Using Copyrighted Music for Commercial Purposes

  1. Determine as much as possible the exact song title, songwriter, music publisher, and performing rights organization for each song you are interested in using. Most CD booklets or cassette j-cards include some—if not all—of this information. Get as much of this information for each song prior to calling BMI or ASCAP.

  2. Contact the appropriate performing rights organization to get the name, address and phone number of the publisher who controls the copyright to the music you are interested in using.

    Index Clearance Section - ASCAP
    1 Lincoln Plaza, New York, NY 10023
    (212) 621-6160

    Research and Information Department - BMI
    320 West 57th Street, New York, NY 10019
    (212) 586-2000; fax (212) 956-2059

  3. Contact the publisher to obtain permission. Get the name of the person you talk with. Tell them you seek to obtain a mechanical license for a song or songs they control. Follow-up with a letter, and make sure you receive written permission before proceeding.

  4. In addition to gaining the permission of the publisher, you must also receive permission from the record label on which the song was released (and occasionally the artist who recorded the song) if you are using a commercially released recording of a particular song.

  5. If you are recording songs for commercial release, you are required to obtain a mechanical license from the publisher. (If you are using a song for a film, television show or commercial advertisement, you are required to obtain a synchronization license from the publisher.) The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2002 to December 31, 2003 the statutory mechanical rate is 8.00 Cents for songs 5 minutes or less, or 1.55 Cents per minute or fraction thereof per unit sold — whichever is greater. The majority of large U.S. music publishers are members of the National Music Publishers Association. NMPA’s administrative agent, the Harry Fox Agency, is available to grant mechanical and synchronization licenses for its publisher clients. For more information, contact:

    Indexing Department
    National Music Publishers Association
    475 Park Avenue South, 29th Floor, New York, NY 10016-6901
    (646) 742-1651; fax (646) 742-1779

    Harry Fox Agency
    711 Third Avenue, Eighth Floor, New York, NY 10017
    212.370.5330; fax 212.953.2384

This information should in no way be substituted for the advice of certified legal counsel. If in doubt, consult an attorney.

How is music licensed for TV and films?

When a song is used in a television program or on film, it is not only performed, but is also reproduced in film, video, and/or CD digital copies. Because performance and reproduction of copies are among the exclusive rights that come with copyright ownership, the film or television producers must obtain the proper licensing to use a song in an audio-visual production. The licensing of songs for audio-visual formats involves two separate copyrights: (1) the copyright in the underlying musical composition, which is owned by the publisher; and 2) the copyright in the specific recording of the composition, which is owned by the record company. A synchronization license (synch license) covers the right to use the composition and a master recording license covers the use of the recording.

Movies are made to be reproduced (as opposed to performed one time only), so filmmakers must obtain both a synch license and a master recording license to use copyrighted music. Commercials and television shows that will be reproduced in syndication also require both licenses. Certain television programs, such as live sports events and awards shows, may use a song with only a performance license from ASCAP, BMI or SESAC, because these programs are one-time performances that are generally not intended for reproduction.

There is no compulsory license (as in mechanical licensing) for synchronization and master recording licensing in audio-visual reproduction. Permission to use the song and the fee are at the discretion of the copyright owners, so an artist/publisher earns whatever he can negotiate for the use of his music on-screen. In television licensing deals, the negotiation issues include the type of media covered by the license (cable TV, network TV, home video, etc), the territory of the license (the U.S., North America, the world) and the term (length) of the license. Because of the greater permanence of movies, film producers will want to buy the rights to use the song in all types of media, throughout the world and in perpetuity, so the price of licensing music for films can be very substantial.

 

Reprinted from: Texas film Commission Web Site