I know you can't give me a "definitive" answer to this, but I'm curious on the thoughts of the group, of if any of you have run into this before.

We're working on a documentary about a band. In some of the archive footage, the band is playing covers of another band's music. We use little bits of this footage throughout the film. No complete songs or anything, but enough that someone might recognise the songs being played.

I'm concerned of course about copyright violations, and I have some thoughts on where we stand (and what we need to do) but I'd like to get some feedback from those of you who may have dealt with something like this before.

Thanks!

You will need to acquire synch rights to the songs they cover. Check out DSE's excellent FAQ regarding copyright issues on the home page.

http://dvinfo.net/articles/business/copyrightfaq1.php

I'd like to add on to this question, if that's okay. I am in a similar position to Jason, where I would like to submit a film we're working on to a festival, but have questions about the music.

The song I want to use is based on a NES MegaMan 2 song. And this is more than just a cover, I mean the composer/remixer has completely revamped the song so it is, besides very very basic melody, not recognizable as the NES song.

I know of the general U.S. population's love of getting our neighbor in trouble, so I didn't want to take any chances. Does a song this modified still qualify?

You can't get 'legal advice' over this forum, only from an attorney. But based on how you described the situation, I'd say yes, you still need clearance rights to synch the music.

I read an article about "Rock School," a documentary about an after school program for kids in Philadelphia, which said that filmmaker Don Argott had to secure more than 35 licenses to take care of all the music the kids performed and that Argott had to pull a few scenes out because he was unable to secure rights.

I also read about a film "Tarnation" which was made for $238 and was a big hit at Cannes Film Festival. If I remember right, the filmmaker secured rights AFTER the festival for a scene where there's music playing on a radio in the background, and that added a tidy $400,000 to the price of the film.

I did alot of reading after posting my inital question an it does look very likely that if we want to include the audio, we'll have to aquire some rights.

(I could complain about this but I believe I would be preaching to the choir).

That being said, any suggestions on how to go about securing the rights properly? Is there a general clearinghouse for this sort of thing or some sort of "professional" that you engage to handle it for you, like an entertainment lawyer? If so, where do you start with that?

Thanks!

This is probably not the "right" way to do it, but you may start with contacting the record label and/or their legal department.

After making my post last night I received an email from Capcom telling me that I had the go ahead to use the song as long as I personally planned to make no profit and the film was not slanderous toward Capcom. Who knew, eh?

Good luck!

Check out DSE's excellent FAQ regarding copyright issues on the home page.

http://dvinfo.net/articles/business/copyrightfaq1.php

Great article, thanks for the reference Richard!

I think you have to deal with the publisher for sync rights. Find the original song on a cd (or internet database like iTunes?) and see who the publisher is. They are probably with ASCAP or BMI (and a few with the Harry Fox Agency). Then if you find an address, contact them directly. If you don't have an address, contact their PRO (Performing Rights Organization, ie ASCAP, BMI etc...).
There are no laws as to how much they can ask for clearance, and they don't even have to give it to if they don't want to.
One case in memory is Nike using some Beatles music in their ads. The Beatles didn't want this, but Michael Jackson owned the publishing, so it was approved.
If you make music, KEEP THE PUBLISHING if you can.

Anyways... it's the publisher you need to contact.

I wanted to post a follow-up on this topic because the results of our choices have been very positive and I thought maybe others would find it beneficial.

We decided to take a two-pronged approach, one of us (I, as the producer) would start looking into the proper licensing and such to see if it was within the realm of possibility to secure the proper rights to publish the film intact.

In the meantime, our editor began the process of editing the "questionable" music from the piece, removing just the audio where possible but striking entire sequences as well if necissary.

(As you might have guessed, the editor finished his job first)

We all sat down to view the edited cut and the results were amazing. Not only did removing the music not detract from the film, but it allowed us to shave a significant amount of runtime off the piece without loosing any of the story.

Just to make sure it wasn't my budget-concious mind playing tricks on me, we screened the cut for a small audience who had nothing to do with the production but had seen an earlier cut. All of them agreed that this version was an improvement over the original.

(Suffice to say, I stopped looking into licensing the music)

The lesson for me in this is that no matter how much you cut you can probably cut some more. Both the director and I were mortified at the prospect of cutting the music, and we thought for sure it would be the death of the piece. The fact that doing so not only solved our legal issue but actually improved the piece was shocking and dramatically changed the way I evaluate every shot, song, character, etc.

Anyway I learned alot from the experience and I wanted to pass it on...

The lesson for me in this is that no matter how much you cut you can probably cut some more.

a film making maxim
well done
Q

Definitely talk to a lawyer, but I think getting permission from the label/artist to use a song, though it's covered, is best. I will one day, when it goes to DVD, get Radiohead and their label's permission to use a cover of A Reminder in my film of the same name.

heath

Definitely talk to a lawyer, but I think getting permission from the label/artist to use a song, though it's covered, is best. I will one day, when it goes to DVD, get Radiohead and their label's permission to use a cover of A Reminder in my film of the same name.

heath

Why wait? What will you do if you have a duplication and distribution deal all set up and they choose to say "no?" Your dream will be toast.

Many duplication houses require you to prove you have the rights to music BEFORE they duplicate/replicate the discs.

Just so you know before hand.

The lesson for me in this is that no matter how much you cut you can probably cut some more. Both the director and I were mortified at the prospect of cutting the music, and we thought for sure it would be the death of the piece. The fact that doing so not only solved our legal issue but actually improved the piece was shocking and dramatically changed the way I evaluate every shot, song, character, etc.

Anyway I learned alot from the experience and I wanted to pass it on...
Thanks for the followup info. Every new filmmaker should take note of this when looking at music issues...

Why wait? What will you do if you have a duplication and distribution deal all set up and they choose to say "no?" Your dream will be toast.

They'll sue me, and if I had a distribution deal, they'd want permission or another song. Besides, it's a short film and it will be self-distributed.

Though this isn't the same as what was asked earlier, those of you indie filmmakers like me 6 years ago should note this...Do NOT have any songs that aren't original in mind for your film. Unless you have a big budget, you won't get them. And it'll break your heart. Trust me! I couldn't get some songs, and it stunk.

Also, don't edit with any copyrighted music, even if only temporarly--you'll be disappointed.

heath

Also, don't edit with any copyrighted music, even if only temporarly--you'll be disappointed.

heath
Walter Murch would disagree, but then again, he is using it only until the composer writes the real thing or the music director chooses the final songs. He is not replacing commercial music with homemade or production music.

Trust me on this one, and I include myself in this, but most of my students and friends and others (and, again, me) use, say, something by Weezer or someone for a long time while cutting. And we fall in love with it, and begin pursuing the rights. I'm talking about the lower-budgeted filmmakers. It happens a lot more than you realize.

I'm trying to save filmmakers a lot of grief, because the disappointment is huge. "It makes the film, I have to get it." "What's your budget?" "Umm..." "Sorry, we can't do it." (cue sobbing)

heath

In our case we had already accepted the fact that we'd have to use original music for the "score", but what snook up on us was the non-original music that was in the archive footage.

At first glance I didn't even think about it because it was a band playing a cover of a published song on a VHS tape from like 10 years ago, but I thought I'd post a question here just to gather some opinions. After reading the various suggested articles, it seemed like a no-brainer that we would be violating someone's rights by using the material as-is. The story about the rocky-theme-song-cellphone-ring really put the fear of God (or would that be Elecktra records?) into me.

We then went through the "but it makes the film", sobbing, etc. stage with the added difficulty that it was literally impossible to re-shoot the footage without these copyrighted songs intertwined, so they had to be cut.

But like I said before the result was a net gain, so evil as they may seem, maybe the restrictions placed on us by copyright law forces us to become better artists...

I mean, isn't it about time we all learned to write music and play a few instruments...?

I mean, isn't it about time we all learned to write music and play a few instruments...?

That's why there's Soundtrack, Garageband, and the PC flavors.

heath

Indie films warrant indie music IMO. Unless you DO have and WANT to utilize your budget for published music, it's the only way to go. I go to a website called collectiveunderground.com. It is a local band site for Arizona. Once in a while I'll make a post directing bands to my website and to a few forms for them to request an agreement. So far I have contracts for 8 unsigned bands, each contract includes 3 songs for unlimited use in my productions. The contract includes a clause where if I do end up making profits, the band can negotiate royalties. Otherwise the music is mine to use -indefinitely, free. So I have 24 songs currently in my pool of "worry-free" songs. Many are just as good as multi-million dollar bands.

my $.02

You might find the following document of interest:

http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf

It's on best practices for fair use in documentary film making was produced with the advise of an impressive bunch of lawyers. It makes the argument that incidental reproduction of music in certian circumstances (but not all) falls under fair use.

peter interesting read