Transcript publishing, recording, synchronisation and mechanical rights

THE LAW OF SYNCH:
PUBLISHING, RECORDING,
SYNCHRONISATION AND
MECHANICAL RIGHTS
COPYRIGHT
• What is it?
• How many types of musical copyright are there?
• How do these arise?
• What does it allow a copyright owner to do?
• Why does this matter to me?
WHAT IS COPYRIGHT?
•
A property right, one of several intellectual property rights.
•
An indication of ownership and authorship of a creative work.
•
It is a right acknowledged and protected by law worldwide.
•
In the UK (and EU) copyright arises automatically upon the creation of the work with
no formal application or registration process (unlike, patents and trademarks).
•
You cannot copyright an idea!
•
An overwhelming majority of the music you deal with will be copyright protected.
HOW MANY TYPES OF MUSICAL
COPYRIGHT ARE THERE?
1.
PUBLISHING RIGHTS: The musical composition and the lyrics.
2.
SOUND RECORDING RIGHTS: A new separate copyright in the recording that
encapsulates the composition.
3.
THE PERFORMER’S RIGHTS: anyone who performs on the sound recording has a
new and separate copyright in that performance.
4.
MORAL RIGHTS: Anyone involved in the writing and/or performing has their own
moral rights. The two key moral rights are: paternity right – the right to be identified as
the author of the work in certain circumstances; and integrity right – the right to object
to derogatory treatment of the work.
HOW DO COPYRIGHT AND MORAL
RIGHTS DIFFER?
• In contrast to economic rights under copyright moral rights are concerned with protecting
the personality and reputation of the author.
• In the UK the moral right to be identified cannot be exercised unless it has been asserted
(eg.by written notice) equally these rights can be waived by the author.
• By contrast, in other countries (such as France) these are inalienable and irrevocable
rights.
WHAT ARE “MECHANICAL” RIGHTS?
The mechanical right is the right to make a permanent recording of a piece of music.
Anyone who records a copyright musical work needs permission from the owner of the
publishing rights in the composition; this will normally be given in return of a royalty being
paid to the owner of the song.
WHAT ARE “SYNCHRONISATION”
RIGHTS?
The right to synchronise the sound recording to a film or exhibition of that film.
A film producer must obtain 2 synchronisation rights:
• the right to synchronise the sound recording; and
• the right to synchronise the underlying composition and/or lyrics encapsulated in that
sound recording.
WHAT DOES OWNERSHIP ALLOW
COPYRIGHT TO DO?
• To copy and record (also known as the “mechanical right”) the music;
• To issue and sell copies of the music;
• To rent or lend the music to the public;
• To perform, show or play the music in public;
• To communicate or broadcast the music to the public in any other way;
• To make an adaptation of the music; or to do any of the above in relation to such an
adaptation.
WHY DOES THIS MATTER TO ME?
• Copying: a film producer will need to make a physical copy of the music to record it onto a soundtrack to
run in synchronisation with their filmed imagery;
• Issue/Sell: they will be selling the film (to broadcasters, distribution companies and the general public);
• Renting/lending: they will be renting their film to the general public by DVD, Blinkbox, Netflix, etc…
• Communicating/broadcasting: they will be showing their film to the public either in cinemas; or in their
homes via TV broadcast;
• Adaptation: they may need to edit the music to fit the images, or extend it; they may also decide to rerecord existing music.
To do any of the above without the permission of the owner of the copyright is breach the owner’s copyright.
WHY IS IT IMPORTANT?
• An infringer can be sued for damages
• The copyright owner may prevent the exhibition of the film
• Any third party the producer deals with in relation to their film – e.g. distributor, cinema
chain, TV broadcaster – will need to know that the producer has all necessary consents,
because they too may be in breach of the owner’s copyright if they do any of the above
acts. As such without them it is highly unlikely that a third party will take on the film; or
they will look to the producer (or distributor) to reimburse them for any losses they suffer
as a result of a legal action against them by the copyright owner.
FIRST OWNERSHIP - PUBLISHING
RIGHTS
LOOKING AT FILM MUSIC COMMISSIONED, COMPOSED AND RECORDED
FOR THE FILM…
Publishing rights firstly belong to the author of the musical composition, and the
author of the lyrics automatically upon creation of the composition.
AUDIENCE QUESTIONS
• If I cover a song and release it on SoundCloud, do I need a license?
• How do copyrights affect royalties?
• Can you explain the PRS license that includes graphic rights, and is there something
similar in the US?
SECOND OWNERSHIP – PUBLISHING
COMPANIES
• Typically composers will assign their copyright in their own compositions to a music
publishing company: the publishing company thus acquires the exclusive right to do all
the things with the composition that previously the composer could do.
• This means that the composer retains no rights of ownership in his songs – if he/she
wishes to record of perform his own songs, he/she must obtain the consent of his/her
publisher.
• Future music composed by the composer will automatically belong to the publishing
company.
WHY WOULD A COMPOSER DO THIS?
• Money – in return for the assignment the composer will receive an upfront returnable fee
(an advance), plus royalties from subsequent exploitation of the song;
• Managing a portfolio of songs – ie. exploiting it – is not a creative job; it is an
administrative and commercial business. This relieves composers of the business side
allowing them to focus on the creative side!
• A major publishing company will be better able to sell and market songs internationally
than an individual composer and will be able to negotiate better deals.
THIRD OWNERSHIP – COLLECTING
SOCIETIES
What do collecting societies do?
• Issue licenses to anyone who wishes to make a particular use of a piece of music: e.g.
use it in a film, broadcast it over radio or on TV, use it in an advertisement; and
• Collect the revenue from these uses, and pass this back to the publishing company who
will in turn pass back the composer’s royalty for each such use to the composer.
EXAMPLE
In the UK - the PRS (Performing Rights Society) collects license fees for the public performance and
broadcast of musical works; which together with its mechanical copyright arm collects and distributes
‘mechanical’ royalties generated from the recording of music onto many different formats.
Why would a publishing company do this?
• It is cheaper and more efficient for a publishing company to outsource these administrative tasks.
• However, some don’t – some publishing companies still manage these affairs on behalf of their
composers and only allow the collecting society to collect and distribute royalties.
HOW DO YOU KNOW WHO TO DEAL
WITH?
Step 1:
The film producer (or director) first finds a composer
Step 2:
They ask the composer if he/she has a publishing contract with a
publishing company that covers the music he/she is about to write
for the film.
Step 3:
Then they ask the publishing company if they have assigned/licensed
any relevant rights to a collecting society.
Step 4:
If yes, they will contact that collecting society for appropriate
licenses.
WHAT CONTRACTS DO YOU NEED?
1. If composer has no publishing company relationship, the film producer will want an
assignment of the copyright in the underlying music and lyrics.
2. If either the composer will not assign these rights; or the composer has already
assigned these rights to a publishing company, the producer will need a license to
record the music (a mechanical license) and a license to synchronise the composition to
the film (a synchronisation license). These can often be taken together and dealt with in
one contract.
3. If the composer also performs on the sound recording of the score, the producer will
need his consent to use that performance.
RECORDING RIGHTS
First ownership
Generally the copyright in a sound recording belongs to the party that makes the
arrangement for that sound recording to take place.
Ideally this is the artist or writer as recording costs will be met from their budget.
It is arguable that if the producer pays the composer a sum of money as part of his/her
fee to organise, arrange and produce the recording sessions, then he/she is the party
who made the relevant arrangements; thus the composer owns the copyright.
RECORDING RIGHTS
Second ownership
The composer or any of the principle performers may have an exclusive recording
contract with a record company. This means they can only record for that company;
therefore the record company may own the copyright in the sound recording.
There are some advantages to this:
• Record company can pay recording costs.
• Record company can market and distribute any soundtrack album.
RECORDING RIGHTS
Third ownership – collecting societies
It is not as common as with publishing companies, but some record companies do use
collecting societies.
Also, it is very common for a smaller record company to be party of a much larger
international organisation.
RECORDING RIGHTS: HOW DOES A FILM
PRODUCER KNOW WHO TO DEAL WITH?
Step 1:
They find an artist / performer.
Step 2:
Ask the composer if they have contracts with recording companies that will
impact on this recording.
Step 3:
If yes, contact the recording company to discuss terms; enquire if the company
has assigned/licensed any relevant right to a collecting society.
Step 4:
If yes, contact that collecting society for appropriate licenses.
AUDIENCE QUESTIONS
• What does a sync agent need in place to facilitate the license if they don’t own the master
or the publishing?
• If you’re a writer/composer/performer/publisher on a song that you want to submit to a
music supervisor for a sync in a film, where do you register the moral and publishing rights
in the UK?
WHAT CONTRACTS DO YOU NEED?
Assuming that the composer/performer has no exclusive recording contract, it is safer to
ensure that the producer gets an assignment of the copyright in the sound recording from the
composer, even if the producer pays and arranges for the recording sessions.
How?
In the composer’s agreement.
Why?
To over-rule any possible dispute over who has actually made the
necessary
arrangement for the recording to take place.
If the producer does have to deal with a record company, he will need:
• A license to synchronise the sound recording to the film (a synchronisation license) which
ideally will contain a clause stating that the record company will be responsible for
obtaining all necessary performers’ consents.
LICENSED-IN EXISTING MUSIC
1. PUBLISHING RIGHTS
Ownership - Likely to be owned by a publishing company and administered by a
collecting society
What contracts do you need?
The film producer will need a mechanical license and a synchronisation license. These
can often be taken together and dealt with in one contract.
LICENSED-IN EXISITING MUSIC
(CONTINUED)
2. RECORDING RIGHTS
Ownership – Record Company
What contracts do you need?
A synchronisation license which ideally will contain a clause stating that the record company will be responsible for obtaining all
necessary performers’ consents.
Cover versions – A combination of rights here:
• Publishing, mechanical and synchronisation rights will be owned by the composer/publishing company and probably
administered by a collecting society; but
• As this will be a new recording of the composition, copyright in the sound recording will be a matter of
agreement (i.e.. the same situation as if the producer was recording music commissioned for a film).
PERFORMERS RIGHTS
Ideally, the producer should acquire ownership of copyright and performer’s consent for
the exploitation of the film “by all means and in all media now known or hereafter invented
for the life of the copyright (of the film) throughout the world and without further obligation”
except perhaps any agreed royalty payments to be made to performers for exploitation of
the soundtrack album.
IMPORTANT TO NOTE: If a performer has an exclusive recording agreement this will
generally mean he/she has granted to the record company the exclusive right to exploit
that artist’s performance by all means and in all media for the full term of copyright.
PERFORMERS RIGHTS (CONTINUED)
ORIGINAL FILM SOUNDTRACK
The consents are obtained during the recording process. Typically it will be a condition for a composer’s
agreement or co a music supervisor’s agreement that the composer or music supervisor will deliver the
complete recording with all necessary performers’ consents obtained.
LICENSED IN EXISTING RECORDINGS
The record company or other appropriate rights owner should be responsible for clearing these rights and the
producer should expect a contractual promise to this effect in the synchronisation license.
Where performers are already under exclusive recording contract, the producer may need to consider what
position that record company take over the possibility of releasing a soundtrack album.
MORAL RIGHTS
The UK
Under UK law, an artist cannot assign his/her moral rights: they remain at all times the property
of the artist and, upon death of the artist, belong to the artists next-of-kin.
However, an artist can assert or waive their moral rights. It is better for the producer if these are
waived and the producer should ensure a waiver provision is included in any agreement with
anybody who may be in a position to claim moral rights.
Europe
In most European countries, moral rights are inalienable and irrevocable – put simply, they
cannot be transferred or waived.
SYNCHRONISATION AND MECHANICAL RIGHTS
– WHAT SHOULD YOU LOOK FOR IN A
CONTRACT?
Synchronisation rights
Ensure that the license you agree is sufficiently wide in scope, so consider:
• Where will you want to show your film;
• On what formats will you release your film – ensure your agreement is future proof;
• Ensure the license is irrevocable.
• Ensure you have a right to synchronise the music in all adverts, trailers, downloads;
• Ensure that the length of the license is long enough – 10 years is not unusual and you may wish to
include and option clause to extend the license for a further period on similar terms once the initial
period expires.
SYNCHRONISATION AND MECHANICAL RIGHTS
– WHAT SHOULD YOU LOOK FOR IN A
CONTRACT?
Synchronisation rights (..continued)
• Ensure that moral rights and performers’ rights are covered off;
• Payment – be sure you understand how payment has been calculated, and what is due – one –off license
fee, royalties, and differing fees for differing formats;
• The producer should ensure that he/she receives a warranty that the rights holder is entitled to grant the
license free from all other contractual obligations;
• Be wary of prescriptive credit clauses – requiring a credit is reasonable but an accidental failure to give the
credit as specified should not entitle the rights holder to terminate the license;
• Be wary of “favoured nation clauses” - they are commonplace though can be impractical and hard for the
rights holder to enforce.
MECHANICAL LICENSE
All of the aforementioned synchronisation considerations, plus:
• Ensure that the license granted allows the producer to copy and/or edit the music (i.e.
lengthen and shorten the music) to fit the picture.
• Ensure any payments made to collecting societies or performers should be the
responsibility of the party granting the license. Look for wording of this type.
WHO CAN HELP YOU?
• https://www.prsformusic.com/
• http://www.pact.co.uk/
• Appoint a music supervisor.
• Appoint New Media Law! www.newmedialaw.biz