Synchronisation Agreements - Part Two

 
 
2nd November 2009 - By David McLaughlin
Introduction
In our last music law newsletter we began a discussion of the key issues to be aware of in Music Synchronisation Agreements with a particular focus on those Synchronisation Agreements that are used in relation to the use of music in film or TV. In this issue of our music law newsletter we’ll continue that discussion including by spending a bit of time talking about Synchronisation Agreements that relate to the music used in television adverts. Distribution
In the last issue of our music law newsletter one of the final issues we discussed was clarifying the extent to which the TV show or film in which your music is to feature will be distributed not only in terms of the countries but also the formats (e.g. free-to-air television release on DVD etc.) as all of these factors can affect both the price that should be payable for the use of your song as well as whether you would be keen for your song to be used at all. A related issue to this is the way in which music which you licence for inclusion in a film or TV programme may be used outside of the specific film or TV programme. Promotion
Most film or TV producers will seek to have Synchronisation Agreements include a provision that allows for the use of any song contained in the film or TV programme in any advertising related to the film or TV programme. Although these clauses are fairly standard you should make sure you have a clear understanding of how they provide for your song to be used. For example if your song was only used as a very minor incidental piece of music in the film or TV programme and you were paid accordingly then it is not necessarily fair that your song should be used prominently in the advertising campaign in such a way that it appears to be the title track to the movie and indeed helps to generate interest in film or TV programme on that basis. Merchandise
Another related use of music included in a film or TV programme may be as part of merchandise related to the film or TV programme. An example of this could be in toys or novelty items that reproduce short portions of your song or an adaptation of it. Another example may be where certain lyrics from your song are reproduced on clothing merchandise such as T-shirts or baseball caps. If there is an intention expressed by the producer to maybe make use of your song in such a way and such use is not clarified in a separate agreement then you should make sure that the Synchronisation Agreement clarifies as precisely as possible the way in which your song can generally be used and also ideally that you are given some kind of right of approval over the manner in which the final use occurs. Soundtracks
Another spin off of the inclusion of your song in a film or television programme may be that there is a desire to include your song on the official soundtrack of the film or TV programme. If this is the case then you should of course receive further payment for such use and the detail of this should either be incorporated in the Synchronisation Agreement or may indeed be the subject of a separate agreement which deals solely with the soundtrack. Royalties
The more specific issues that need to be dealt with here include the way in which royalties you are to receive from the income generated by sales of the soundtrack are to be calculated. The issues here are of course potentially as complicated as any situation where you have another party such as a record label releasing your recording so there is a lot to be considered. If however the recorded version of your song being used in the soundtrack is one which is already controlled by a record label then most of the negotiation over these issues in respect of the soundtrack will probably be handled directly between the record label and the producer of the film or TV programme. Adverts
Whenever a Synchronisation Agreement relates to the use of your song in an advert then there are additional issues that need to be considered that you would not commonly have to address where your song is just being used in a film or TV programme. For example it should be very clearly specified if the use of your song in the advert will simply occur by the use of samples of an existing recording or if the company making the advert want to re-record the song themselves. If this is the case you may want to get some indication before you agree to such use of your song of the nature of the re-recording. For example will such a re-record of your song portray it in another style such as a reggae version or a country version as this may not be something you would be happy with. Word Changes
Another important issue to be considered whenever someone wants to use your song in an advert is whether they may also want to change any of the words of your song to be better represent or highlight the product the advert is selling. The nature of any such proposed word change could once again be a key issue that may in fact dissuade you from having your song licensed for such use. Blanket Industry Agreements
As a final point on Synchronisation Agreements you should also be aware that although generally speaking your permission will be required before your song is used in a TV programme there are some exceptions to this. If your songs are administered direct by AMCOS or by AMCOS via your publisher then there are certain blanket industry agreements in place that allow companies like TVNZ to make use of AMCOS administered songs in certain ways within the programmes produced in house by such companies. This is effectively what happened recently when Don McGlashan’s song ‘Anchor Me’ was used much to his dismay by TVNZ as background music as part of TVNZ’s election coverage to highlight the National Party win at the recent election. Standard Royalties
?There is an established royalty system in place which will ensure that you are paid for any such use that occurs and there are also important limitations on the use that can be made of your songs in such instances. We will in fact be discussing these blanket licenses more specifically in a future Lawful Truth column. Uses of songs in this way are of course also subject to the user obtaining any other permission that may be required such as by having in place an appropriate licence from the licensing body PPNZ if the recording of the song is one which they have already been given the broadcast rights in to administer. Questions
If you have any queries or questions in respect of the above please don’t hesitate to contact me at david@mclaughlinlaw.co.nz or on 021 630 201 or 09 363 2738.
www.mclaughlinlaw.co.nz
www.myspace.com/nzmusiclawyer
www.christchurchmusic.org.nz/professional-service Related Links
Synchronisation Agreements Pt. 1