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Licensing Prerecorded Music

By Jon M. Garon
Gallagher, Callahan & Gartrell, PC

Since American Graffiti, the modern film musical has been reinvented as a greatest hits collection of popular or cutting-edge genre music. But if a filmmaker wishes to use recordings of popular songs, she must enter the byzantine world of music licensing. The filmmaker takes on the role of a record album producer, assembling the right mix of sounds and artists—collected from a variety of songwriters, singers, music publishers, and record labels. Each party has an interest in the copyright of the songs to be used in the film, and each must be represented in the licensing process.

Two Different Copyright Holders

The recording of a popular song is protected by two separate copyrights. First, the composition (the lyrics and the written music) is protected by a copyright held by the composers. The composers may consist of a song-writing team, such as Lennon and McCartney; a composer and a lyricist, such as Rodgers and Hammerstein; or a single person. Regardless of the number of composers, they jointly hold a single copyright. In most cases, the composers have assigned these rights to the music publisher, so the publisher is the party with which the filmmaker must negotiate to obtain rights to use the music and lyrics in the film.

Second, the sound recording of the song is protected through a copyright held by the producer of the song or the record company that manufactured and distributed the song. The performers on the recording are not protected by copyright but look to employment contracts with the record company for participation in the song’s revenue.

If the filmmaker wishes to use a particular recording, then both the composers (or the music publisher to which the composers have assigned their rights) and the producer or record company must license it. For instance, Motown Records owns the recording of “Trouble Man,” while singer and composer Marvin Gaye owns the composition rights. If the filmmaker wishes to play the Motown version of the song, then both the representatives of Marvin Gaye as composer and Motown as owner of the sound recording will need to grant permission to use the work. In addition, because of a long, strained history, there are a variety of different rights that must be identified and licensed separately. Failure to include any of these discrete rights in the contract can create substantial problems when distributing the film, or it can result in the entire film being unmarketable in some or all markets.

Every film distributor today intends for each film to be shown theatrically and via premium cable, broadcast television, standard cable television, nonnetwork broadcast television, home recording machines (DVD, Blu-ray, etc.), and online downloads and streaming performances. To exploit these markets worldwide, the distributor must acquire a number of different music rights. Most distributors expect that the acquisition of all these rights has been accomplished or arranged by the filmmaker.

Rights from the Music Publisher: Public Performance, Reproduction, and Synchronization

To properly use a piece of music, the filmmaker needs to acquire three specific rights from the composer or music publisher. Typically, all three rights are acquired in the same license agreement. Together, they give the film company the right to make its own recording of the song for use in the film. To use a prerecorded song, the film company needs these rights from the composer or music publisher plus rights to reproduce the prerecorded song from the record label.

Public Performance

In music, the public performance right protects the copyright holder for the composition from any unauthorized public performance of his work. The performance of the songs in the movie theater, on television, or streaming over the Internet constitutes public performances, so the filmmaker must acquire this right before the movie can be played in such venues. Historically, this right was reserved only for the composers in the song, not the record company in the sound recording. Recently, however, digital sound recordings were granted a limited public performance right.

For the theatrical distribution of motion pictures, the public performance right must be obtained directly from the copyright holder, typically the music publisher. For other public performances of music, the rights may also be obtained through a license with a performing rights society, such as ASCAP, BMI, or SESAC.

Reproduction of the Composition

Because the film will be licensed to sell copies on DVD or other physical media or via digital downloads, the music and score also need to be licensed to allow the film distributor to make multiple copies of the composition. The license to reproduce the song is also known as the mechanical license.

Synchronization

In addition to the statute-based rights of public performance and reproduction, copyright also recognizes a distinct right to associate a song with a particular audiovisual image. Whether a song is used in films, television, video games, or other multimedia works, the right to synchronize the pictures with the sound is a distinct legal right that must be separately protected. The synchronization or synch rights are also provided by the publisher (or the composer, if there is no publisher).

Rights from the Record Label: Master Use License

The right of reproduction protects not only the composers but also the recording companies from unauthorized creation of copies of a sound recording in any medium. Most consumers view this as the rule against taping radio broadcasts or ripping CDs, but in a commercial context, it applies to duplicating songs and sound recordings in each print of a film and, more importantly, in every copy of the DVD.

To use a particular prerecorded version of a song, the film company will need to acquire the rights to that particular performance from the record label that owns the copyright in the master recording. If the filmmaker contemplates a soundtrack album, then the reproduction right must extend to use in that format as well.

* Jon Garon is admitted in New Hampshire, California and Minnesota.

Adapted from Independent Filmmaking, The Law & Business Guide for Financing, Shooting & Distributing Independent & Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission). Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.

Shooting with Dual System Audio on a Canon EOS 5D Mark II

Daniel Plym, Director of Video Publishing at Buzzine.com , gave a crash course on how he uses his 5D for red carpet shoots. He is a one man operation and breaks down how he combines the 5D with a Zoom audio recorder, Sennheiser Wireless microphone, Pluraleyes software and Final Cut to capture clean audio.

VIA: Createasphere

10 Power Principles to Screenwriting Success

by Derek Rydall

Bring your screenwriting up to the power level with these 10 quick-reference tips from author/screenwriter/script consultant Derek Rydall.

1. DO SOMETHING PRODUCTIVE EVERY DAY

Write something every day – whether it’s your project or an assignment. If you find yourself stuck just staring at a blank screen, try staring at a great script instead — and try to figure out how it’s put together. It might inspire you to get your own writing done. The point here is to keep exercising and refining your craft, building your knowledge, and keeping the momentum – all of which will give you a competitive edge. This isn’t about becoming a workaholic. It’s about breaking through the inertia of complacency. It’s so easy to get comfortable, to settle for the status quo, to rationalize why you’re not doing what you know you need to in order to succeed. “I don’t fee like it,” is not a viable excuse anymore.

2. TAKE FREQUENT BREAKS

This may sound like a contradiction to the above habit. It’s not. In fact, without this one, you won’t be able to sustain the level of quality and productivity referred to above. Unless you’re able to take a break (whether it’s ten minute, an hour, a day, or a week) and recharge, you’ll soon be booking a room in burnout city.

3. GET ORGANIZED

A messy, disorganized office is an energy sapper if there ever was one. Not just because it takes longer to find that important document under that stack of unopened bills, but also because it literally pulls power from your psychic field. Every little ‘toleration’ you put up with burns fuel that could be put to much better use in growing your business.

4. WORK WHEN YOU WORK BEST

Some of us are morning people. Others are struck with the muse at the stroke of midnight. If you don’t already know, find out what time of day you work best, and gear your most labor-intensive activities for that time period. (Of course, if you’re on a deadline, you might have to work around the clock, but that’s a different issue.) If you schedule your activities based on your energy cycles, you will find your productivity take a quantum leap.

For example, I have two periods when I work the best – late morning and late afternoon. So I try to schedule the heavy-lifting (writing, analyzing) during those hours. When I first get up, I need to ease into the day’s work, so I do more preparatory work, like going over the day’s schedule, straightening up the office, e-mails. Once I’m warmed up, I crack open the script or writing file and get to work for a few hours. I break for lunch, meditation, make calls, work out, do some errands – and start my second writing period. Then it’s home for family time, dinner, and bedtime stories. But not my bedtime. Because at night, my energy cycle is perfect for opening mail, paying bills, filing, during simple research – tasks that don’t take a lot of energy.

The point of this example is that if I opened my mail and paid my bills in the late morning, I would waste my most productive energy cycle (not to mention become depressed) which I couldn’t make-up very easily at night during my bill paying, mail-opening time. Make sense? It may take some time to find your perfect energy-schedule, but it’s worth the experimentation. I’m still making adjustments.

5. GIVE EVERY PROJECT 100%

Treat every project like it’s the job of your dreams – and you’ll soon attract more and more of your dream jobs. Why? Because you don’t get what you want in life, you get what you are. Gandhi said we must become the change we want to see in the world. Likewise, we must become the kind of person who would get the kind of jobs we want in the world. This is another one of those universal principles I keep slipping in here. If it gives you a headache to try and make sense of it, don’t. Just give it a shot and see what happens.

6. KEEP LEARNING

To have what others don’t, you must do what others won’t. The average person – and for that matter, the average screenwriter – has a tendency to take the path of least resistance. So you must take the road less traveled. Stay open at the top. Maintain a Beginner’s Mind. Besides continued study in related and complimentary fields – read and investigate areas outside of your field – and outside of show business. Some of the most innovative ideas have come from people adapting concepts they discovered in completely unrelated fields.

7. ACT AND DRESS LIKE A PRO

This is another relative rule. A stockbroker acts and dresses quite differently than a tennis pro. In the entertainment industry, an executive acts and dresses differently than an actor. Even more specific, different clients will have different expectations. In general, business casual seems to work best.

You also want to have an updated resume and work samples (scripts, pitches, synopses, etc.) readily available. Do your homework, show up to appointments with all the right gear to get the job done, and treat each prospective client (producer, director, executive) with the utmost respect and value.

8. HONOR YOUR WORK HOURS

During work hours, especially in a home office, you’ll have plenty of opportunities for distraction from well-meaning friends and family members. In the most diplomatic tone you can muster, kindly inform them that you’re at work not at home. Your writing is a real business, not a hobby. (Isn’t it?) You’ll talk to them after hours, or on your break.

9. TAKE CARE OF YOURSELF

Feed your mind and body with high quality nourishment — and exercise. I know this is obvious to most people — yet most people still don’t do it. Writing is hard work that requires real endurance. If you want to be a high-performance person, you need to run on high-octane fuel.

10. KNOW THYSELF

The most successful people, in this or any field, know who they are so they can be true to that. They also know their strengths – so they can play to them – and their weaknesses — so they can compensate for them.

These principles might not seem like great revelations. The fact is, most fundamental principles are quite simple. The key is in practicing them. Over and over. Day after day. Until they become as natural as breathing.

While I can’t guarantee where you’ll go with your career, if you do just this much – you will go further than most in whatever you endeavor to achieve!

Good luck – and Keep Writing!

Derek Rydall has sold, optioned, or been hired to write over 20 scripts, a dozen hours of TV, and several books. Recently he wrote the new Beethoven film for Universal and the sequel to The Long Kiss Goodnight. As a direct result of his consulting, writers have made 6-figure script deals, raised millions in financing, gained representation, distribution, and even starred in and directed their feature films. He is the author of “I Could’ve Written a Better Movie Than That!” and “There’s No Business Like Soul Business.”

Source with Permission: The Writers Store

Jordan Freda talks production of his travel show: “Explore22″

Explore22 isn’t a typical travel show – but Jordan Freda, the creator, isn’t exactly your typical 22 year old. For the debut episode of Explore22, Jordan Freda set his sights on earthquake devastated Haiti in a project that not only aims to understand their culture but to help the people of Haiti.

Jordan Freda was kind enough to sit down and answer a few production questions  for FilmmakerIQ:

IQ: Tell us a little about yourself. How did you get started? What were you doing before taking on Explore 22?

JF: I got started with digital film making in 2004 doing skate videos which slowly progressed to shooting live concert videos for local bands. That later evolved into music videos for larger name acts. When working on my music videos I realized they were missing a key aspect, visual effects. VFX is what I felt was separating the men from the boys. In 2005 I set out to learn the principles of visual effects and began conducting my own tests. After gathering some skills I found work in southern California where I worked on the HBO mini-series John Adams. I received an Emmy Honor Award for my efforts, and continued working on feature films. Eventually at the tail end of 2007, with a partner and good friend, I opened a company sticking to my original plan which was creating my own film studio. We named it The Base Studio and have aimed our core focus on visual effects/post for commercials and feature film.

Explore22 is what I consider a natural offspring to one of my initial dreams in life,which was rain forest preservation. Growing up, I had this poster in my room which showed the different levels of the rain forest. I think that’s what got me started on this tangent. Obviously as people grow up, we often tend to lose touch with our dreams we may have had as children. (the thought of that constantly bothers me) I wanted to help people, help the planet, and now I had the power to do it in a different way. I decided that with my media making skills, I would set out to create an indie show focused on traveling, educating its potential viewers, and helping communities across the world. Explore22 was born.

IQ: How did you get involved with the Global Volunteer Network (GVN) and this project?

JF: When initially doing my homework pertaining to volunteering in the rain forest, I was sifting through organizations like a mad man. I found an organization that not only offered rain forest volunteer programs, but also had other progressive options in 22 countries around the world. Global Volunteer Network seemed like the perfect candidate for my mission. I found the CEO’s information and cold called (emailed) him leaving a treatment with my idea. Two weeks later he replied and said “how would you like to try this in Haiti as your first episode.” I said yes, met up with Colin in San Francisco and the show was now a-go. Colin and GVN offered me a safe facility to stay at during my travel.

IQ: What kind of crew did you work with?

JF: Picking my crew was a bit scary at first. All our studio’s employees were busy working on two feature films and a commercial, so I couldn’t remove anyone from their current workload to journey with me to Haiti. I was nervous because outside of our office I didn’t know many people that were working with HDSLRs whom were also capable of ditching their normal life to travel to Haiti without fair planning. With 5 days until my plane took off and no available crew, I turned to my Facebook page and created a post asking if anyone wanted to visit Haiti to shoot a documentary. To my surprise, almost instantly 7 friends responded with interest. I ended up taking Nick Cahill, a friend which I hadn’t seen since high school. The choice was obvious after peaking at his profile. Nick was clearly an adventure junkie. He had pictures of himself jumping off 80ft waterfalls, serious rock climbing, racing cars and an album with some of his world travels. Plus he had already been working on the Canon T2i for his personal photography projects.

IQ: What equipment did you use for the filmming of your show in Haiti?

JF: Our gear was very slim. Our office manager Lee had called our insurance company in attempts to insure some serious gear, but each insurance company declined my request and got spooked when I mentioned we were going to Haiti. We ended up brining the Canon 7D and T2i because they are light, easy to lug around and not too expensive in the event something were to happen to the gear. We brought 4 lens: L series 35mm prime, L series 24-105 (I would say we used this lens the most), L series 50mm prime and a Penang fisheye we rented from borrowlenses.com for $20. As for tripods we used a standard Manfrotto and a TASCAM DR-100 for sound. We eventually had to ditch the Tascam because we lost our backup batteries and there was no electricity in Haiti.

IQ: With no electricity – how did you manage to power the cameras for the trip?

JF: Being as power was rare (only certain shops etc had power during certain times of the day) we came prepared with 20 Batteries for the 7D camera. We found that each battery on this camera last near an entire day of moderate shooting.

IQ: Describe your typical production day in Haiti.

JF: Production day? I wouldn’t really call it a production day. It was more like “ok boys, your now living in a real situation, adapt to the situation and take pictures/shoot video when you see something of interest.” There was never a plan. I had this generic “show format” I crafted back home, which I initially intended to follow as a shooting guildeline while on the trip, however I ended up using it as toilet paper…literally. Once you get to Haiti, throw your plan out the window, It wont work. Each morning Nick and myself would wake up, eat bread for breakfast, clean up earthquake debris for hours and follow the other volunteers. We would shoot snippets of our day as it progressed and at night write down our emotions in attempts to summarize what we had experienced with the hope that I could later turn my emotions into a narrative story during the editorial process. Haiti is wake up, live and survive. Thinking about the production was strangely the last thing on our minds. Luckily for me, Nick kept the camera on and followed my daily activities.

IQ: Describe your post production process.

JF: Once back home, I began the post. I converted all our 7D footage to PRORES 422 HQ using the free utility mpegstreamclip. This transcode would provide for faster processing times natively within our NLE, Final Cut Pro. I had 10 hours of footage and spaced the entire thing on a single timeline chronologically. I told myself, “you have 5 days to edit this, each day you need to cut another two hours of footage.” I watched the entire 10 hours linearly and began removing parts I felt didn’t fit, or wouldn’t convey my point to the intended viewers. Chopping footage was extremely hard because each and every moment was important to me on what had become a personal level. Eventually, I narrowed the footage down to 5 hours, watched it again, trimmed it down to 2 hours, and so forth. Once the cut was done, I exported the audio as an OMF and our in house audio guy Mike Ponticello began re-mastering the sound inside the program Logic. We ended up using the native sound from the 7D and it presented a few problems in overall audio quality/consistency. Mike cleaned up the audio as best as he could within 48 hour deadline. I then had our storyboard artist Ryan Onorato create some storyboard style artwork which would later act as the show’s intro. Ryan handed the boards to our motion graphics lead Fernando C. Fernando did some basic animations in Adobe After Effects which gave the artwork parallax and a bit of flavor/style. Essentially, that was it. I signed off on the final edit and we posted it to the internet after a few successful test screenings.

IQ: If you had the chance to do it again is there anything production wise you would do differently?

JF: Yes and no. I would definitely have brought a guy who’s sole job was audio management. It also would have been nice to bring one of those “dolly sliders” which mount to the tripod head to catch some sexier shots, and definitely a DSLR rig that contained a follow focus with some type of counter weight. Aside from that, I feel the approach we took really gave people an honest insight to the situation. Going under prepared, although some of our footage was a bit too shaky, was actually the way to capture honest footage. Majority of the time, people weren’t even aware we were filming, that lended to some very genuine moments which if we had traveled with more gear may not have been captured as well due to people being camera shy. Most people simply thought we were shooting still photos.

IQ: So what’s next for the show? What’s the next place you want to visit?

JF: Next up, with support of our viewers and hopefully the acquisition of some sponsors we will be visiting Nepal and undergoing a 16 day hike/climb to the base camp of MT. Everest. We will be helping an orphanage at the Everest base and each person who goes on this trip, including my crew of 3 will raise $2,000 for the orphanage. That money will go a long way! So just by our crew’s presence we are raising $6,000 and continuing to help others while spreading the show and providing entertainment. I think episode 2 of Explore22 will be quite interesting as the conditions are harsh, and if you witnessed me in episode 1 you should note that i’m not exactly a world class hiker. Trust me, its going to be fun.

Check out Jordan Freda’s travel show website Explore22 and become a fan!

“Drew: The Man Behind The Poster” – Trailer

“Drew: The Man Behind The Poster” is a feature-length documentary film highlighting the career of poster artist Drew Struzan, who’s most popular works include the “Indiana Jones,” “Back to the Future” and “Star Wars” movie posters. Telling the tale through exclusive interviews with George Lucas, Harrison Ford, Michael J. Fox, Frank Darabont, Guillermo del Toro, Steven Spielberg and many other filmmakers, artists and critics, the journey spans Drew’s early career in commercial and album cover art through his recent retirement as one of the most recognizable and influential movie poster artists of all time.

For more details of the film, be sure to visit the official site HERE.

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