed below in the Important Deal Points section.
Foreign performance royalties
In the United States, music in film does not generate performance royalties when movies are shown in the theatres. This is not the case abroad. When a film is shown in movie theatres in foreign countries, the musical performances are tracked with cue sheets and performance royalties are paid to the songwriter and music publisher. If the film is to be distributed globally, a sync placement could generate significant performance income for the songwriter and publisher on top the initial flat fee. In this case, it would be important for the songwriter to be registered with a performing rights organization that has an affiliation with a foreign collecting agency, which would allow the writer to capitalize on these royalties.
If the song is used in the film’s soundtrack, mechanical royalties can be earned from the selling or streaming of the compilation. This is an important consideration in negotiating the deal.
Sometimes, production companies will only need to clear a certain song to use in the trailer. Songs can also be used in both the film and the trailer. In the former situation, a sync deal will be done for that specific trailer commercial and television performance royalties can be earned on top of the flat fee. In the latter case, the trailer deal could be a part of the overall sync license, and could take the form of an “option” clause, giving the production company the choice of whether to use the song or not. Trailer uses are sometimes referred to as “out-of-context” uses, and the money usually comes from the marketing and promotion department of the film company, rather than the production department. This could mean that the rights holders work with totally different departments when doing these deals.
Television sync licenses are, for the most part, similar to film sync contracts. An important difference, however, is the fee. The fee is generally lower for television because TV placements earn performance royalties and budgets are typically lower for TV shows than for major motion picture productions. Network shows tend to pay much more than shows on local TV and cable.
If a musical work is placed in a television show, that placement generates performance royalties in addition to the original sync fee. This can also be the case when films are syndicated on television. This is an important part of the sync negotiating process, because production companies sometimes wish to take a cut of the performance royalties. It is incumbent upon the rights holder to be aware of clauses like these in sync contracts, because depending on the nature of the deal, performance royalties could be much more lucrative than a one-time sync fee.
If an advertising agency opts to use an existing song in a commercial, then a sync license is required. Nowadays, a sync placement in a major advertisement can boost an artist’s or writer’s career, in terms of both royalties and wider recognition. For example, “Ho Hey” by the Lumineers blossomed in popularity shortly after it was used in a Bing commercial in 2012. And after Chevy used Fun.’s “We Are Young” in a Super Bowl commercial, the song climbed to and stayed at the top of the Billboard charts.
Commercial sync fees depend on the size and duration of the campaign. A song placed in a nationwide, year-long television campaign will earn much more than, for instance, a song used in a car dealership commercial run for three months on local channels.
Sync licensing for online producers of video content works in much the same way as film and regular television. Netflix, Hulu and the like employ music supervisors to place songs in their shows and movies, and they negotiate with rights holders based on the same set of conventional deal points: type of use, budget, whether the song is a hit, etc.
Anyone posting a video on YouTube that contains outside music technically needs a sync license to do so. YouTube’s Content Identification system can detect a lot of copyrighted content and rights holders often have the capabilities to flag and block it. However, these rights holders typically don’t go through the hoops of pursuing infringement actions. Instead, YouTube offers monetization abilities to rights holders, which allows them to capitalize upon ad revenue generated from videos containing their intellectual property.
However, this does not mean that someone posting a cover video or other video using someone else’s composition does not need a license. Technically, a sync license from the owner of the composition is needed any time someone uses their composition copyright in a video.
Sync licensing also happens when creators of video games need musical content. Having a song placed in a video game can also be incredibly lucrative. Think about Grand Theft Auto, Fifa and Madden, or Guitar Hero. Millions, even billions, of people play these games regularly and etch the soundtracks into their consciousnesses. According to an executive at the video game producer, EA Sports, any given song on the Fifa 19 soundtrack will be be heard around the world nearly a billion times.
Music publishers and supervisors have relationships with music directors from video game companies, creating a pipeline for songwriters to license their works.
Important Deal Points
Synchronization deals are different from other music licensing procedures in that there are no regulations or underlying copyright rules governing the fees charged. It is almost completely market-based, and there are a plethora of different considerations that negotiating parties make when doing these deals. Below are a number of deal points that could be important in any given sync license.
From Jeffrey and Todd Brabec on ASCAP.com:
- How the song is used (i.e. vocal performance by an actor on camera, instrumental background, vocal background)
- The overall budget for the film, as well as the music budget
- The type of film (i.e. major studio, independent, foreign, student, web)
- The stature of song being used (i.e. current hit, new song, famous standard, rock n' roll classic)
- The duration of the use (i.e. one minute, four minutes, 10 seconds) and whether there are multiple uses of the song
- The term of the license (i.e. two years, 10 years, life of copyright, perpetual)
- The territory of the license (i.e. the world, the universe, specific foreign countries)
- Whether there is a guarantee that the song will be used on the film's soundtrack album
- Whether the producer also wants to use the original hit recording of a song, rather than re-recording a new version for use in the film
- Whether the motion picture uses the song as its musical theme as well as its title
Music supervisors are hired by production companies to place songs in the show or movie, and to clear the rights for those songs. There are many other things that supervisors can do depending on the breakdown in the chain of command of the production company. Supervisors can, among other things: analyze scripts and contribute to the decisions on whether to use scored or outside music; negotiate clearance with rights holders; help create the music budget for the film based on expertise about going rates for songs; and help with the production of sound recordings in case a new one is needed. Production companies often hire the services of outside music supervision companies or specialty personnel.
Independent musicians not signed to a label or a publisher may not have business people with back channel connections working to promote their music to film and television production companies. Nevertheless, hundreds of companies have emerged to meet the growing demand for sync clearances. With many music licensing companies, musicians can often simply sign up and make their works available on the company’s platform. Production companies will then surf the platforms looking for the exact type of music they need, and when they find it, the licensing is done through a relatively standardized, impersonal process.
This business model allows independent writers and artists to get their works out there, and gives production companies a cheaper alternative to major music publishers and record labels. They can often use licensing companies as one stop shops because the platforms contain the rights to both the composition and the master (providing that the artist and writer are the same person). These sorts of companies, called production music libraries, often allow songwriters to retain ownership over their copyrights while simultaneously extending sync licensing rights to the music library.
Brief list of licensing companies (there are hundreds more):
It is important to note that these companies are all different. They specialize in different types of music, have different business models, and the terms of the individual sync deals vary greatly. In some cases, the songwriter can just sign up for the service. But often, the licensing companies vet and recruit writers in a similar fashion to traditional publishers and record labels. It is important for any musician thinking of trying to sign a deal with one of these services to do diligent research and determine which one best fits their music and career goals.
There are many different publications and websites, like the ones listed below, that can help artists and writers wanting to obtain sync placements find the right people to help them do so.
Luke Evans, Mamie Davis, Jacob Wunderlich, Rene Merideth, Jeff Cvetkovski, & Aaron Davis
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