"Dirty Dancing" is one of the many films whose soundtrack has become iconic.
The soundtrack of a film is an integral part of its interpretation. It not only helps to create a polished final product, but it can help an audience understand what the characters are feeling. Picture Dustin Hoffman and Katharine Ross running out of the church, laughing, her wedding dress trailing behind them. They jump on a bus, brushing past disapproving passengers until they reach the back seat. As their giddiness subsides, they realize what they’ve done and their smiles fade. They glance at each other and as the bus pulls away, Simon and Garfunkel sing, “Hello darkness my old friend/I’ve come to take to you again.”
“The Sounds of Silence” completes the feeling of alienation felt by Hoffman and Ross during this final scene from The Graduate. The song helps interpret the scene, not overpowering it, but harmonizing with it. Think how different Jaws would feel without the ominous “daaaa-dum, daaa-dum, daa-dum” closing in on the attack. Soundtracks like the “Jaws Theme,” the knife screech in Psycho, and the melancholy Italian horn in The Godfather have all become cultural icons. A film needs a soundtrack, whether it’s destined to win the Best Picture at the Oscars, or screened at the local theater. But unfortunately, using music isn’t as simple as importing an MP3 from iTunes and playing it over the opening credits. Most of the time, filmmakers need a license to use the songs of their choice, but how does one go about getting one?
What do I need a license for?
Basically, you need a license to use any pre-recorded music that’s not in the public domain. The public domain is an abstract set of intellectual materials that nobody owns the rights to, which means that they are public property and that anyone can use them. The Public Domain Information Project provides a list of music that’s part of the public domain. Anything composed before 1922 is public domain, but double check the website to be safe. Also, take notice that copyright law only applies to the United States, and if you’re working internationally, you will run up against different statutes. In addition, even though a song might be in the public domain, a specific recording of it probably will not be. For example, if a filmmaker wanted to use the song “Jingle Bells,” it would be under public domain, but if they wanted to use Frank Sinatra’s recording of “Jingle Bells,” they would need a license.
So, what should you do if the song that you want is not part of public domain? Don’t just go ahead and use it anyway; under US Copyright Law, the holder of the copyright will have every right to sue within a year of use. One option is to forego preexisting music and to instead hire a composer to create original music. You can then negotiate for the rights directly with the composer.
However, if your film simply won’t be complete without, say, “Bohemian Rhapsody”, or “Sergeant Pepper’s Lonely Hearts Club Band,” then you will need to get a license.
What goes into the process of getting a license?
In most cases, you will have to get two types of licenses in order to use a specific song in your film. One is called the synchronization or “synch” license. This license allows you to use the actual composition. The publisher of the song grants this license. The other license is called the master use license. It is granted through the record company and gives a filmmaker the right to use a specific recording or arrangement of a song.
You can find out who owns the synchronization rights to music through an agency or a database. For $150 an hour, the US Copyright Office will conduct a search to find out who owns a copyright. But if you’re looking to save money, the Internet is home to a multitude of databases where you can search for copyright information for free. The American Society of Composers, Authors, and Publishers (ASCAP) has a database called the ACE that allows you to search for music written by composers who are members of ASCAP. Broadcast Music, Inc. (BMI) and the Society of European Stage Authors and Composers (SESAC) offer similar services. When you search for a song in one of these databases, they will provide you with the name of the writer and publisher of the song, as well as a phone number and mailing address.
To find out who can grant you a master use license, you can usually simply check the liner notes on a CD or record.
Once you’ve found out who owns the rights to the song that you want to use, you need to submit a proposal. ASCAP has some recommendations about the sort of information that you should include in a proposal. Make sure to provide a brief synopsis of your film. Then explain the ways in which you are going to use the song. Will it be used over the opening credits or the closing credits? How many times will you use it, and for how long? Will it play in the background of a scene, or will it feature prominently?
All of these factors will help determine how much your license will cost. Indeed, the cost of a license can vary dramatically. According to Todd Brabec’s pamphlet “Music, Money, and Success,” major studios usually pay between $15,000 and $60,000 for licenses. But don’t despair; students and independent filmmakers can often cut costs by negotiating reduced fees under the stipulation that they will only show their movies in an academic setting or at festivals. It is usually possible to get a Festival Use License, which allows you to show your movie only at festivals and it is often easy for students or independent filmmakers to get their licenses for a low fee.
However, if your film is sold for theatrical release, the price of your license will go up. ASCAP recommends negotiating a step deal in advance. In a step deal, you would negotiate several different license prices that depend on where you end up showing your film. If the film is only shown at festivals, you will pay a low rate. But if it is optioned for theatrical release or shown on TV, you will pay more.
Keep in mind that if you want to make a soundtrack album to accompany your movie, you will have to negotiate special soundtrack rights.
Once you have your licenses, you are free to use the song in your movie. Bear in mind, however, that while some licenses are permanent, Festival Use Licenses are often temporary and expire after a certain period. If your movie becomes commercially successful and is going to be distributed over a wider range, you will need to renegotiate and pay a higher price to use the song permanently.
Resources for Filmmakers
The Public Domain Information Project: This website provides information about what is and isn’t public domain. Search the index to find out if the song you want to use is copyrighted.
These websites have databases that can help you find out who owns the synchronization rights to a song:
The American Society of Composers, Authors, and Publishers (ASCAP)
Broadcast Music, Inc. (BMI)
Society of European Stage Authors and Composers (SESAC)
If you want to request a government search (for a fee) visit www.copyright.gov/.