| Film
is simultaneously both a visual and audio medium. The combination
of visual and aural gives the medium a power which exceeds images
or sound alone.
Rock and roll changed music in film markedly. Prior to Bill Haley's "Rock Around the Clock", virtually all film scores were written
and conducted by classically trained composers who were influenced
by the great European composers of the 17th through 19th centuries.
These composers used large orchestras with rich multi-layered orchestral
sounds. Indeed, during the height of the studio era in the 30's
and 40's, each major studio had its own orchestra.
Things are different now, driven not only by the burgeoning pop
influences, but also by technological changes, especially the use
of digital synthesizers. Filmmakers seeking to emulate the mood
of a particular period now license the use of songs and recordings
at an increasing rate (witness "Forrest Gump"). And composers who
used to have to use an eighty-piece orchestra can emulate a similar
sound at low cost using digital synthesizers in their home studios.
How important is music in film? In terms of relative weight in the
budget, music averages 2% to 5% of the budget at major studios,
and rarely exceeds 5%. Since the average budget is $50 million,
the music costs for a studio feature frequently exceed $1 million.
However, if the music is done well, it can have an incredible effect
on the film's impact on the viewer. If you doubt this, look at a
DVD and mute the music. The film becomes emasculated.
Music also can have a direct and immediate impact on your ability
to sell your film. We were involved in a film entitled "The Spitfire
Grill", a touching film with no stars and with a rather tragic ending.
After the film was completed, the producers realized the score did
not have the impact they wanted. They screened the film for James
Horner (before he won an Oscar for "My Heart Will Go On" from "Titanic"),
who agreed to re-score the film. "Spitfire" with Horner's music
was subsequently screened at the Sundance Film Festival, became
the object of a bidding war for distribution rights, and reportedly
sold for twice its cost.
At the same time our experience is that the contribution of music
to a film can be exaggerated and is the subject of much hype. When
a project is submitted to us during development and the emphasis
is the music (unless it is a music-based project, such as "Evita"),
the producers often are trying to put a music bandaid on a story
sore- and the sore is usually beyond healing. Just because Sting
wants to do the score for your film does not make it a project which
is capable of raising financing.
13.2 Licensed Music
One great feature of music is that it is usually very malleable.
It can be put in and taken out during post-production with relative
ease. It loses its malleability, however, if it is endemic to the
action or story line, or if the performance of the song is shot
live. But you must be careful. Music must be "cleared" in order
for you to use it in a film. There is no such thing as "fair use" of music in a film - you can't drop in two seconds of a song and
claim under copyright law that the use is so insignificant that
you don't need permission from the copyright owner.
The bottom line is that the music must be cleared in order for you
to distribute your movie. It makes no sense to spend millions of
dollars on developing, shooting and editing a movie, and then being
stuck with a useless asset because the music isn't cleared. You
should also realize that unless the music is cleared up front that
the copyright owners may well discover that the music is in the
film, in which case you have lost all your negotiating leverage,
and can be held up for exorbitant fees. You should also realize
that among the legal weapons in the arsenal of music owners is what's
called an "injunction", whereby a court can prohibit your distribution
of a film - and if you violate the order you can go to jail!
Let's say you want to use a Beatles song "Hey Jude" in your movie.
Whose permission do you need? First of all, you need to understand
a few basics of copyright. A recording embodies two separate copyrights
- the copyright in the song - what the copyright law calls a "musical
work" - and the copyright in the recording - what the copyright
law calls a "sound recording". If you use a recording, you need
to clear both the musical work and sound recording. In some cases,
you also need permission from the recording artist or songwriter.
Finally, if the recording was done under the jurisdiction of a music
union (which is quite common), you may be contractually obligated
to clear the use with the recording artist, and have to pay what
are called "re-use" or "new use" fees which equal the original session
fees. This can become very expensive when you re-use an orchestral
piece.
We strongly recommend that you use a music clearance company to
sort all this out. There are several we suggest: Jill Meyers Music
Consultants, 10669 Santa Monica Blvd., Los Angeles, CA 90025, 310-441-2604
(phone), 310-475-4323 (fax); Copyright Clearinghouse, 405 Riverside
Drive, Burbank, CA 91506, 818-558-3480 (phone), 818-558-3474 (fax);
Arlene Fishbach Enterprises, 1223 Wilshire Blvd., #304, Santa Monica,
CA 90403, 310-451-5916 (phone), 310-393-5313 (fax); Fricon Entertainment,
1048 S. Ogden Drive, Los Angeles, CA 90019, 323-931-7323 (phone),
323-938-2030 (fax); Evan M. Greenspan, 11846 Ventura Blvd., #140,
Studio City, CA 91604, 818-762-9656 (phone), 818762-2624 (fax);
The Winogradsky Company, 11240 Magnolia Blvd., #104, North Hollywood,
CA 91601, 818-761-6906 (phone), 818-761-5719 (fax).
When you use a pre-existing song or recording, you acquire what's
called a "license" (permission) to use the song or recording. You
don't buy the copyright in the song or recording. It is virtually
always "non-exclusive" -- that is, the owner of the song can license
them for use in other movies.
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