Industry Report: Copyright and legal issue of the audiovisual sector
An Introduction to Music Rights for Film and Television Production
by Observatoire Européen de l'Audiovisuel
07/05/2009 - It was Saint Saëns who wrote what is considered to be the first ever film score – music for the film L’Assassinat du duc de Guise – in 1908. A hundred years later, music continues to embellish and enhance cinematographic works, accompanying the storyline, heightening the mood and, in some cases, playing its own role in the film. In legal terms, the questions related to the rights and remuneration for today’s film score composers are extremely complex.
The European Audiovisual Observatory has chosen to mark the 100th anniversary of film music by publishing a new IRIS Plus report.
Author Francisco Cabrera, Legal analyst at the Strasbourg-based Observatory, opens the report with a useful examination of the legal position of the film composer.
He describes the situation of composers working under a US “work for hire” contract who are therefore not considered to be the author of their work for copyright purposes.
In Europe, on the other hand, the composer is considered to be the author of the music, although country by country specifics also apply (in Germany and the UK, film music is considered to be a pre-existing work of which the composer is the author, whereas in France the composer is author of his music and also has the status of joint author of the entire audiovisual work). Cabrera also examines the duration of copyright protection accorded to film music and its composers and concludes the chapter by examining the moral rights of film composers concerning their music. As far as its use in films is concerned, the author points out that “composers do not have a say as to the final version of the film (final cut), and they do not even have a right to have their music included in the film if the producer thinks otherwise”.
The report then moves on to look licensing and remuneration.
Cabrera first of all explains the functioning of the so-called “Synch” licence required to use a musical composition and the Master Use licence to obtain permission to use the recording of a piece of music – these being the two standard legal tools in the industry to licence the use of music in a film. Regarding remuneration, the author points out that “in most cases composers […] reply on performing royalties for making a living”.
The management of these rights is often carried out by collecting societies. As for music for television programmes, broadcasters usually obtain blanket licences from collecting societies in order to be able to use their entire repertoire. This chapter also provides more detailed information on licensing and remuneration for the US, Germany, France and the UK and concludes with an analysis of the mechanisms of licensing works for distribution on UGC platforms.
No publication on this subject would be complete without a chapter on piracy issues.
The number of music videos and films using music uploaded onto the Internet without authorisation has exploded in recent years. The author places the film music composer in this context, pointing out that, unlike musicians who also make a living from live performances of their work, film music composers mostly rely on royalties from film exploitation to make a living as their music is not primarily conceived for live performance. He states that “they are particularly affected by piracy since works shared illegally on the Internet do not result in any royalty being paid to them”.
Cabrera rounds off this very practical report by pointing out the inherent contradiction in the exploitation of today’s film music: on the one hand, thanks to technological advances, there has been a multiplication of the methods of exploitation (cinema, TV, mobile phones, DVD, VoD) and therefore of the sources of remuneration. On the other, it is this very technology which is making piracy possible and cutting off these sources of remuneration. He concludes that “in this ambiguous situation, rightsholders require more than ever a knowledge of what their rights are in order to negotiate with film producers agreements which do not turn to be disadvantageous for them in the end.”
Read the Report