by Emily Blunt
reposted from http://triggerstreet.com

Arguably one of the most important elements of a film is its soundtrack. "Pish posh," you smirk? Since the dawn of the medium musicians have tinkered to match note to movement to accent the scene…

You should know this gilding ability to have your work musically expressed could cause trouble for you if you don’t know how to go about securing the proper rights for the musical additions; orchestrated or prefabbed song hits.

You don’t need to be sipping a swell martini at a swanky after party for your film’s festival debut, gleefully about to shake the hand of some behemoth record company suit - who is holding a subpoena! No siree Bob.

Many screenwriters are known for writing a part with an actor in mind (even if they’d never get them) and it’s also true many filmmakers hear nothing but these – must have to complete, the scene would die without them - seventy-six trombones crescendoing as their villain reaches for the candlestick in the third act…

But before you go planning your whole scene around those seventy-six trombone players (that want scale to toot their fancy flute), or that perfect little ditty by a seemingly long forgotten post-Vietnam band, or work an entire scene’s beat to sync in with say Smashmouth’s version of “Why Can’t We Be Friends” you better know about and understand the difference between music rights.

Sure you do. Kinda. But there are hiccups out there. I know of a feature that was held up for six months with a major studio over one song’s rights. When you start to play with the big boys, they are quick to flip to the film’s rights area; actors, crew and music. In this film’s case the picture’s producer didn’t think the “little nothing song by nobodies” was of postproduction importance – they had a deadline for a festival submission. No one would notice. Eek.

Well, because the rights within the contract were limited and riddled with paragraphs of “cans” and “cants” overlooked by the negligent producer (who may be slinging hash at Denise’s House of Waffles as we speak) the director ended up reediting and using a less expensive song… but there were many unhappy folks in many leather chaired offices frowning and sighing at the costly delay. Why have to go through that? The song in question was fine during “festival usage,” but when it came to distribution on a grand scale seems the filmmakers got one of those “other” right usage contracts; a silly costly time chewing error of judgment.

Know also, if you’ve found a composer through an organization (like ASCAP or SESAC), your film school or an ad in the trades, you will probably pay a one time “up front fee” for the writing and recording of the music for the film.

Negotiate this fee based on the money you can actually pay, naturally, and by the composer’s experience. But also know you can release some of the rights back to the composer (used when a budget is really really tight), they call this a “publisher’s share.” Your composer gets the usual film credits but also the rights to re-use his music for other films or uses (think Danny Elfman and his recurring Beetlejuice notes…). This helps beginners the most.

Know also, the film’s opening and closing credit songs or compositions are always more expensive to license or negotiate. There’s a feeling this music is the true introduction to the viewer and their mind. It sets the ambience of the film or in the case of the closing credits, leaves them with the subtle after thoughts the film intended throughout. Read the small print. You may want to forgo a scene’s background music if it means sacrificing that perfect opening sequence. Theme songs for a character, ala ‘Shaft’, also cost more since – hopefully - they will become the film’s theme too. Be prepared to finesse your budget for these musical must-haves.

Music in your film can be summed up in one line, know your rights. The most important “right” to know is your new best friend of musical rights, “The Grant of Rights” clause. This is the most protective for the filmmaker and composer. Here’s where you want to have the signature of your film’s composer, songwriter or performer - anyone who hit a note - signed in a firm black ink pen. Are you privy to the old adage, “When it’s shaked on, get it signed on”? It’s a brilliant concept for just about any aspect of life these days - let alone a shrewd business like entertainment.

You always – without exception – want the “Grant of Rights” clause included when dealing with a composer. That’s where you’ll find the dollars for donuts. And it’s where you’ll find the important phrases in the contract like, "all other rights of any nature whatsoever," "perpetual and unlimited rights," and my personal favorite, "any rights throughout the entire universe whether now or hereafter existing". That says it all huh?

Visit: ascap.com (The American Society of Composers, Authors, and Publishers) that’s the best way to find and legitimately discover your rights. Other rights have these wordy clauses that would confuse a Yale law graduate. Here’s a nutshellish summary that spells it out for you courtesy of the ASCAP’s site:

Q: What Licenses Must I Get To Use A Song In My Film?

A: If you are using a pre-recorded song or another pre-recorded piece of music in your film, there are two rights you need to clear; that is to say, you need to get two different licenses to use the music.

--Synchronization License: This is the right to synchronize a song or a piece of music with your visual image. It must be obtained from the copyright owner of the music, which is usually the publisher. You can find out who the publisher is by using ASCAP's Clearance Express (ACE) at www.ascap.com. Songs that are not represented by ASCAP might be found at the National Music Publishers' Association "Songfile" website (www.nmpa.org). You will be provided with a contact at the publisher's Business Affairs or Licensing Department.

--Master Use License: This is the right to reproduce a specific recording of a song in your film. You clear this right with the record label who owns the specific recording you would like to use; see the liner notes of the recording to find out which company this is. Alternatively, you can get contact information for record labels by calling ASCAP's Film/TV Department. You will be provided with a contact at the record label's Business Affairs Department. If you’re planning on producing a soundtrack album for your film you will need to negotiate additional soundtrack rights with the publisher and record label at the same time as your master use rights for your film. Don’t even think about waiting till you can scrounge up the funds.

Festival Rights Licensing, while frowned upon (and will not cover you here on TriggerStreet.com), because the goal is ultimately to sell your film – hassle free – for distribution is fine if you’re positively livin’-out-of-the-van el broko. You’ll pay later…one way or another. Bluntly speaking? No matter which route you take get the proper contracts for your film’s music and keep it ethical.