I’ve been in publishing for 15 years and I know it can seem very complicated. While not a copyright lawyer, here is some info that has helped me understand music rights over the years.
It is all in the name. Understanding music copyright.
In very simplistic music terms, “copyright” means that anyone that creates an original piece of music is the only one that legally has the right to make a copy of it. Hence the name copyright.
In more detail, the 1978 SA copyright act says that musical works (music as it would appear written as notes on paper) and sound recordings (where someone performs and records the musical work) are eligible for copyright. This means no one other than the copyright owner can reproduce, perform, broadcast or adapt the music without permission. In South Africa, the copyright lasts from the time the work is created in material form (e.g. written on paper or recorded) until 50 years after the composer’s death.
What this means is that if you want to use music in your ad, film, or Youtube video about cats, you need permission from whoever created the musical work (think melody) and whoever recorded that melody (think mp3 file or possibly CD if you’re still living in the 1990’s).
Who is who in the Musical Zoo
So now we know that there are two copyrights involved in every recorded song you hear. The creator of the musical work/composition is known as the composer. Most good composers are represented by a publisher whose job it is to exploit (in a good way) the musical work to earn income for the composer.
On the sound recording side there is the record label who usually pays for the recording and therefore owns it. It is sometimes called the “master” recording as it is the original recording from which copies are made. They will also have a record deal with the recording artist that performs the song. Recording artists don’t own the recordings, but are eligible for needletime royalties which will have to be the subject of another post… Some artists self-produce and release and therefore there wouldn’t be a record label as the artist would own the rights to the master recording.
So now that we know who is involved in the industry, let’s take a look at the different music options available to you and what you need to do to make sure that you aren’t breaking the law.
1. COMMERCIAL MUSIC – music made to be consumed/listened to by the public
(even if it is lo-fi smooth country jazz with 6 plays on bandcamp [all by the artist’s mom])
If your project needs commercial music, whether it is a well-known Kanye West song or something your neighbour made by banging kitchen utensils, you will need to clear the copyright for both the composition and the recording (hopefully you haven’t forgotten those terms already!). With the increase in home studios, this can sometimes be the same person, but often it is not.
The easiest place to start is with the musical work as there can often be a number of different recordings (e.g. cover versions) or you could even be making your own recording!
Most composers are represented by a publisher whose job it is to make the musical work earn money. One of the ways publishers do this is through the granting of synchronisation licences which is a fancy way of saying “giving someone permission to put music to picture”. You can learn more about sync licensing in the video below.
Obviously as it is the publisher’s job to make the composition money, that permission comes at the cost of a licence fee. We use the word “licence” because the publisher is giving permission (a licence) to use the music and is not selling ownership of the musical work in the same way that renting a house doesn’t mean that you suddenly own the house.
To find out who the publisher of a musical work is, you can contact our colleagues at CAPASSO (Composer, Author and Publisher Association) whose members are the major music publishers like Sony and Gallo along with several large independent publishers such as Sheer, David Gresham and Geoff Paynter (and the amazing Mama Dance of course) just to name a few. Alternatively, if the artist is less well-known you could try contacting them or their management directly.
How music licence fees are calculated
This is how well-known the song/song-writer is and how popular the song is. Often, older classic songs are the most expensive to license due to their longevity as opposed to newer songs whose fame might just be a fad (remember Bangarang anyone?).
Are you making an online video, or something for TV broadcast? The publisher needs to know as the licence fees differ for each media. Media is usually broken down into: TV, Online (includes social media), Radio, Cinema and Public Location (e.g. Brand Activations, events or conferences). If you are using more than one media, it is sometimes more cost effective to get an “All Media” licence that covers you for everything.
The more people that will be hearing the music, the higher the licence fee. Using music for your Hatfield store opening video will cost a lot less than using it for a worldwide Nandos campaign.
The term is the length of time you need the licence for. The shortest time large publishers usually deal with is 3 months and popular licence terms are 6 months or 12 months.
The total amount of time (in seconds or minutes) of the musical work you going to use. This can be anything from a few seconds to the entire song duration.
the information at hand, the publisher will issue you with a quote. As the usages vary so much, the licence fees
could be anywhere from a few thousand Rand to over a million.
Once you have the licence fee to use the musical work, you can repeat the process by contacting the record label with the same information. RISA (Recording Industry of South Africa) would be the best people to contact for information if it is a well-known recording artist, alternatively you can also check with Airco if it is an independent artist.
One thing you need to be aware of is that publishers and record labels often quote MFN (most favoured nations) as the musical work and recording are so closely linked. This means that the quote from the lowest party will be raised to match the quote of the highest e.g. if the publisher quoted R50 and the record label R100, the publisher’s quote will change to R100 to match the record label.
2. COMPOSED MUSIC
Another option if you can’t find the perfect song is to create it from scratch. Composing music directly to your picture has the benefit of the music creating “sync points” where the music highlights key moments in the picture. For example where the cymbals crash at the same time Humpty Dumpty hits the ground. This helps the music and picture fit together and not feel like two separate things.
As with commercial music, the composition and recording are copyrighted. These days, unless there is a big budget for hiring out orchestras, the composer will create the music in their studio using virtual instruments. To the untrained ear, it can be difficult to tell these apart from live studio recordings. As such, the composer usually owns the copyright in the musical work and recording.
Like most things in life, this is negotiable and the final ownership will depend on the type of contract the composer has with the client along with their bargaining power. Some clients will insist on a “work for hire” contract where the company owns the copyright because the composer essentially becomes an employee. Most will work on the usual licensing model as shown above with commercial music although, in general, the licence fees are less.
3. PRODUCTION MUSIC/STOCK MUSIC/LIBRARY MUSIC
At the bottom-end of the cost ladder, but top of the value ladder, is Production music. Production music is music that is created specifically for background use in a production rather than to be listened to on Apple Music or Spotify (although that is changing). This makes it especially useful to editors and music-users that use music to create a variety of moods (hence why it used to be called “Mood Music”).
As this stock music is usually licensed non-exclusively, it means that lots of different video makers can use the same piece of music at the same time and there is no waiting process to get permission from the copyright holders. The music libraries also control both the publishing rights and the master recording rights so there is only one contact point when licensing the music. Due to the larger volume of licences and non-exclusive nature, library music tends to have the lowest licence fees. You can view CAPASSO’s rate card here to get an idea of the fees.
That’s All Folks…
Hopefully this helps you understand your music options for your next project. If not, do not fear as Mama Dance is always here to assist you whatever your music needs. And best of all, our advice is always free so drop us a mail or give us a call today!