A PRACTICAL GUIDE TO
LICENSING AND CLEARANCES
To clear or
not to clear? This is the question frequently asked by even the
most experienced producers. Often the answer is simple; if you incorporate
a copyrighted property (or excerpt thereof) into your production,
you need to clear the use with the copyright owner.
Where the clearance
process becomes confusing is when you start to analyze exactly what
rights a copyright owner is authorized to grant. It is often necessary
to construct and secure a "package of rights" for what
appears to be a single production element. This is where educated
decision making must be employed. It is best to discuss copyright
related matters before you begin your production so you can establish
a copyright game plan. Doing so will allow you to treat these situations
with consistency which is always a good rule.
HELPFUL CLEARANCE STRATEGIES
clearances are a vital pre-production step. In order to avoid
costly problems and delays it's important to integrate the clearance
process into the production process.
you use someone else's copyright in your production you need to
budget time for the clearance process and money for the licensing
- Be organized.
Decide exactly which elements need to be cleared. Prepare a comprehensive
asset list of all the film clips, music and other known copyrighted
elements you wish to include in your production. Treatments, breakdowns
and storyboards are always helpful.
- Plan alternatives.
It's possible you won't be able to clear or afford every element
on your list. It's a good idea to have back-ups just in case your
first choice is not available.
- Know your
Grant of Rights. The term, territory, media and use you are licensing
should run parallel to your known and/or potential distribution.
If possible, avoid going back to the copyright holders to ask
for additional rights.
the number of copyright holders involved in your project. Make
as many volume deals as possible.
- Be informed
and if you don't understand something, ask questions.
(PA copyright) is created by the composer (songwriter) of a musical
work and is most likely administered by a music publishing company.
There are three different types of licenses most commonly secured
for publishing rights;
- the right to make an audio-only reproduction of a musical composition.
There is a statutory rate for a mechanical use. To reduce this rate,
one must seek permission from the copyright owner.
License - the right to synchronize a musical composition to a visual
element (film, TV, home video, mullet-media, etc). There is no statutory
rate in the U.S. for this use. All approvals and licensing fees
are subject to negotiation with the music publisher. Fees are usually
determined by the popularity of the song, the grant of rights, and
the prominence of the song in the production.
Note: it is
possible for a song to be owned/represented by more than one music
publisher. You must clear one hundred percent of the song's ownership
before using it in your production.
License - the rights secured by the venues or the stations (TV,
radio, concert hall, stadium) to publicly perform or broadcast musical
compositions. These licenses are sought on a "blanket"
basis from the three performing rights societies (ASCAP, BMI &
SESAC). It is rare for the producer of a program to be involved
in these matters.
(SR copyright or mastering right) is created by the performing artist
and most likely financed and owned by a record company.
required to clear a sound recording when they have used an actual
record (CD, audio cassette, etc.) as the source material for the
music in their production. A live "visual-vocal" performance
of a song usually doesn't require any record company clearance because
no master recording was used (beware of lip-synched performances!).
A situation whereby a record company can block the new use or re-use
of a live performance that was created while an artist was under
an exclusive recording contract.
When clearing a musical composition or a sound recording, the record
company or music publisher may have a contractual obligation to
consult with the artist and/or songwriter prior to granting you
permission to use their work and negotiating a licensing fee. A
prior approval requirement is unavoidable and will inevitably delay
the overall clearance process.
newsreel, stock footage and other moving images
It is often
necessary to construct and secure a "package of rights"
for what appears to be a single production element.
One might have
to go to several different parties to effectively clear all the
various elements represented in the clip; the physical footage may
be available from one source, while the copyright in and to the
footage may be represented by another party. It is the responsibility
of the new program's producer to make sure any talent featured in
the clip, any underlying music, any union/guild new use/re-use fees
and/ or any other third party rights are secured.
The need to
clear someone's name, voice and/or likeness relates not to copyright
law but to common law rights of privacy, an area of tort law which
is closely related to trademark and unfair competition law. These
laws differ greatly from state to state. Whether or not a producer
is obligated to obtain releases from artists and/or the actors appearing
in clips is a decision that should be made in conjunction with one's
DURATION OF A COPYRIGHT
The life of
a copyright is determined by a number of factors;
If the work
was created on or after January 1, 1978, copyright protection lasts
the life of the author plus another 50 years. In the case of joint
authorship, the "life" ends when the life of the last
living author ends.
For works made
before January 1, 1978, things can get complicated. Congress has
extended the terms of some copyrights which were originally protected
under the Copyright Act of 1909 (the current Act is the Act of 1976).
Normally, works protected under the 1909 Act have a life of 28 years.
Under certain circumstances, this term is renewable for another
The phrase "public
domain" refers to the loss or expiration of the copyright holders
rights in and/or to a work. When a work is in the public domain,
it is available to the public for copying, distribution, publication,
display or other use. One should be absolutely certain that a work
is in the public domain before using the work without a license.
Also note that a new arrangement of a song that is in the public
domain can constitute a new copyright. Uses of the new arrangement
must be approved by the copyright owner.
In the U.S.
fair use is a defense to a claim of copyright infringement. In the
rest of the world, a fair use defense is not necessarily applicable.
The Copyright Act provides for this defense and instructs the courts
to balance four factors in determining whether the use by the defendant
was "fair". The four factors are (1) the purposes of the
use, including non-profit, educational purposes; (2) the nature
of the copyrighted work; (3) the amount of the copying; and (4)
the effect of the copying on the potential market for, or value
of, the original work.
use is a defense. One must be involved in some form of litigation
before this defense can be used. Also note, a fair use defense is
not necessarily applicable outside of the U.S.
DO YOU KNOW...
- About the
voluntary PBS/ Harry Fox Agreement which covers the use of musical
compositions on public television.
- That licensing
practices outside the United States, unencumbered by anti-trust
laws, are often handled differently than in the U.S. In most European
territories and in Japan, collective bargain societies exist.
Under certain circumstances these societies can grant certain
rights on a more-or-less blanket basis.
- The length
of copyright protection in European territories is longer than
in the U.S. Therefore, a copyright might be in the Public Domain
in the U.S. but is still copyright controlled outside of the States.
- If you use
a copyrighted property that was originally created pursuant to
a Guild or Union contract, you might have a new use or re-use
obligation to such Guild and/or Union. Some of the more common
organizations you may need to deal with are:
Federation Of Musicians (AFM)
Recording Industry Association of America (RIAA)
Screen Actors Guild (SAG)
Directors Guild of America (DGA)
Writers Guild of America (WGA)
HOW WE CAN
is a full-service, international copyright clearance company. Our
goal is to keep you informed and minimize any last-minute surprises
that might affect your production, making life easier on both the
nerves and the budget.
in negotiating licensing fees and knowledge of the marketplace gives
us the ability to secure favorable deals on your behalf. This will
save you time and money. Our comprehensive administration and clearance
services can also help:
an overall clearance strategy and procedure for your project
and facilitate the clearance process
- consult on
all clearance related matters as they arise
- offer sound
advice on how to collect your elements and set up a production
- assist in
the preparation of the agreements and releases
- assist in
the preparation of credit information
- prepare all
necessary guild and union reports
certain payments on your behalf
a system whereby both contract administration and accounting flow
- keep track
of your advertising and promotional rights
your new program for copyright
Diamond Time is not meant to be a substitute for your attorney.
We strongly recommend an attorney be assigned to the project and
that this person be included in the risk management and decision
making process. Nothing contained herein is intended as legal advice.