Obtaining permission from bands...

I have a question regarding using copyrighted music in a surf video. I know a lot of guys that make extreme sports vids dont get permission from the bands. I think a lot has to do with their not being a lot of money in the small industrys to be able to pay royalties to big name bands. Anyway, I am emailing all the small record labels I know of in hopes they will want to support our video and not have us pay royalties, since our video basically is sold in surf shops only. Any ideas on what types of forms or permissions I would need to get? I want to be as legit as possible and not risk anything somewhere down the line. Thanks

I'd suspect you'd have to pay them SOMETHING..as you are using their music to help make you money.

You need to contact the record labels and have them get you the proper forms. If you find an unsigned band...even better. Then you deal with them directly and they get more of the money.

But ethically you gotta pay them something.

What would you think is a good price for something like that? A percentage of total sales or a flat rate of some sort?
The videos are sold wholesale for about $15, $30 retail in surf shops, and we will probably do a first run of 2000, since bodyboarding sucks and has no recognition whatsoever.

When I license music for a corporate piece, it is usually a flat fee. If the show is broadcast, then there are fees for how many airings and such, but you fall into the first catagory.

I have licensed music for as little as $450. And worked on shows that licensed ONE SONG for $35,000. I'd offer them the lower amount. Go for $400 and see what they do.

Or am I not supposed to spout out numbers here?

if its small labels or independent artists, sell it to them such that they will be getting free publicity and a listing on the credits and on the packaging and you'll often get use for FREE.

approach them from that point first and if they then want money - then begin the negotiations. for a small or indy band i wouldnt pay anymore than say $750 or so...

On tiny projects, my general rule of thumb for indie licensing is:

$250 per side ($500) for background music
$500 per side ($1,000) for "featured" use (main title, for example)

Deal: perpituity, all media. This way, no royalties or back end, it's a done deal. They keep all their ownership rights, you're just licensing for use.

If you have smaller budget, you can always throw in a mention on the cover art. Little bands love publicity, even if it's on the back of a video box that says "featuring music by..."

If the program ever goes to TV they'll get royalty payments if their publishing is through BMI/ASCAP/etc. A reasonable selling point.

All in all, this method is inexpensive (relatively) but not insulting, and it's usually an agreeable price point (has been for me, anyway).

By "per side," I mean 1 side for publishing, 1 side for master use

That's just what I do, others may say otherwise...

anyway, good luck!

karl

On low-budget projects the starting negotiation price tends to be $0. Of course, you can't approach Green Day with that offer and expect any results. It tends to be better to converse with the musician/band before you make the offer. I've had several successful cases of asking musician friends for a limited music license for no money upfront. Make sure you are forthright and honest. What's worse than a $0 offer is a $400 offer that turns out to be $0 because you dodge their phone calls and never bother to send a cheque when you're supposed to. If you're not willing to pay, then say it to them in no uncertain terms. They can always say no. And from an etiquette perspective, an offer of $0 can be interpreted as you not valuing their music. So it all depends on the individual case.

Something important to remember: A band doesn't always own its own music, not to the extent that many bands think they do. There are two parts to music copyright -- sync rights and master rights. Sync rights refer to the songwriting and publishing and master rights refer to the actual recording.

In order for a band to be able to license you its songs, it must own both parts without qualification. A band that co-wrote the song with its record producer, for example, does *not* have the right to give you a sync-right license unless it had the producer sign away the songwriting -- which no sane modern songwriter would do. (Ask Lennon-McCartney -- and look into how the Beatles catalogue ended up in the hands of Michael Jackson in the '80s.) As for master rights, that includes every single person that can prove s/he worked on the recording, unless s/he had signed some kind of work-for-hire agreement ceding all control to the band/artist. If a label paid for or helped pay for a band's recording, then once again, the band has no right to just tell you "Go ahead and use the recording". You need to get the OK from the label.

Bands *do* want their music publicized. The tricky part is to look into the background of their music and make sure all parties have been addressed. Again, musicians sometimes think they own more of their music than they actually do. Copyright law dictates that how much a person contributed to a piece of work is not a criteria for ruling that said person has no right to dictate usage and licensing. If you wrote 90 per cent of a song and I wrote 10 per cent, copyright law does not say that you can license the song without my permission just because you "did more work than I did" -- unless I'd signed a work-for-hire agreement with you, or any other written contract ceding my copyright ownership to you.

One common technique, of course, is to hire a musician (with the all-important crew deal memo/work-for-hire agreement, of course) to do "inspired" original compositions that heavily resemble a pre-existing piece of music. Since copyright law protects only specific "expressions" of an idea and not the idea itself -- ie. the original recording, not the "vibe" of the recording -- such practices are much harder to pin as infringement.

> I know a lot of guys that make extreme sports vids dont get permission from
> the bands.

They are in copyright infringement, and it's illegal. And since they *are* selling their products for money, they have zero justification in the eyes of the law. Their product can be taken off the market, their company can get sued, and they can be targeted for punitive damages. It's a dangerous (and, in agreement with Shane, unethical) practice.

Actors and other film people do use copyrighted music in their talent reels. In theory, they are also in infringement. But since their reels are distributed strictly as showreels for themselves and they're not being used for profit, prosecutions and injunctions tend to be unlikely. It's like somebody using a Coldplay song for his/her page on MySpace. Technically it's not allowed, but the industry tends to turn a blind ear.

Great informative post Karl. Nice job.

Yo all might want to read this

[www.utsystem.edu]

Approach Indie Labels and ask them if they have any bands they'd like to promote. Often, you can get them to agree to do it for free, as long as they have the name, "MTV style" in the lower left corner of the screen as their song plays. Hey, just like in extreme sports videos. The guys that make them, say on the Fuel Network, don't pay much or anything at all in exchange for publicity the video will give. I doubt that they use them without permission, though.

Kevin Monahan