September 6th, 2017
Africa’s film industry is making great strides as audiences on the continent increasingly choose made-in-Africa movies over foreign ones. This point was made quite clear when in 2010 Chineze Anyaene’s film, Ijé (The Journey), became the second highest grossing film in Nigerian cinemas, behind Avatar, the highest grossing film worldwide. With the great demand for local films comes increased growth of the film industry. In 1995 the work force of the South African film industry was a mere 4 000 employees and workers. Today, there are more than 30 000 artisans and professionals working in film and drama productions. With the rise of African productions and new productions houses comes great responsibility to educate filmmakers not just on the art of filmmaking but making sure that legal matters are paid close attention too and procedures are followed correctly, especially when it comes to the use of music in a film. One of the prominent features of a Film Distribution Agreement are a complete audit of the music rights agreements.
Music in the movies is an essential tool of the filmmaking process and is one of the main factors that helps’ to determine box office success or failure. Think of a motion picture without music – whether it’s an orchestral or synthesizer score, a brand new hit song or a long time standard – and you’ll begin to realize the value and contribution of music to a film. The most successful motion pictures use hit songs to create a period flavour, establish a mood, give an actor a chance to sing, make people laugh, make people cry, or elicit emotions. In the mid-1900s it was common for composers to create all the music in a film. But these days it is more common to have the composer write the score and license popular songs to carry the theme within the film. It may be cheaper or artistically better for the filmmaker to hire a composer to write music especially for the film. In this relationship the filmmaker may acquire the copyright through the contract negotiated with the composer. The filmmaker would in turn own the sound recordings of the music that they comission.
An alternative to using a composer or licensing existing music is to use a piece of library music. Music libraries have a huge number of pre-cleared tracks that you will pay a lot less for than almost any commercial piece of music. NORM (www.norm.co.za) can guide a filmmaker in using library music and can administer the licensing process on behalf of its members. Library music is licensed according to the rates published in the production music rate card – enabling filmmakers to budget accurately.
Any piece of music has two rights attached to it: Master Rights and Publishing Rights. When you negotiate the rights to music in your film, make sure you are getting both. The Master Rights are the rights associated with using the actual audio recording of a piece of music, which can be obtained from the record company. An organization such as RISA can be of assistance in getting you in touch with the relevant record companies. Also checking the album information on the back of the CD can be very helpful. The Publishing Rights are the rights associated with the intellectual property of a composition (music and lyrics). How do you find out who owns these two rights? Look at the fine print on the CD, ask the record label, check with Performing Rights Organizations (SAMRO) or Mechanical Rights Association (NORM), or hire a music supervisor or music clearance specialist. Any and all of these enquiries should lead you to the right people who can negotiate these rights.
When applying to clear rights for your film to master and publishing rights owners you should supply them with the following information on the project:
- The name of the company or individual applying for the license;
- Main contact number and email address;
- Song title
- Film title and brief synopsis;
- Overall film budget;
- Context of music used (scene description);
- Duration of music use
- Territory of exploitation required;
- Rights required ie. Broadcast rights, film festival rights, online rights
Although not very prevalent in the South African film industry, another great option for clearing music rights is to use a company that specialises in clearing copyrights – usually referred to as music supervision. The music supervisor is a key player in selecting licensed music which includes songs and music used in on-camera situations such as music playing in a restaurant, bar, or club. A music supervisor’s role consists of negotiating publishers and master rights holders deals for the film’s music. They will prepare contracts, prepare budgets, source music and keep the filmmaker informed and updated about any changes in allocated budgets. Because of their close working relationships with rights owners’ music supervisor’s can also highlight any possible issues with song usages. Music supervisors are becoming more extensively involved in the process of hiring score composers.
A note about sampling. More and more popular music contains samples. Samples are portions (usually short clips) of pre-existing sound recordings that are integrated into a new sound recording. The filmmaker must be watchful for music which contains samples. At a minimum, the synch license should contain the licensor’s representations and warranties that the recording contains no infringing material. In addition, it is advisable to make a careful examination of the recording and investigate any suspicious material.