Artist manager and NYU faculty Marat Berenstein talks us through the key factors involved in music licensing and clearance.
Marat Berenstein is an artist manager who works in all areas of the music business. He also teaches licensing and music supervision at the Clive Davis Institute of Recorded Music at NYU’s Tisch School of the Arts. Check out his outline of the basics of licensing and clearance below:
Can we get the song?
One of the first things I say to my students on the first day of licensing class is the most important question you can ask in the world of music supervision and licensing which is, “Can we get the song?” Licensing is the only area in the entire music business where fees are determined on a market value system. Now what that means is entirely subjective. The cost of any one song is determined by all of its copyright holders. There is a master recording, which is controlled typically by the label or in some cases the artist, and then there are the publishing rights which are controlled by the music publishers and in some cases the songwriters themselves, and in many cases more often than not, it’s more than one publisher. All of those parties have to agree to allow a music supervisor or a music licensing person to use their song.
So sync licensing is based on music paired with a visual. It could be video games, it could be commercials, it could be film, it could be television. In order for the person who works on a project, the music supervisor, to be able to license a song, they have to be able to reach every right holder. They have to be able to set up a group of terms. For example how long the song will be used, in what kind of medium it will be used, will it be in theaters, will it be in festivals, will it be online only? The territory – will it be in just America? Just the UK? Will it be worldwide? And the exact usage, meaning how much of the song are we using? Are we using just the hook? Are we using the entire song? Or are we using five seconds of the song? There’s a very common myth that you can use a certain amount of seconds of a song without having to clear it, some people say it’s three. It’s entirely untrue, you can’t use a nano second of someone else’s copyright without having to clear it.
What determines the value of a license?
All of those terms (the amount of song that’s being used, the territory, the medium, etc.) determine the value of the song in its licensing usage. So for example a longer use of the song will be a little more expensive. If it’s a theme song it’s going to get more expensive, or if it’s an end song. You also want to think about things like how many songs are being used in a project. Those are all things that determine the price as well. For example a TV show can use about 20 songs, in the business we call these cues. A typical television show might use 20 songs, video games can have 100 songs and movies can have maybe 40 songs. Commercials and trailers use one song so those are the hardest placements to get, and also the ones that pay the most.
The value of a license ranges from one dollar to anything. With MTV, for example, sometimes they don’t pay for music and they can’t legally ask you to give them their music for free, so in the licensing agreement they put one dollar. The reason you would do that is because MTV provides a lot of exposure, they do a lot of social media promotion if your song is one of the 20 or 30 songs on their shows, so chances are you’ll see some kind of activity on it. It can help – I’ve seen it help and it can be good if it’s the right show. So fees can range from a dollar on a TV show to all the way up to the seven figures. If you ever hear a classic timeless song in a movie, for example by The Beatles, you can pretty much assume that that was done for at least a million dollars. Those classic acts get to set the prices really, really high and rightfully so. In that case the song may do more for the movie than the movie does for the song.
If one of the rights holders doesn’t agree to the terms or wants a higher price, it either ruins it for everyone else or helps everyone else. If there are three writers on a song that means there are three publishers that control the rights of that song, and all it takes is for one of them to say we don’t want to do this. So the answer to our question in the beginning, “Can we get that song?” No. One of the parties involved said no, or they said we want more money, which means everyone else gets more money because it’s entirely proportional.
Getting the most value for your music
You don’t want to say yes to everything. I can see how that can make a lot of money and generate a lot of exposure, but there’s also a point in time where that might not work so well. If you look back just a few months, at one point ‘Uptown Funk’ by Mark Ronson and Bruno Mars was heard in every single thing possible. I know for a fact that their label and their publisher at some point said you know what, we’ve reached the saturation point, we have to start saying no, we don’t need the money or the exposure. At that point the song starts becoming even more valuable because now music supervisors know you can’t get that song, it’s not available. And the same thing scales over in emerging music. You have to be careful about the kinds of licensing opportunities you go for. I always urge young artists to think about their brands. It’s not just about money or exposure.
Never put your music in something that you would never affiliate yourself with. If it’s a brand that you would never, ever support or wear as an artist then don’t do it, it doesn’t make sense. Only do the things that you like, the things that you support. If you really need the money and the opportunity comes, yes of course you can do it, just don’t tweet about it. But always try to remain true to your roots as an artist. There are many opportunities out there in the world, especially now with Hulu, Netflix, Amazon TV, there’s all sorts of new media and all of those mediums have to license music. There are things that everyone wants to be part of, like a new action adventure movie, and those are things that have to be a little bit more organic and natural. If your song is good and it’s out there, you know, music supervisors are curious, they are tastemakers, they like to discover music.
How difficult is the licensing process?
With the rights holders, it could be easy in the case of a singer-songwriter that’s not tied to a label or a publisher that you can directly reach on Facebook or Twitter, or by email, and they control the master rights and the publishing and are happy for you to license their song. It could be as easy as that and then it could be as difficult as a song having three or four samples, and each one of those has multiple publishers. That’s a nightmare to a music supervisor. The genres of music that are the most nightmare-esque are usually Hip Hop and EDM because those genres are very sample driven. So it could be super difficult getting a song that has 20 publishers on it and three labels as a result of the samples.
Work for hire
In the world of music licensing a work for hire is something that’s usually designed for producers and composers and people who make things from scratch, given a certain brief or a creative direction. You get paid to come in and do a job, and you do don’t retain the rights. The production company or TV/film studio or whoever is paying you will then keep the master rights and the publishing rights. So certain film studios and especially the iconic ones, the ones that own and represent iconic TV shows and films, actually serve as a label and publisher because they own both set of rights to those scores and they often have people on staff that pitch them out to television commercials and other opportunities.
Pitching your music
Music supervisors don’t like to be pitched unless it’s by a very small circle of trusted friends, and the question is, “How do I get into that circle?” You can get into that circle in two ways; you can sign to a great publisher or label whose licensing or pitching person is part of that inner circle. The other way, and I think this is the most organic and valuable way to get the attention of a music supervisor, is to follow the same formula of getting the attention of a fan. Think of music supervisors as music fans first. If you get music supervisors to come to your show because your live show is awesome, or because you are being talked about by the right blogs or social influencers, then you’re on their radar.
It’s also important to make their lives easier. When you send them something, make sure it’s properly tagged with your contact details and the track/album details. If a music supervisor gets an mp3 they love and it’s called ‘artist one, track one, album one’ and there’s no other information on it, they’re never going to find you and that’s a missed opportunity. Don’t send them attachments – give them a streaming link and an mp3 download link, also give them an instrumental – that’s super important. Instrumentals are there for the sound editors, it doesn’t mean that the instrumental is getting used over your song it is just for editing technique. Also keep in mind the content of the lyrics. If it’s a TV show you can’t have curse words in it, it has to be a clean edit.
Always do your homework. I work with Matt FX, a music supervisor here in New York, and he works on a show called Broad City. He showed me an email the other day where someone pitched him music for a show called Two Broke Girls, which he doesn’t work on. That information is readily available, you can go online and see which shows music supervisors are working on, what’s in post-production, what’s been cancelled. Also don’t follow up ever. If you pitch something to a music supervisor and they’ve opened your email and downloaded your song, what they typically do is if they like it they’re going to put it in a folder and when the right time comes they’ll go to that folder. If your song happens to be the song that they pick from that folder they will follow up with you. Remember there’s a cool element to it, if you are over selling or over pitching you’ll start to lose cool points.
Fees and performance royalties
The fee, sometimes referred to as an upfront payment fee or sync fee, is the money that you receive upfront for the license for the sync rights. In some cases there’s also money that you can earn in America specifically on the publishers’ and writers side, and, depending on the territory, on the master side as well. These are considered backend royalties, for example in America when your song is synced to a television show, every time the episode with your song in it plays that is considered a performance as far as your PRO is concerned. So in America the one area where you will actually see backend royalties on a sync license is television. In other territories it’s actually quite different. For example in the UK, you can also seek performance royalties when your song is in movies and those movies are played in the theaters. So whenever your music gets out there, whether it’s for free or on SoundCloud or elsewhere on the internet, it’s very important for you to register with a PRO. Wherever you are, make sure your music is registered, you never know when it’s going to get picked up for something.
We’d like to say a huge thanks to Marat for taking the time to speak with us. Don’t forget you can listen to our full interview with Marat on our SynchStories podcast.