Found the perfect song for your movie?

Copyright law is such that you’ve got to license music before you use it in, basically, ANYthing, even if it’s nonprofit, for a great cause, etc., etc. But that licensing process isn’t in its nature prohibitive. It’s just a matter of getting permission.

If you’ve got talented singers/songwriters among your friends, the whole thing can be very simple. (And, by all means, support them!) Other artists are a bit more complicated, so here are the key things to know going in:

(1) Most important: there are two separate permissions you have to acquire, two “sides”:

• one from the song publisher, for the composition;
• the other from the record label, for the recorded performance.

Usually you have to negotiate the two separately and pay a separate fee to each.

(2) Pricing for both sets of rights is completely up for grabs. (So negotiate hard on what a good cause you represent / how artistically amazing your project is / what a good person you are.)

(3) Each side is likely to ask for “most favored nation” status, which is just an over-dramatic way of saying that you’ll pay, for example, the label no less than you pay the publisher, or vice versa.

(4) Everybody will want to know where and how you’ll display the finished film, including numbers of viewers or copies distributed, whether global or local, whether you’re charging admission, etc. (You need permission regardless, but it’s a negotiation point in your favor if you’re not making wads of money from the film…)

(5) The record label calls the permissions they give you a “master use license.” The publisher calls their permissions a “synchronization license.” There’s no magic to those terms — they’re almost arbitrary — but I guess “sync license” is a little shorter than saying “all the customary permissions I need from the publisher.”

Good luck! While some of the major labels are notoriously hard to reach, small or midsize labels can be surprisingly helpful.

I believe that, as a lawyer, I should end with a few disclaimers:

Get everything in writing. Think through the details — or hire an experienced attorney in the field to think them through. Licensing agreements can get pretty fine-grained, and you don’t want to get into trouble down the road because you inadvertently limited the film to VHS distribution in North Dakota. Make sure your agreement will survive transfer to new copyright owners, like when your songwriter friend sells out to the big record label.

And, of course, you should not treat this post as legal advice. That would take a detailed, confidential review of your specific facts and circumstances. (Sorry, though; I know you already knew that.)

Recently heard Joe Berlinger interviewed about his documentary Crude, which depicts a long-fought legal battle over oil drilling in Ecuador.  So I was interested to read the latest twist in the story: Chevron, the defendant in the Ecuadorian case, sent Berlinger a subpoena demanding that he turn over his 600 hours of raw footage.

The case is in Ecuadorian courts, but US evidence rules allow foreign litigants to subpoena relevant documents through the US courts.  See 28 U.S.C. § 1782.

So, in a May 6 opinion, the US District Court approved Chevron’s application for this subpoena.

It’s an interesting read.  The NY Times article (linked above) plays up a broader debate about journalistic privilege.  Judge Kaplan, on the other hand, focuses on a technical issue: “the standard release that [Berlinger's] subjects signed, however, expressly disclaims any expectation of confidentiality.”  (Opinion at page 22.)  Where the parties don’t expect confidentiality, he thinks, it doesn’t make any sense to talk about journalistic privilege.

I’ll leave it to others to discuss the big issues at stake in the case and in the documentary — and those are the important discussions to have.  But as I think about the mechanics of production, I do wonder whether legal documents can better serve intricate, real-world arrangements.

Many film subjects — as Berlinger’s lawyers tried to argue — give the filmmaker unique access based on trust that he’ll use the raw footage carefully.  On the other hand, filmmakers can’t expect everyone to sign off on their appearance in the edited film — that’d be a nightmare exercise in creating by committee.  So, before the cameras roll, and before the production assistants whip out release forms for signature, subjects and documentarians come to an understanding along these lines:

Any footage of me is confidential.  But I grant the filmmaker, in his sole and unlimited discretion, the right to select portions of the footage and juxtapose them with other components of the film, and to present the results to the public.

I’ve never seen that in a release.  (And I’d need to flesh this language out further before proposing it for use — which is sort of the problem.  Good legal documents are hard, and producers need to move fast.  Something to chew on…)

Meantime, what do you think about this opinion?  Shouldn’t we follow what people write in their documents?  Or is this just a cheap trick on a technicality?