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April/May 2015

by David McLaughlin

The Lawful Truth: Synchronisation Agreements – Part 1

by David McLaughlin

The Lawful Truth: Synchronisation Agreements – Part 1

The modern music industry has never been in more of a state of flux than it is right now. Over the last decade there has been a dramatic shift in the revenue sources that are driving the industry. Although sales of recorded music (including via digital sales and more recently streaming services) of course remain the bedrock of music industry income, the percentage that these make of total revenues, alongside other sources such as live performance and merchandise, has declined. Consequently it’’s never been more important for you to think about the other ways you can get paid for the music you produce.

A very good example of this is the synchronisation of music. All that synchronisation really means is ‘’music with pictures’’ or the syncing of music to some kind of image. In other words we are talking about music used in film, TV, video games and any other medium you can think of where music provides background to what is being presented in the visuals up front.

For the purposes of this article we’’re going to focus on the use of music in film and TV, as these uses are by far the most common. However, it should be mentioned that increasingly today the ever growing local video game industry is proving to hold more and more opportunities for new and established artists to contribute music.

We’’re going to be dealing specifically with the use of featured music such as a single song used at some point in an advert, TV show or film. This is different from the atmospheric and mood-building music which may be written to run throughout a film or TV show, like the very grand orchestra music playing in the climax sequences of a Hollywood blockbuster.

Where any music is used in film or TV there are a number of legal issues that have to be dealt with in a Synchronisation Agreement. Most importantly approval must be obtained from all the owners of the music in question. Firstly this means ALL the songwriters. If the music being used is also not a new, specifically created recording of the song, but rather an already existing recording, then as well as permission of the songwriters, separate permission will also be needed from the owner of this recording. If the song was recorded for a record label then the label will generally be the owner of the recording.

Because of these two very different sets of rights involved it is common to see a separate Synchronisation Agreement with first the songwriters and then the record company that owns the recording. However, if your band writes all of its own songs and owns all of its own recordings, then there is no reason why everything can’’t be dealt with in the same agreement.

After dealing with the issue of ownership one of the next most important issues to consider in a Synchronisation Agreement is what exactly are you allowing your song to be used for? There are a few different aspects to this.

Firstly, make sure it is defined what movie or TV show your song is to be used in. After all you may be happy for your song to be used in a powerful, uplifting drama which you have been specifically provided some good background information on, but you may not be so keen for it to be used in just any other film the person acquiring the rights from you decides.

Secondly, is your song to form part of the general soundtrack in the movie? In other words will it be used in the same way as a number of other songs throughout the movie at different points, or is your song to be featured in a much more prominent way? It might perhaps be the theme song for the movie, or perhaps the song that is used to highlight the romantic interest between two characters throughout the film or TV show?

Issues like this can definitely influence the price that should be paid for the use of the song so it’’s important these are defined in the Synchronisation Agreement.

In terms of the use of your song the other big issue to have clarified is the extent to which the TV show or film will be distributed. Although generally films will require worldwide rights to use the song, the rights required by TV shows may not necessarily be so extensive in every case. All of these factors will in theory affect the price that should be paid for the use of the song and may also affect how you feel about your song being used.

In the next issue of NZ Musician we’ll continue this discussion of the important legal issues to be aware of in Synchronisation Agreements, including looking at some of the more specific issues that arise when music is used in adverts.

David McLaughlin is a specialist music lawyer with Auckland law firm McLaughlin Law (www.mclaughlinlaw.co.nz). He can be contacted by email at david@mclaughlinlaw.co.nz or on 09 282 4599.

Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.