AUGUST
MUMBO JUMBO
Restrictions on Promotion in Certain Areas
By Todd Brabec
Jeffrey Brabec
In any negotiation with a songwriter, the music publisher will try to secure as many rights as possible without any restrictions so that it will be able to channel its promotion efforts in a wide range of income-producing areas. For example, it may promote songs not only to recording artists and record producers but also to film and television companies, advertising agencies, video manufacturers, video game producers, ringtone companies, karaoke firms, video jukebox distributors, print dealers, and so on.
The songwriter, however, may have concerns, either creative or political, as to how his or her songs are used, and many times will try to restrict the publisher’s promotion efforts and ability to grant licenses for certain types of uses.
These negotiations usually revolve around the use of songs in commercials, political (or “special interest”) radio and television campaigns, and NC-17 or X-rated motion pictures, but can also extend to any use in a motion picture, television series, video game, ringtone, or other audiovisual project that may be seen or heard by the public.
Because many writers value the integrity of their songs and have concerns about how and in what context they might be used, the negotiations on these issues can become quite heated and, in some cases, can make or break a deal.
Recognizing that commercials can have the potential of denigrating a song by identifying it with a consumer product, especially when the lyrics are changed, many publishers will give approval rights, or at least consultation rights, to the songwriter, who thus can express his or her objections. Others will ask the writer to list the types of product of concern (alcohol, tobacco, hygiene, bathroom, etc.) and agree that songs will not be licensed for use with such identified “objectionable products” without the writer’s consent. Other publishers will demand that such decisions are within their exclusive province and provide for no restrictions on licensing. In film and television the issues are a bit more difficult, because restrictions in promotion and licensing in those media are the lifeblood of many publishers’ activities. Because uses in movies and TV rarely hurt songs and have the potential of generating enormous amounts of income, to say nothing of the large media and general public exposure they generate, music publishers try to limit any writer approvals in this area. As for use in X-rated and sometimes NC-17 films, however, writer approval rights are many times accepted by the publisher.
If approvals are given to the writer, the time fuse for the writer to say either yes or no is usually a short one, such as two to five days. Quick answers to producers, especially in the making of television series, where scripts are being rewritten and scenes taped on a daily basis, are essential for getting songs into such projects. Writer-approval clauses usually provide that if a writer does not respond within the negotiated time frame, the use is deemed approved and the publisher may negotiate the license. In very limited cases, the contract might state that if a response by the writer is not received, the use is deemed denied.
©2011 Jeff Brabec, Todd Brabec
This article is based on information contained in the new, revised 6th edition of the book “Music, Money, And Success: The Insider’s Guide To Making Money In The Music Business” written by Jeffrey Brabec and Todd Brabec (Published by Schirmer Trade Books/Music Sales). See also www.musicandmoney.com.