“And the winner is…” the presenter of the 2018 Best in Film Awards pauses for suspense. Akan, the producer of the 2018 film “Heartbeat” could hear his own heartbeat, he had to win this! He just had to! So much time and resources had been expended in this project. At the screening all the positive feedback he received had shown that this was it. This was going to be the hit that gave him an award, not to mention the hefty cash price. “Producer of the year” had a nice ring to it. His friend, Magnus rushes into the dimly-lit hall to sit beside him, looking distraught.
“Akan, there’s a problem” Magnus says. What could be wrong? Akan wonders before voicing the question.
“Heartbeat isn’t winning anything tonight, it’s been disqualified. The award organizers discovered that the music rights was not cleared” Magnus responds. Akan can’t believe it. His phone beeps, it’s a text message from his PA. It reads “just received a demand letter from Croonz’s lawyer. We are being sued!”
I’m sure we know where this is going. Let’s talk music integration in films. This is the inclusion and use of music or song in a movie. Music does not only mean a song with lyrics and accompanying instrumentals – instrumentals alone is also music i.e. Classical music. Music integration is necessary for any good movie. I think that’s what Bollywood learnt many years ago and have since refused to quit, hence the 3-hour long movies and choruses of “Kuch Kuch Hota Hai” from the “Kuch Kuch Hota Hai” movie.
Nollywood has always used music in its movies from the very beginning, so much so that in many Nollywood films the music becomes so entwined with the film that we cannot recall one without the other. For example, the song Treasure by Adax in the film “A Million Tears” starring Kate Henshaw. Hollywood has several examples, a notable one is My Heart will go on by Celine Dion in “Titanic”. Hollywood has also used proudly Nigerian songs for its movie – Wizkid’s Daddy Yo is featured in the 2018 movie titled “Pacific Rim Uprising”.
WRONG USE OF MUSIC IN FILM
Too many Nollywood filmmakers unlawfully integrate music into their films.
The fact that the music has been released and is on the radio for anyone to listen to does not mean it is available for one to use in a movie production. To use music in a movie, the movie producer is required by law to obtain permission from the rights owner. Using music without permission is an infringement of the rights owner’s copyright. The producer can be sued and the money made from the movie can be awarded to the rights owner as damages.
Copyright infringement is also a criminal offence which means that the guilty party can be imprisoned or made to pay a fine.
Section 10(4) of the Copyright Act places an obligation on every film producer to enter into contracts with all persons whose works (including musical works) will feature in the movie. Therefore, getting clearance for music used in a film is not to be undertaken as an afterthought but should be a matter on the pre-production checklist.
WHAT’S IN A SONG?
Legally speaking, there are four separate parts to most music and each part is entitled to separate copyright protection:
- Lyrics (the words of the song)
- the composition (the musical notes, tunes/melody)
- the performance (the artist’s performance)
- the sound recording; (the CD or other recording) and
- The composition (which includes the beats) is protected as a musical work and is owned by the person who wrote the music composition;
- the lyrics as literary works and is owned by the songwriter;
- the performance (by the artiste) is protected as performance rights and is owned by the artiste; and
- the sound record (CD/DVD) is protected as sound recordings and is owned by the Artiste for whom the sound record was produced.
As an illustration, Irreplaceable, the 2006 song recorded by Beyoncé for her second album B’Day was written by Shaffer “Ne-Yo” Smith. “Ne-Yo” would be regarded as the songwriter/composer with rights to the lyrics and musical work; and Beyonce the performing artiste would have the performance and sound recording rights to the song, subject to a contrary agreement.
In practice, some or all of these rights may be owned by the same person. For example, many Nigerian artistes write their music composition and lyrics, as well as perform the song which is then recorded for them. Therefore, it is not unusual to find situations where Nigerian artistes own all the rights comprised in a song.
The ownership of these rights can be varied by contract. For instance, it is usual for artistes signed up to record labels to contract away their rights to the sound recordings.
TYPES OF MUSIC INTEGRATION
There are various ways to use music in your film: you can commission a composer for your film; obtain permission to use an existing song record; or use music that is in the public domain.
Commission a song
A film producer can opt to commission an artiste to compose a song for the film. However, if the artiste is signed up to a record label, it is important to confirm the nature of the deal between the artiste. Many record deals with artist say that the record label owns all recordings made of the artiste’s performance. In such case, the film producer would have to clear with the record label before signing off with the artiste.
Producers who choose to commission music should know that it is important to enter into a valid agreement which stipulates what rights the producer has to the music – whether an exclusive license, a non-exclusive license or an outright ownership right. In many cases, the composer would be willing to grant the Producer an exclusive license to use the song for the film project. It is advisable to negotiate for a broad range of rights right to use the song not only in the film, but also in sequels, prequels, spinoffs, trailers, etc. Whatever the case, the music owner also has a perpetual right to be credited in any use of the music in a film.
Use Existing Music
To use a pre-existing music, a Producer must obtain the music license from the owners of the music rights. There are two ways in which a Film Producer can use a pre-existing music:
- One, the Producer can create its own record of a pre-existing song by using the lyrics and composition of the music. For example, the Producer can have an artiste perform the song Irreplaceable and record the performance for the film project. In this case, the Producer would be required to obtain a synchronization license (this is just a big grammar used to describe permission to use the lyrics and musical composition of the song in a film project). A synchronisation license (sync license) should be obtained from the songwriter/music composer. Where this license is obtained (without the Master Use license described below) it means that only a cover (a new performance/recording by someone else other than the performing artist or composer) of the song can be featured in the film.
- Alternatively, the Producer can use a previously recorded song (i.e. the master recording of the song) in the film project. In this case, the Producer would obtain a Master Use License. This is the more popular way in which Nollywood uses music in films. As earlier mentioned, the right to the master recording is owned by the artiste, unless the artiste has transferred this right to the recording company or any other person. If the artiste is signed up to a record label, it is almost certain that the rights to the master would have transferred to the record label.
A Master use license confers the permission to use the sound recording of a song in a film. This license is usually obtained from the record company/producer.
The Sync/Master Use /Composer Agreement should be well documented and all the uses for the music should be clearly stipulated. The license should state what part of the film the music will be used: main title (opening credit) or end title (closing credit); feature (music is the main focus of the viewers’ attention) or background (music plays in the background of a scene). The number of times the music is used, the duration and placement for each use should also be spelt out.
Nothing is to be left to chance. A written agreement, no matter how simple, should be executed to document the license. The aim is to show that permission has been granted by the owner of the music for the use. If you don’t prepare a written contract, what’s the proof that you have the necessary consent? It’s all fair and good that the song writer or record producer is your friend but we all know money can cause conflict even among blood relations. Save yourself the drama and stress and have your arrangement/agreement well documented.
Use of music in the Public domain
Producers also have the option of using music that are already in the public domain. This is music in which the copyright has expired. Copyright in a musical work expires seventy years after the creator of the music has died while copyright in a sound recording expires fifty years after the recording was first published. Music in the public domain is free to use but the user should always credit the creator of the music.
Generally, in any use of copyrighted work, the owner of said work is to be credited in the film. While a musician may end up receiving little or no pay for the use of his song, the film can serve to create greater awareness of his music, expand his fan base and increase commercial demands for his music.
In conclusion, the need for permissions and the proper documentation of licenses which permit use of music in a film cannot be overemphasized. Unauthorised use of music can lead to law suits which result in economic loss or criminal sanctions. Film producers can ease themselves out of the are encouraged to engage the services of entertainment lawyers who understand the nuances of the music and film industry.
Many Thanks to the entertainment and IP Lawyers atJackson Etti and Edu for this piece. JEE ia a full service law firm focused on six key sectors: Energy & Natural Resources, Fast Moving Consumer Goods (FMCGs), Financial Services, Health & Pharmaceuticals, Real Estate & Infrastructure, and Technology, Media & Entertainment.