Music Rights Nightmares

By Greg Pak
My two cents? Use only original music.
I’ve seen some great short films at festivals which I know I’ll never see on television — that Beatles song in the background will kill ya every time. As I’ve learned, even cutting a church hymn into your film may present a music rights nightmare and threaten your opportunity to make a sale.
In broad strokes, here’s how it works:
Scenario A: If one of your characters hums a few bars of an existing, copyrighted song, you’re legally obligated to pay the song writer (or, more commonly, the representative of the song writer or the present owner of the song) for what are called “synchronization rights” — basically the right to use the tune and lyrics.
Scenario B: If one of your characters turns on the radio and we hear the song being sung by the original artist, you have to pay both for the synchronization rights and for the rights to the performance of the song. Certain performers will cost more money — most likely, Three Dog Night’s rendition of “Joy to the World” will cost you more than Hoyt Axton’s. But the reality is that either version will cost you more than you can afford.
Here’s the real world example:

I used two church hymns in “Fighting Grandpa.” I recorded them live in my Uncle Harry’s church — thinking (like an idiot), “Oh, church music, public domain, no problem.” In the frenzy of my final month of editing, I cut in the music and did my sound mix without ever confirming whether the songs really were public domain.
Four months later, when Cinemax offered to licence the film for broadcast, I was of course thrilled. But the HBO/Cinemax contract requires (among many other things) that all of the music rights be cleared. So a long process of tracking down the owners of the songs and negotiating a price began. In the end, I paid $650 for both songs, which is on the cheap side. And since I negotiated with Cinemax for that money to be paid by them, I came out financially unscathed.
However, months later, I received an offer from an international distributor for “Fighting Grandpa.” Now I would have to get worldwide rights to the songs… A few phone calls later, I learned that I’d have to pay thousands of dollars for each song for the kinds of clearances I wanted, which was clearly impossible.
The upshot is that I’ve gotten a composer to write some original music to replace these songs and I’m remixing the music tracks. In the end, I’ll have to pay about a thousand dollars, which is less than ten thousand dollars, but which still stings. Particularly since I could have avoided the entire mess if I’d just had a composer write original music for me in the beginning.
Of course, just as there are times when the perfect actor is SAG, there will be times when the perfect music is that old Bo Diddley song… If your film absolutely depends upon it, do what must be done. Far better to have a great film everyone loves which can only play in festivals than a mediocre film which no one wants that can play anywhere.
But if you can make your film just as strong without the encumbrances of SAG actors and onerous music rights, so many more opportunities will arise.