A client of mine called recently with a non-legal dilemma: getting placements for a recently purchased catalogue was proving more difficult than originally anticipated. While some publishers are finding it hard to obtain placements for their music, others are having an easier time. Like most areas of the music industry, the nature of syncs is complex and is affected by many factors, with any one factor able to kill a potential deal. In this article, I’ll explain a variety of the factors that affect obtaining and licensing for sync placements.
It Depends on the Song
All opportunities in the music business lead back to one thing: the song. In the sync world, some songs are more easily placed than others. Songs that are hits are more easily placed because everyone wants the new hit song in his or her project or ad. It brings a “cool factor” to the project, and makes consumers pay attention to ads. The desirability of the song also depends on its age and genre, as well as the artist who recorded it.
“It can be more difficult to place older songs that were not as popular at the time of their release or have lost recognition today, simply because supervisors, and the public, are not as familiar with them and well-known songs remain preferred.”
Older catalogues can often get prominent and lucrative placements when a song still retains its “cool factor,” or when the nature and feel of the song perfectly fits a scene, product, or image. Older songs are perfect for period pieces where the project requires music authentic to the time in which the project is set. However, it can be more difficult to place older songs that were not as popular at the time of their release or have lost recognition today, simply because supervisors, and the public, are not as familiar with them and well-known songs remain preferred. Obtaining a placement for these types of songs can be a great way to revive interest and popularity, but also involves someone willing to take a chance on using a less-recognizable song. Further, older songs with more specific subject matters prove even more difficult to place, as the frequency of scenes fitting the subject matter of the song decreases.
Licensing for certain genres of music also depend on the specific project, because most placements tend to lean toward songs that are recognized or palatable to the widest variety of people. The exception to this is projects or products that are already directed toward a specific niche or consumer.
Sometimes the fact that a particular artist recorded a song can make it more desirable for sync because a producer wants a project associated in consumers’ minds with a familiar voice. While a sync is usually not an endorsement by a particular artist (although it can be if a campaign is structured that way), the fact that a certain artist’s song and/or voice is associated with a particular scene or ad does create associations in the minds of the public, which can help bring attention to the scene or ad.
It Depends on the Project
Songs that work well for background music in movie scenes may not work for commercials and vice-versa. A popular new song will not fit in a 1940s period piece. And the biggest current hit will most likely not be licensed for $1,000 to anyone who submits a request.
Part of the nature of sync is that the music is chosen to fit the scene or product the music supports. The other side of that is the choice of the rights’ owners as to whether they want their music associated with those scenes or products. I have some clients who are happy to license almost any request in order to keep generating money for songs that don’t get much activity otherwise. As another example, a client of mine who owns a well-known holiday song will not approve the many requests we receive for the song to be used in murder scenes and other creepy scenarios. Our whole team works together to preserve the legacy the song has achieved, and therefore, we are picky with how, when, and where it can be used.
Of course, the other factor is always the price. As I noted above, the biggest current hit will most likely not be licensed for $1,000 to anyone who submits a request. I have clients with some of the most popular hits of the current musical era who get many requests for projects with low budgets. Even though someone is offering $1,000, there is also someone else offering $100,000, and therefore that song is only going to be licensed for the higher-priced uses, one reason being the financial benefit, but the other reason being that licensing a song that commands $100,000 for $1,000 can often dilute the value of the song in the marketplace and drive down the price for future offers.
“Licensing a song that commands $100,000 for $1,000 can often dilute the value of the song in the marketplace and drive down the price for future offers.”
Budget considerations also dictate what songs a project will choose to license and can remove or create opportunities based on price. For example, I recently licensed a use for a client of mine for an online-only ad. The budget was on the lower end, but the price reflected the very limited use requested. The project later approached us again for some additional uses, and we quoted based on the new requested use. However, the production wanted to pay even less than the original license for more robust additions. Rather than expressing their concerns to see if they could work something out with us to maintain continuity between the original ad and the additional uses, they immediately informed us they were going with another song they could license for a much lower price. In contrast, budgetary restrictions will also open opportunities for indie or lesser-known compositions that can be licensed at a lower price than the famous compositions, and it is common practice for productions to substitute songs with lower fees when the production cannot afford its first choice of music.
“Budgetary restrictions will also open opportunities for indie or lesser-known compositions that can be licensed at a lower price than the famous compositions, and it is common practice for productions to substitute songs with lower fees when the production cannot afford its first choice of music.”
Another factor largely affecting the music choice is who is supervising the project. Everyone has their own ideas of what works for a particular scene or ad, and the vision of the producer of music supervisor might not match what the rights’ owner thinks would work. For example, when I was in law school, I interned for the legal department at a prominent independent music publisher. During my breaks, I would sometimes visit with the creative department to see what they were working on. In one particular instance, one of the creative executives was compiling some options from their catalogue to sync with an ad for a popular department store. The choices he presented to the ad agency ran the gamete, from songs considered “safer” to some edgier pieces that worked surprisingly well with the ad. I later saw the ad on television and was surprised to hear the licensee had gone with a completely different song from another company, and one I did not feel worked as well with the ad. I’m sure they had their reasons for choosing this other song, but everyone at the company I interned for was scratching their heads as to why that song was chosen over the others presented.
In contrast to the aforementioned disappointing musical choice, there is a car chase scene in the movie Date Night with Steve Carrell and Tina Fey where two cars end up attached to each other by their front ends and proceed to speed through the streets of New York. The placement choice was “Cobrastyle” by The Teddybears featuring Mad Cobra. While there were probably many songs considered for that scene, this placement served as an example of an unexpected musical choice that worked really well in a specific type of scene.
Synchronization licenses cover many variables, including how long the music can be used for, in what media it can be used, how the music can be used in the project, the length of the portion being used, in what locations it can be used, restrictions on use, and once again, the price. A license will also cover how, when, and where the song can be used in marketing of the project, and whether the marketing uses can only contain the song within the same use as the project (known as in-context marketing) or whether the song can also be used for marketing in a manner different than how it was used in the project (known as out-of-context marketing).
“While some licenses can be more routine, some can be heavily negotiated and require the parties to exchange multiple drafts in order to agree on parameters that work for both parties within the nature of the specific project.”
Changes to any of these factors can affect some or all of the other factors. I regularly negotiate sync licenses for self-published creators, publishers, and master owners of third-party writers or artists, and companies and productions licensing music for their projects. While some licenses can be more routine, some can be heavily negotiated and require the parties to exchange multiple drafts in order to agree on parameters that work for both parties within the nature of the specific project. Also, because every project is different, every song is different, and every licensor is different, a use will still be negotiated even if it is two different songs for the same project or working on a new project with a licensor from a previous project.
Placements are Not Just About Popular Music
It is not only the biggest hits of today and yesteryear that find success with placements. There are many companies placing lesser known or completely unknown indie bands in commercials, TV shows, and films, because some projects want a fresher, lesser-known sound, and also require songs available at lower budgets. The music library market has also exploded, supplying music at varying pricing for a wide variety of projects on a regular basis. A niche market in the sync world commanding top dollar syncs is trailer music, whereby a 30-second or shorter piece of music is placed in a film preview. Trailer syncs are usually funded by separate budgets than the films themselves, allowing for trailer syncs to usually command higher fees than the music placed in the films.
Challenges for Licensors
Publishers and licensors face several challenges in the sync market in addition to the factors explained above.
“Many licensors quote and license only on their own share and do not communicate with other co-licensors on the terms of proposed uses.”
One such challenge is working with co-licensors. Many licensors quote and license only on their own share and do not communicate with other co-licensors on the terms of proposed uses. Further, the sophistication and ease of working with another licensor can make or break a project. For example, as mentioned in this article, if the composition owner is eager to make a particular license happen, but the master owner is unreachable or hard to deal with, a music supervisor will pass on the usage and choose a song more easily-licensed. The same goes for co-publishers or co-master owners. One way companies try to mitigate this problem is by obtaining rights to all shares and both sides (publishing and master) of a song in order to be the sole licensing contact. This is what is known as “one-stop” licensing, because the licensee only has to deal with one party who can license all rights on behalf of a song. This often makes the licensing process easier and faster than dealing with multiple licensors, which in turn makes the chances of getting the placement more probable. In addition, some supervisors or projects (like some TV projects) will only deal with licensors that have one-stop rights due to the fast-paced, tight deadlines of TV productions.
“A problem faced by all licensors is over-saturation of the market. Sync was once an up-and-coming area of the business, and one that helped to save it during the downturn caused by illegal downloading. Now, everyone is now trying to get placements, as it is still one of the more lucrative areas, especially for publishers.”
A problem faced by all licensors is over-saturation of the market. Sync was once an up-and-coming area of the business, and one that helped to save it during the downturn caused by illegal downloading. Now, everyone is now trying to get placements, as it is still one of the more lucrative areas, especially for publishers. There is a massive amount of music available, and more becoming available every day. Music supervisors are inundated with pitches by music creators and rights’ owners, and as a result, have had to narrow their focus to only trusted sources of music.
While challenges in the sync market persist, there are still licenses signed every day. It is another testament to the popularity of music in art and in life, as all the visual images we watch on a daily basis would not be complete without the music that enhances them and becomes the soundtracks of our lives.