Amateur Production: Licensing of Music Needed?

filmy wrote on 8/12/2004, 8:45 AM

>>>I'm looking at this mostly from a home/private user point of view, whereas you apparently are looking at it from the small professional point of view.<<<

Not sure I follow you. I am looking at it from the point of how things are laid out currently. Way back up there I said somehting to the effect of "Ask around" and that would go for anyone at any level. Some artists would never allow their music to be used on a wedding video while others would be honered. Some artists would freely allow use of their music for a feature film at any level where as another would want huge money for it. So that is why I brought up SAG rules - if the music licensing "industry" could come up with a universal set of "rules" that defined things the way SAG does things would be a bit better than they are right now I feel. (And keep in mind SAG is somehting that one "joins", so for this to work for musicians it would have to be the same thing - and I am talking about sync license, not publishing royalties.)

Currently there really is not any true, standardized, method of doing what you have said I was doing - "looking at this mostly from a home/private user point of view" vs " the small professional point of view" and that is why I mentioned the whole "non-profit" thing as example. If I wanted to use a song from the new JoJo cd on a "private home movie" that I would show to my friends and relatives I would be given a price based on what someone thought that song was worth and it might not be any differnet than what PBS or HBO would pay for it's use. To me that is the issue I was trying to explain, and how a place like FREEPLAY sort of is now doing it back asswards. (And yes I posted in another thread almost the exact same thing about exposure and it makes sense to give it away for "free" to those who offer the best exposure but personally I feel if they can afford to pay Arnold a few million a day they can cough up at least a few pennies for music.)

Take a look at how SAG Breaks things down - SAG rates and if you are an indie check out the SAG Contracts for Indy projects.

One size will never fit all, this much is true. But I think thanks to the net we are slowly seeing a backlash of sorts from musicians who want to work more directly with film makers rather than allowing others to, or to just toss away offers that an agent might be deemed to 'small'. Sort of akin to the old acting expression that there are no small acting jobs, only small actors.

TheHappyFriar wrote on 8/12/2004, 8:54 AM

I just tried doing something simular with a graduation. Let me put it this way: The graduation was June 26th, 2004. Today is August 12, 2004. I haven't gotten permission yet. Not permission from everyine. I checked the ascap & BMI sites. I contacted the pepeople they listed. I was just told on friday that I needed Artison records too. Well, i took that part of the graduation out. I couldn't wait any longer.

I recomend that if you wnt permission, you start NOW. You may get it by the time you want to give the disks out. You may not. I guess it depends on how the person you contact feels. :(

Spirit wrote on 8/12/2004, 9:15 AM

Has there *ever* been a case of a major label taking a school or similar organisation to court over playing a few songs ? I don;t think so, but I'm very happy to be educated otherwise.

Stuff the lawyers. The chance of being prosecuted at such a low level is close to zero. The more that lawyers are consulted the more entrenched this ridiculous situation becomes.

I've been asked many times for permission to use my music at small events and always say yes without hesitation. It's good exposure and good PR. But if people don;t ask and use it anyway, I couldn't care less.

If the vast bulk of musicians didn't get paid I think the world would have far better music anyway.

JaysonHolovacs wrote on 8/12/2004, 9:17 AM

Filmy,
Okay, I think I understand your point. You are saying the price of the song is intrinsic to the music, and not to the way it is used? So that, a home user might be expected to pay the same as a professional for usage because that is the song's value. The other method of pricing something is by determining its VALUE TO THE CUSTOMER. Again, I freely admit that I come from a different line of work and my reasoning based on my experience may not apply. I've had this argument with marketing in the past, "How can we charge more for something that actually costs us less to produce?" It seems backwards to the person who makes the product. But from a marketers point of view, it matters little how much a product is actually worth. All they care about is what the customer is willing to pay for it. And this seems to be the same issue here: should song licensing be based on the "value" of the song to the composer, or the "value" of the song to the consumer? Common business practice would indicate the latter; whether that is actually "right" is probably a matter of opionion.

Consider Sony for example. When they priced Vegas, did they say, "Well, Vegas cost us x to produce, and we expect to sell y copies, so the license for Vegas should be x/y?(ignoring profit for the moment)" No, they looked at FCP and Premiere and said, "Based on our feature set, and competition, and the target user, what are people willing to pay for Vegas?" And they priced it accordingly. And apparently, it was low enough that we here all bought it, so I guess they did okay.

As far as artists who would object to their art being used in a Wedding Video, I'm not suggesting that we force artists to accept these licensing models. Artists and publishers could choose, based on their own feelings and beliefs, whether to allow their music to be sold this way. This is a way for an artist and publisher to keep a continuing stream of revenue coming in on a piece of work they created. Making money of a piece of art requires you to sell it. You can always choose not to sell it and lose whatever money that particular license model may have offered you. It is your right as the artist to determine whether you are comfortable with it's use.

Sony owns Vegas and DVD-A. Sony chose to sell Vegas by itself, but DVD-A can only be bought with Vegas. This may have lost them some sales from people who just wanted DVD-A. It may have earned them money from people who bought the whole package to get DVD-A(but if anyone did that, I expect they will be pleasantly surprised with Vegas!). It was Sony's right to do this, and they will live with the consequences, positive and negative of their decision. Was it a good model? I have no idea.

I'm not trying to dispute any of your points or views. I don't disagree with your comments. I'm just trying to offer other ways of looking at it.

-Jayson

filmy wrote on 8/12/2004, 9:59 AM

Just some food for thought -

1997 Bill as introduced to the Senate.

House Resolution 789

Library of Congress info on the bill.

Bug Music article

Interesting breakdown about copyright for Bowling Green, OH schools. (For a look at the *right* way for a school to deal with this sort of thing in a "non-profit" way)

A legal Q&A about this at Mark Litwak's law site. (THis a good site for legal info about film making as well.)

Also from the same site, from an article called Legal Roadmap for Multimedia Producers, comes this quote, which is about the same as what I have been saying - There is no such thing as a standard fee to license music for multimedia productions. The more desirable the song, the greater the fee. The more rights requested, the greater the fee. Background or incidental use of song should cost less than a featured performance of the song.

filmy wrote on 8/12/2004, 10:56 AM

I agree Jayson, really I do. And in other threads on this topic I have said almost the exact same thing as you just did. On the one hand you have certian key crew who get to pick and choose - the director can say "no I don't want to direct this." and the actors can say "no I don't want to be in this" however in the case of music licenses far too many of the artists involved never get that option. There was a Disney film out a few years ago that had a promo with a song in it, the first time I heard it/saw it I got a hold of my friend and said "Wow - cool, your song is in the promo" and his response was "What?? I have to get ahold of our label because I don't know anything about that". Not that they would have said "no", but it would have been nice if they had been asked. And this sort of thing goes on all the time - just look around at this forum. ;)

The whole cost factor reminds me of a few things - for those who remember the second US Festival there was much hype about Van Halen getting paid a quater of a million to play at it. David Lee Roth said that they never asked for that amount but they had it in their contract that they would get paid the same amount as the highest paid act got paid...so he would always thank David Bowie for bouncing Van Halens rate up so high. And the other thing I am reminded of is when, I think, Terminator 2 first came out and Arnold had gotten something like 5 million a day. Therre was one interview I remember where the interviewer asked him point blank "Do you really think you are worth that?" and he smiled and said "I don't know what I am worth, my agent tosses out a price and they said 'Sure' so the studio must think I am worth that." Thusly his rate shot up.

And that is why lately I have been going to the SAG contracts as an example - one could go to them and say " I am making a student film" or "I am making a film for festival use" or "I am making an internal training film for Law enforcment agencies worlwide" and they have some sort of priceing already in place. Than it is up to the agents and actors to set their price above that, or not. With music there isn't any sort of base that is 'indutry wide' - just this wild curve. So yeah, you have people saying "Well Artist 'A' gave me their music for $500 and they are more popular that Artist 'B' so why should I pay $2,500 for a less popular artist." I know because I am one of the people who has said that. I would much rather just say somehting like "We can offer the set base price per the standard contract" It would make budgeting a bit easier as well...and also hopefully take care of issues such as those enounterd by films such as "Heavy Metal" and TV Shows like "Miami Vice".

JaysonHolovacs wrote on 8/12/2004, 11:20 AM

Filmy,
Okay, I think we're pretty much on the same page. Just one comment about your quote from that article on that legal site: This quote is from a LAYWER's site. Why am I not surprised that he sees it that way? The fact is, licensing is something agreed to by the owner(s) of the source material(including publishers, etc, anyone who has a claim on it). If someone chooses not to follow that lawyer's model and to write up a standard contract and sell it retail, that's their right. And they might be surprised how much they can make in pure volume without the overhead of lawyers for every contract. The economy of scale is nothing to scoff at. Motherboard manufacturers in Taiwan can make PC motherboards for PENNIES of profit on the each, because they just sell so many, and they stay in business.

Another example. As Vegas users, we're all Windows XP or 2000 users, like it or not. Microsoft doesn't come to my house with auditors and lawyers and review how I'm going to use XP, how many hours a day, how many features, will I post created content publicly on the Internet, etc, and then draft me a special license contract. No, I go to a store and buy a fixed price license for it. Microsft couldn't sell XP if they did that. Privacy concerns aside, the cost of the people alone to do the interview would be more than I could EVER afford to pay for the product, and I would be forced to choose an alternative. Microsoft's choice to use a standard licensing model does not seem to have hurt them financially. Anyone here want to argue that Bill Gates doesn't know anything about making money?

A few years ago the mass market for video loops, background music, etc, was too small to make such an endeavor successful. But with the constant increase in multimedia and tools to put the power of creativity into the hands of the common user, this market could become huge.

-Jayson

filmy wrote on 8/12/2004, 11:53 AM

You might want to read these -

PDF.

USC policy on the issue - The school of Cinema-Television Music policy PDF

Overview of music use - The Music Education madness site contains info and the line There have been only a few lawsuits against schools and churches for copyright infringement, but that should not be the issue.

TheHappyFriar wrote on 8/12/2004, 8:45 PM

i'm not a school though. I'm the guy who video taped, edited, & wants to sell it. If they could they'd nail me to the wall next to Jesus. :)

mrjhands wrote on 8/16/2004, 6:54 PM

I think it is ridiculous. Mixing business and a common-sense approach (usually mutually-exclusive) and speaking purely from emotion (which I rarely do, as I am calm, cool and collected 97.9% of the time), monetary compensation should only be considered when profits are generated by use of such materials. Please. It's funny, you hear of these so-called lawsuits to organizations such as the original poster... To make a video with miming to 2 or 3 classic songs, and to make copies for the 20 or so people who are taking part??? I would hope Fred would get paid for his LONG HOURS of work in assembling such a project that will outlive the participants and let their family members have for generations! Trust me, you and I know the value in the tape comes from Fred's labor and creativity from appreciative recipients, not "Rock Around The Clock" or "Love Me Tender", com'n...

Talk about GREED; how bout the record companies and/or OWNERS of publishing rights (more than often NOT the original author of the music) payola-ing (is that a word?) the songs into our conciousness thru MASSIVE air play in an attempt to reap huge profits, THAT should be the profit cycle for the material, WHEN ITS INITIALLY RELEASED, just like the marketplace does for Motion Picture releases; 1)Make movie 2)Hype movie thru massive ad campaigns and nick you $10 at the box office, make millions 3)As interest in product wanes, re-release in theatres or; 4)Release on DVD and Rental Stores, (so now you may KEEP movie and watch it 1000 times) make MILLIONS MORE, but now much more relaxed about copyright infringement KNOWING people will SHARE DVD's (let your sister borrow your purchased version, etc., or worse GASP, dupe a copy or 2 for friends...or you can SKIP that cycle and if you pay an addition $7 a month, you have HBO, so watch all you want there, tape a copy for yourself maybe...maybe 1.5 year later, same movie is $5.99 at KMart, coinciding with "First time on network TV" airing....
and so far know one (who counts) is bitching... you get my point?

I say the laws should be BASED ON PROFITS DERIVED FROM USAGE at some point. In other words, If Fred makes presentation, WANTS to make money, then register it thru some copyright thing and if Fred sells 100 for profit, Fred pays a percent based on usage in video (nothing but music throughout DESIGNED to let the music sell the video), or very minimal if the value is derived through his ingenious creativity and compilation of video.
It would have to be arbitrary, of course. This HUGE fee crap from current publishing houses for tired old 30 year old songs is awful...remember, the INITIAL promotion and subsequent OVERPLAY at time of release to reap big $$ is why the songs are no longer considered HOT TICKET items in various world markets, and thats why you can pay $2.99 for a BEST of Elvis tape at Wal-Mart is cuz GREEDY current owner of song title knows the song's present-day value....One final note; ABC publishing hears word of mouth a small video distribution company is gearing up to sell one of its' products that includes a song owned by ABC Publishing...I GUARANTEE you ABC doesnt issue an immediate Cease-and-Dessist order against the small video company; they wait and see what PROFITS are generated FIRST, THEN sue the pants off of them...Why? Cuz you threaten a lawsuit FIRST against a small company with shallow pockets...they simply wont release the video, fearing the suit...and hey, now NOBODY makes a cent.

So, in conclusion , PAY as you PROFIT, and only WHEN you profit, and set arbitration for each piece of product containing copyrighted material, to determine how much it contributes to the final video product, any pay agreed percentage, after all, if you make a video that nets $25,000, you can AFFORD now to pay a percentage for usage. Wouldn't everyone be happy?

Dont make a penny, dont pay a penny. Done.

John Anderson
aka mrjhands