Dear all,
I am an amateur filmmaker and have just finished my first documentary which was filmed in the slums of Manila.
My documentary contains a scene in which the protagonists sings a karaoke version of a Miley Cyrus song. The actual music recording is from some obscure Philippino Karaoke company and so I will probably not run into trouble in terms of the master rights ( I doubt that they would have proper licensing themselves) but I am worried about the publishing rights for these lie with BMG and Warner Chappell.
The film was created with no budget whatsoever and I don’t intend to earn money with it, it will solely be used for fundraising for the slum and be sent to festivals/ uploaded to vimeo. BMG has gotten back to me and stated 250£ for a 1 year festival license subject to whatever Warner Chappell would be asking for. However they did seem open to negotiations since they asked if it was a charity project or a student project etc. Now my questions are:
1) Does this use of the karaoke song fall under fair dealing?
2) Is it likely that these publishing companies will sue somebody for using a song like this in a nonprofit film in case no license is obtained?
3) What to best write back? Are they more likely to lower the fee if it branded a "charity project" or hike it up since then someone is making money with it, so to say?
Many thanks in advance for your reply, I really appreciate the work your doing here in the forum!
Isa
Using Karaoke scene in documentary
Hi francis,
I'm not clear why both BMG and Warner Chappell seem to be involved here. Does one own the rights to the lyrics, and the other to the music? It is only the songwriter and composer (assuming they aren't the same person) who are entitled to any royalties for what are known as synchronisation (sync) rights. I suggest you would better discussing your needs with CueSongs initially, as they may be able arrange the correct licence, based on your intended use of your video. Make sure they are clear that the licence you require is for your actor's cover performance of the song, and not the use of Miley Cyrus's recording, as this should affect the level of royalties involved. The festival licence seems totally inappropriate, as is the one year term.
It is arguable that since your video is a documentary about the singer, then inclusion of this song in the background might be judged 'incidental' and therefore fair dealing which wouldn't require a licence. However it is entirely dependent on how much of the karaoke performance was included, and whether the singing was an essential part of the video, or just a small vignette. To be on the safe side you should discuss the issue with CueSongs. Make sure you tell them this is a charitable project, as I believe they offer special rates for that. Only if CueSongs advise you that they can't deal with sync licences in this instance, should you approach which ever it is between BMG and Warner Chappell that holds the sync rights for the song.
I don't think that it is worth taking the risk that your use of the song will be overlooked, especially as you propose to show the video on Vimeo where the song is likely to be spotted fairly quickly by the automated services operated by the majors to detect such usage. At the very least you are likely to find your video being taken down using a DMCA notice very soon after it first goes up.
I'm not clear why both BMG and Warner Chappell seem to be involved here. Does one own the rights to the lyrics, and the other to the music? It is only the songwriter and composer (assuming they aren't the same person) who are entitled to any royalties for what are known as synchronisation (sync) rights. I suggest you would better discussing your needs with CueSongs initially, as they may be able arrange the correct licence, based on your intended use of your video. Make sure they are clear that the licence you require is for your actor's cover performance of the song, and not the use of Miley Cyrus's recording, as this should affect the level of royalties involved. The festival licence seems totally inappropriate, as is the one year term.
It is arguable that since your video is a documentary about the singer, then inclusion of this song in the background might be judged 'incidental' and therefore fair dealing which wouldn't require a licence. However it is entirely dependent on how much of the karaoke performance was included, and whether the singing was an essential part of the video, or just a small vignette. To be on the safe side you should discuss the issue with CueSongs. Make sure you tell them this is a charitable project, as I believe they offer special rates for that. Only if CueSongs advise you that they can't deal with sync licences in this instance, should you approach which ever it is between BMG and Warner Chappell that holds the sync rights for the song.
I don't think that it is worth taking the risk that your use of the song will be overlooked, especially as you propose to show the video on Vimeo where the song is likely to be spotted fairly quickly by the automated services operated by the majors to detect such usage. At the very least you are likely to find your video being taken down using a DMCA notice very soon after it first goes up.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Dear Andy,
cuesongs has advised me that I would have to deal with Warner/ BMG directly. Now I received the following replies from them.
BMG:
Warner:
So BMG seem a bit more open to negotiation ( it is a charity project after all and I am a student) Can you give me a pointer as to how to proceed best and Warner means, when they say 250£ for 100% publishing? Would that mean I 'just' have to pay them and not BMG?
Thanks
Isa
cuesongs has advised me that I would have to deal with Warner/ BMG directly. Now I received the following replies from them.
BMG:
thanks!We have a flat fee for a 1 year film festival licence of £250 a side based on 100% MFN with co-pubs and master.
this usually does not include online broadcasting.
Is this a charity project? a bit more background would be good and have you spoken to co publishers and mater owner yet? also let me know if this is a student project
Warner:
Subject to approval for 1 year festival use we would suggest a fee of £250 for 100% publishing.
So BMG seem a bit more open to negotiation ( it is a charity project after all and I am a student) Can you give me a pointer as to how to proceed best and Warner means, when they say 250£ for 100% publishing? Would that mean I 'just' have to pay them and not BMG?
Thanks
Isa
Hi Isa
I really think BMG / Warners have misunderstood what you are asking for. I have no idea what they mean by '100% MFN with co-pubs and master'. I don't see where the 'master owner' comes into this because you are not asking to use the Miley Cyrus recording (the master).
Plus £250 seems ridiculously high. You need to explain that this is a karaoke performance, for which royalties have already been paid for the use of the music and lyrics (or even if they haven't as you suspect, that isn't your problem), and you just require a sync licence to include that amateur performance in your video. You do not, as I understand it, intend to broadcast the video, merely make it available via Vimeo (that is not 'broadcasting' in the sense the term is used in copyright law), and to submit it to film festivals, which again is not broadcasting. If the video is shown at a festival the organiser will be responsible getting a licence for that purpose.
Alternatively, you need get BMG/Warners to explain why the festival licence is the appropriate one for your needs, and what they mean by '100% MFN with co-pubs and master.' Unless any other forum contributors wish to chip in, I don't think we can give you any further advice.
I really think BMG / Warners have misunderstood what you are asking for. I have no idea what they mean by '100% MFN with co-pubs and master'. I don't see where the 'master owner' comes into this because you are not asking to use the Miley Cyrus recording (the master).
Plus £250 seems ridiculously high. You need to explain that this is a karaoke performance, for which royalties have already been paid for the use of the music and lyrics (or even if they haven't as you suspect, that isn't your problem), and you just require a sync licence to include that amateur performance in your video. You do not, as I understand it, intend to broadcast the video, merely make it available via Vimeo (that is not 'broadcasting' in the sense the term is used in copyright law), and to submit it to film festivals, which again is not broadcasting. If the video is shown at a festival the organiser will be responsible getting a licence for that purpose.
Alternatively, you need get BMG/Warners to explain why the festival licence is the appropriate one for your needs, and what they mean by '100% MFN with co-pubs and master.' Unless any other forum contributors wish to chip in, I don't think we can give you any further advice.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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CopyrightAid
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Regarding "MFN with co-pubs and master", according to Universal Music (http://www.umusicpub.co.uk/en-GB/FilmAn ... Music.aspx):
"Most Favoured Nations (MFN) ensures parity between the rights holders. If the specified rights holder (co-publisher or master) quote higher, then our fee should be raised to at least equal theirs."
I agree with Andy that £250 seems prohibitively high for your usage though.
I would go back to Warner/BMG and ask what the 100% means, confirm that no other payments are necessary and see if they can move on this figure.
"Most Favoured Nations (MFN) ensures parity between the rights holders. If the specified rights holder (co-publisher or master) quote higher, then our fee should be raised to at least equal theirs."
I agree with Andy that £250 seems prohibitively high for your usage though.
I would go back to Warner/BMG and ask what the 100% means, confirm that no other payments are necessary and see if they can move on this figure.