documentary ambient music law
I am working on a documentary and in one of my scenes there is music on in the background. What are the licensing policies for documentaries?
To be completely clear -
The videos are going on direct market exercise videos as a "bonus feature" behind the scenes video. It is a casting call, so the music is from the trainers CD collection, but I really want to keep the dialog and "production audio" and not cover it up with stock music.
So since this is a limited market, and it is technically "documentary" how do I go about getting the rights? Do I need to? Could I put the information (song name, artist, publisher) in the corner like they do on skateboard videos?
Rights clearances is a bitch. Most "reality" and doc producers have staffed up recently just to address the issue. Market and type of production have little to do with the laws of copyright.
Any product you have created for resale will need to secure rights for ambient music. This could be as easy as contacting the legal/rights clearances department of the label to a direct permission from the artist, or as difficult as having to deal with artists agents and fee structures based on your sales projections.
About the only time you can use the "fair use" arguement is if you were shooting in a public place, i.e. a street, and the music was incidental to the action, such as a car going by or a radio/p.a. speaker projecting sound into the public area. Note that auditoriums, arenas and areas where people assemble are not "public" areas, but are classified as "semi-public", meaning that someone - a government or leaseholder controls public access.
The music used by the choreographer, if in the ASCAP-BMI licensing realm (commercial published and recorded music for distrubution and sale) would probably mean that you'll have to get clearances. Whether you'll have to pay or not dependes on the largess of the rightsholders. You may even be told that you can't use it...many bands do not allow their work to be used in any other commercial form.
As I said...Rights clearances is a bitch.
[Rick Sebeck] "Could I put the information (song name, artist, publisher) in the corner like they do on skateboard videos?"
Frank Otto already gave you a lot of great information, so I will just clarify this point: You refer to skateboard videos as if they used the music without paying, etc.
One of the largest windsurfing/kiteboarding video companies in the world (they used to do skateboarding videos also, years back) is right here in my town. I pop over to chat with Brian the owner from time to time and he told me that on his last project, the music rights cost him far more than did everything else in the entire production added together. But for his market, it has to be *the* music that his audience expects and wants or it isn't going to sell.
Adding the artist's name, song name, label, etc., is not going to protect you in the event that you have not cleared the rights to use the music. The Harry Fox Agency (who used to be the quickest and cheapest way to secure rights for music) no longer does this, so you now are pretty much on your own having to directly contact the publisher to secure rights. They usually do not want to bother with this and blow you off by hitting you with a cost that is so prohibitive that all but the deepest pockets will reel from the blow.
A safer way to go -- and far cheaper too -- if your market can be served with it, is to consider a tool like Sonicfire Pro which allows you to quickly cut music to the shot length and do it all using rights-cleared royalty-free music. Depending on your project, it may be a viable option.
The company I work at has three full time paralegals on staff who do rights clearances all day, every day of the week. We do all of our work for the movie studios and on the largest project I am producing at this moment, we have four lawyers from the studio on the project as well.
Ambient music DEFINITELY needs to be cleared under all circumstances, forget fair use if you are selling the project.
As a documentary producer, I am seeing typically 40 to 60% of the total project budget going to various rights clearances. I must say that IMHO, stills are much tougher to clear than music but we also have an in-house composer and sound engineer as well as a 100,000 track music library so we do almost all of our own music here except for scores from features. Fortunately, our clients are typically the rights holders of the music used in the films so we can typically use it, but not always.
Intellectual property rights was forecast 10 years ago by Barrons as one of the areas in business that will have almost unlimited growth. It's sad that every rights holder we contact assumes we have bottomless budgets and can spend a ton of money to clear material. We recently tried to clear :60 of an obscure early 1960s variety show, the rights owner wanted $25,000.00 per second. Needless to say, we passed on this robbery. It's a shame too, because it is becoming almost impossible to make interesting, creative and moving docs on historical or vintage subjects where a lot of archival material is needed in order to tell the story, the budgets are just ridiculous.
I would heed Frank and Ron's advice, you don't need to be sued and it is happening more and more.