Celluloid Heroes
Music Documentary Filmmakers Deserve a Break on Licensing Fees

Billboard Magazine, November 7, 2009.

By Steve Gordon

I believe in copyright and the right of artists and songwriters to make a decent living. But as a lawyer who represents the makers of music documentaries, I also believe that the owners of music copyrights should exercise greater flexibility when dealing with my clients.

Unlike feature films, which license music to enhance scenes, my clients often celebrate the music itself, and usually shoot their documentaries on limited budgets. Examples of recent projects I’ve worked with include “Big Pun: The Legacy,” a documentary about the first Latin rapper to go platinum; “Let Freedom Sing,” a movie celebrating the music that inspired the civil rights movement; “Punk Attitude,” a survey about the punk era; “And You Don’t Stop: 30 Years of Hip-Hop,” a multipart series about the history of hip-hop for VH1; and two documentaries about Elvis Presley for network TV, “Elvis Lives” and “Elvis by the Presleys.”

Because music documentaries can be an effective means of introducing new generations of audiences to legacy artists, labels and publishers should recognize that they’re good for business. When I worked at Sony Music, Ken Burns’ “Jazz” series on PBS spurred sales of our jazz catalog titles. For “Elvis by the Presleys,” what was then known as Sony BMG released a companion CD because the label recognized the power of the documentary to move the product.

But too often, owners of music copyrights fail to recognize the promotional value of such works, forcing producers of music documentaries to always weigh the value of using as much music as possible against the cost of doing so. Generally, labels and publishers charge less for use of their music in documentaries than in feature films because they know that documentary budgets are typically much smaller. But greater flexibility is needed.

Complicating matters is the fact that labels and publishers nearly always insist on “most favored nation” treatment, meaning that if the producers pay more money for one song, they must pay that higher amount to the owners of all the other songs in the film. Recently I was clearing the music rights for a documentary on the history of gospel music. Although most of the songs in the program were so old that they were in the public domain and didn’t require payment, about a dozen other songs were still protected by copyright. One of them was more widely known than the others, but fortunately the song’s owner agreed to license it at a reasonable rate. This was essential to the project because if the owner had asked for more, we would’ve had to pay the same amount for all the other non-public-domain songs, which would’ve exceeded our budget.

Under U.S. copyright law, producers of documentaries for PBS or other public broadcasting stations aren’t obligated to pay for publishing rights or the use of master recordings for music they use in their works. Instead, PBS, with funding from the Corp. for Public Broadcasting, pays copyright owners the relevant licensing costs.

But this provision of U.S. law doesn’t exempt PBS documentary producers from having to pay for the cost of licensing compositions and master recordings when their documentaries are released on DVD or in foreign territories. This is important because PBS stations often like to give away DVDs of music documentaries during pledge drives in return for contributions and filmmakers usually want options to distribute their work on foreign TV or other media to recoup production costs.

As a clearance professional, I always try to get the most reasonable rates and the most expansive rights for my clients’ documentaries, even as I remain conscious and respectful of the value of the music as well. Publishers and labels, however, should recognize that these celebrations and histories of their music are great promotional tools and should enable documentary filmmakers to make the best work possible.

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