THE LAW OF SYNCH: PUBLISHING, RECORDING, SYNCHRONISATION AND MECHANICAL RIGHTS

COPYRIGHT What is it? How many types of musical copyright are there? How do these arise? What does it allow a copyright owner to do? Why does this matter to me?

WHAT IS COPYRIGHT? A property right, one of several intellectual property rights. An indication of ownership and authorship of a creative work. It is a right acknowledged and protected by law worldwide. In the UK (and EU) copyright arises automatically upon the creation of the work with no formal application or registration process (unlike, patents and trademarks). You cannot copyright an idea! An overwhelming majority of the music you deal with will be copyright protected.

HOW MANY TYPES OF MUSICAL COPYRIGHT ARE THERE? 1.PUBLISHING RIGHTS: The musical composition and the lyrics. 2.SOUND RECORDING RIGHTS: A new separate copyright in the recording that encapsulates the composition. 3.THE PERFORMER’S RIGHTS: anyone who performs on the sound recording has a new and separate copyright in that performance. 4.MORAL RIGHTS: Anyone involved in the writing and/or performing has their own moral rights. The two key moral rights are: paternity right – the right to be identified as the author of the work in certain circumstances; and integrity right – the right to object to derogatory treatment of the work.

HOW DO COPYRIGHT AND MORAL RIGHTS DIFFER? In contrast to economic rights under copyright moral rights are concerned with protecting the personality and reputation of the author. In the UK the moral right to be identified cannot be exercised unless it has been asserted (eg.by written notice) equally these rights can be waived by the author. By contrast, in other countries (such as France) these are inalienable and irrevocable rights.

WHAT ARE “MECHANICAL” RIGHTS? The mechanical right is the right to make a permanent recording of a piece of music. Anyone who records a copyright musical work needs permission from the owner of the publishing rights in the composition; this will normally be given in return of a royalty being paid to the owner of the song.

WHAT ARE “SYNCHRONISATION” RIGHTS? The right to synchronise the sound recording to a film or exhibition of that film. A film producer must obtain 2 synchronisation rights: the right to synchronise the sound recording; and the right to synchronise the underlying composition and/or lyrics encapsulated in that sound recording.

WHAT DOES OWNERSHIP ALLOW COPYRIGHT TO DO? To copy and record (also known as the “mechanical right”) the music; To issue and sell copies of the music; To rent or lend the music to the public; To perform, show or play the music in public; To communicate or broadcast the music to the public in any other way; To make an adaptation of the music; or to do any of the above in relation to such an adaptation.

WHY DOES THIS MATTER TO ME? Copying: a film producer will need to make a physical copy of the music to record it onto a soundtrack to run in synchronisation with their filmed imagery; Issue/Sell: they will be selling the film (to broadcasters, distribution companies and the general public); Renting/lending: they will be renting their film to the general public by DVD, Blinkbox, Netflix, etc… Communicating/broadcasting: they will be showing their film to the public either in cinemas; or in their homes via TV broadcast; Adaptation: they may need to edit the music to fit the images, or extend it; they may also decide to re- record existing music. To do any of the above without the permission of the owner of the copyright is breach the owner’s copyright.

WHY IS IT IMPORTANT? An infringer can be sued for damages The copyright owner may prevent the exhibition of the film Any third party the producer deals with in relation to their film – e.g. distributor, cinema chain, TV broadcaster – will need to know that the producer has all necessary consents, because they too may be in breach of the owner’s copyright if they do any of the above acts. As such without them it is highly unlikely that a third party will take on the film; or they will look to the producer (or distributor) to reimburse them for any losses they suffer as a result of a legal action against them by the copyright owner.

FIRST OWNERSHIP - PUBLISHING RIGHTS LOOKING AT FILM MUSIC COMMISSIONED, COMPOSED AND RECORDED FOR THE FILM… Publishing rights firstly belong to the author of the musical composition, and the author of the lyrics automatically upon creation of the composition.

AUDIENCE QUESTIONS If I cover a song and release it on SoundCloud, do I need a license? How do copyrights affect royalties? Can you explain the PRS license that includes graphic rights, and is there something similar in the US?

SECOND OWNERSHIP – PUBLISHING COMPANIES Typically composers will assign their copyright in their own compositions to a music publishing company: the publishing company thus acquires the exclusive right to do all the things with the composition that previously the composer could do. This means that the composer retains no rights of ownership in his songs – if he/she wishes to record of perform his own songs, he/she must obtain the consent of his/her publisher. Future music composed by the composer will automatically belong to the publishing company.

WHY WOULD A COMPOSER DO THIS? Money – in return for the assignment the composer will receive an upfront returnable fee (an advance), plus royalties from subsequent exploitation of the song; Managing a portfolio of songs – ie. exploiting it – is not a creative job; it is an administrative and commercial business. This relieves composers of the business side allowing them to focus on the creative side! A major publishing company will be better able to sell and market songs internationally than an individual composer and will be able to negotiate better deals.

THIRD OWNERSHIP – COLLECTING SOCIETIES What do collecting societies do? Issue licenses to anyone who wishes to make a particular use of a piece of music: e.g. use it in a film, broadcast it over radio or on TV, use it in an advertisement; and Collect the revenue from these uses, and pass this back to the publishing company who will in turn pass back the composer’s royalty for each such use to the composer.

EXAMPLE In the UK - the PRS (Performing Rights Society) collects license fees for the public performance and broadcast of musical works; which together with its mechanical copyright arm collects and distributes ‘mechanical’ royalties generated from the recording of music onto many different formats. Why would a publishing company do this? It is cheaper and more efficient for a publishing company to outsource these administrative tasks. However, some don’t – some publishing companies still manage these affairs on behalf of their composers and only allow the collecting society to collect and distribute royalties.

HOW DO YOU KNOW WHO TO DEAL WITH? Step 1:The film producer (or director) first finds a composer Step 2:They ask the composer if he/she has a publishing contract with a publishing company that covers the music he/she is about to write for the film. Step 3:Then they ask the publishing company if they have assigned/licensed any relevant rights to a collecting society. Step 4:If yes, they will contact that collecting society for appropriate licenses.

WHAT CONTRACTS DO YOU NEED? 1.If composer has no publishing company relationship, the film producer will want an assignment of the copyright in the underlying music and lyrics. 2.If either the composer will not assign these rights; or the composer has already assigned these rights to a publishing company, the producer will need a license to record the music (a mechanical license) and a license to synchronise the composition to the film (a synchronisation license). These can often be taken together and dealt with in one contract. 3.If the composer also performs on the sound recording of the score, the producer will need his consent to use that performance.

RECORDING RIGHTS First ownership Generally the copyright in a sound recording belongs to the party that makes the arrangement for that sound recording to take place. Ideally this is the artist or writer as recording costs will be met from their budget. It is arguable that if the producer pays the composer a sum of money as part of his/her fee to organise, arrange and produce the recording sessions, then he/she is the party who made the relevant arrangements; thus the composer owns the copyright.

Second ownership The composer or any of the principle performers may have an exclusive recording contract with a record company. This means they can only record for that company; therefore the record company may own the copyright in the sound recording. There are some advantages to this: Record company can pay recording costs. Record company can market and distribute any soundtrack album. RECORDING RIGHTS

Third ownership – collecting societies It is not as common as with publishing companies, but some record companies do use collecting societies. Also, it is very common for a smaller record company to be party of a much larger international organisation. RECORDING RIGHTS

RECORDING RIGHTS: HOW DOES A FILM PRODUCER KNOW WHO TO DEAL WITH? Step 1: They find an artist / performer. Step 2: Ask the composer if they have contracts with recording companies that will impact on this recording. Step 3: If yes, contact the recording company to discuss terms; enquire if the company has assigned/licensed any relevant right to a collecting society. Step 4: If yes, contact that collecting society for appropriate licenses.

AUDIENCE QUESTIONS What does a sync agent need in place to facilitate the license if they don’t own the master or the publishing? If you’re a writer/composer/performer/publisher on a song that you want to submit to a music supervisor for a sync in a film, where do you register the moral and publishing rights in the UK?

WHAT CONTRACTS DO YOU NEED? Assuming that the composer/performer has no exclusive recording contract, it is safer to ensure that the producer gets an assignment of the copyright in the sound recording from the composer, even if the producer pays and arranges for the recording sessions. How? In the composer’s agreement. Why? To over-rule any possible dispute over who has actually made the necessary arrangement for the recording to take place. If the producer does have to deal with a record company, he will need: A license to synchronise the sound recording to the film (a synchronisation license) which ideally will contain a clause stating that the record company will be responsible for obtaining all necessary performers’ consents.

LICENSED-IN EXISTING MUSIC 1. PUBLISHING RIGHTS Ownership - Likely to be owned by a publishing company and administered by a collecting society What contracts do you need? The film producer will need a mechanical license and a synchronisation license. These can often be taken together and dealt with in one contract.

LICENSED-IN EXISITING MUSIC (CONTINUED) 2. RECORDING RIGHTS Ownership – Record Company What contracts do you need? A synchronisation license which ideally will contain a clause stating that the record company will be responsible for obtaining all necessary performers’ consents. Cover versions – A combination of rights here: Publishing, mechanical and synchronisation rights will be owned by the composer/publishing company and probably administered by a collecting society; but As this will be a new recording of the composition, copyright in the sound recording will be a matter of agreement (i.e.. the same situation as if the producer was recording music commissioned for a film).

PERFORMERS RIGHTS Ideally, the producer should acquire ownership of copyright and performer’s consent for the exploitation of the film “by all means and in all media now known or hereafter invented for the life of the copyright (of the film) throughout the world and without further obligation” except perhaps any agreed royalty payments to be made to performers for exploitation of the soundtrack album. IMPORTANT TO NOTE: If a performer has an exclusive recording agreement this will generally mean he/she has granted to the record company the exclusive right to exploit that artist’s performance by all means and in all media for the full term of copyright.

PERFORMERS RIGHTS (CONTINUED) ORIGINAL FILM SOUNDTRACK The consents are obtained during the recording process. Typically it will be a condition for a composer’s agreement or co a music supervisor’s agreement that the composer or music supervisor will deliver the complete recording with all necessary performers’ consents obtained. LICENSED IN EXISTING RECORDINGS The record company or other appropriate rights owner should be responsible for clearing these rights and the producer should expect a contractual promise to this effect in the synchronisation license. Where performers are already under exclusive recording contract, the producer may need to consider what position that record company take over the possibility of releasing a soundtrack album.

MORAL RIGHTS The UK Under UK law, an artist cannot assign his/her moral rights: they remain at all times the property of the artist and, upon death of the artist, belong to the artists next-of-kin. However, an artist can assert or waive their moral rights. It is better for the producer if these are waived and the producer should ensure a waiver provision is included in any agreement with anybody who may be in a position to claim moral rights. Europe In most European countries, moral rights are inalienable and irrevocable – put simply, they cannot be transferred or waived.

SYNCHRONISATION AND MECHANICAL RIGHTS – WHAT SHOULD YOU LOOK FOR IN A CONTRACT? Synchronisation rights Ensure that the license you agree is sufficiently wide in scope, so consider: Where will you want to show your film; On what formats will you release your film – ensure your agreement is future proof; Ensure the license is irrevocable. Ensure you have a right to synchronise the music in all adverts, trailers, downloads; Ensure that the length of the license is long enough – 10 years is not unusual and you may wish to include and option clause to extend the license for a further period on similar terms once the initial period expires.

SYNCHRONISATION AND MECHANICAL RIGHTS – WHAT SHOULD YOU LOOK FOR IN A CONTRACT? Synchronisation rights (..continued) Ensure that moral rights and performers’ rights are covered off; Payment – be sure you understand how payment has been calculated, and what is due – one –off license fee, royalties, and differing fees for differing formats; The producer should ensure that he/she receives a warranty that the rights holder is entitled to grant the license free from all other contractual obligations; Be wary of prescriptive credit clauses – requiring a credit is reasonable but an accidental failure to give the credit as specified should not entitle the rights holder to terminate the license; Be wary of “favoured nation clauses” - they are commonplace though can be impractical and hard for the rights holder to enforce.

MECHANICAL LICENSE All of the aforementioned synchronisation considerations, plus: Ensure that the license granted allows the producer to copy and/or edit the music (i.e. lengthen and shorten the music) to fit the picture. Ensure any payments made to collecting societies or performers should be the responsibility of the party granting the license. Look for wording of this type.

WHO CAN HELP YOU? Appoint a music supervisor. Appoint New Media Law!