Blue Yodel #31 – Sync or Swym

| June 4, 2012 | 2 Comments

No, Sync or Swym is not the latest single from IIIrd Tyme Out. Nor is it an old Welsh proverb. I just needed a title for this week’s Blue Yodel topic: sync rights.

Wait! This is really fascinating stuff! I promise tales of lawyers, guns and money. And sex. Okay, no sex, but that’s just because article XII, section 14.2 of the bluegrass code states “There shall be no sex in bluegrass. Ever. We mean it.”

Actually, there are no guns in this piece either. And, for our purposes, very little money. Which leaves us with lawyers.

The other day I got a letter from a lawyer. Just typing that sentence has me re-living the terror.

My heart raced as I opened it. Was it a cease-and-desist order for my singing the Michael Jackson catalogue in the shower? Or a claim that I owed $500K in back royalties for recording Edelweiss on an album? (I did pay the royalties for that, but I still have nightmares from dealing with the estates of Rodgers and Hammerstein – that’s another story.)

The letter began by describing a horrific incident last year at Dodger Stadium in which a Giants fan was brutally assaulted by a bunch of thugs. The fan, Bryan Stow, was in a coma for three months and is still in a long recovery.

It turns out a benefit concert was held in which Tim Flannery, the Giants’ third-base coach and Americana artist, sang one of my songs, The Road Into Town. A DVD was made of the event and they wanted my permission to use the song gratis on the DVD with all proceeds going to the Stow family and to making Dodger stadium safe for Giants and Padres fans.

It’s a good cause and I was happy to contribute.

The question is, how much did I contribute? I have no idea. I know very little about sync rights, so I began asking people who do.

First, the word sync, short for synchronization, refers to when a song is played with a visual image, moving or not, and given public exposure—even if it’s not synced exactly right, like when on YouTube you see people’s lips move, but the sound is a few seconds later. More on YouTube in a bit.

There are two licenses we’re talking about. The first, the sync license itself, requires the producers of the video, TV show, commercial, film, video game, corporate presentation, airline short, YouTube clip, whatever, to get in touch with the publisher of the song and request a license to sync it to their images.

This license is not as straightforward as a mechanical license (CDs, downloads, etc.), where the publisher and songwriter(s) split 9.1 cents per copy produced. Or a performance right where BMI or ASCAP collect your money for you and then send it to the estate of Michael Jackson.

For sync rights, a publisher can charge and collect whatever it wants for the sync right, which is where the free market comes in—another thing I’ve never understood.

If you ask for too much, they won’t use it. If you ask for too little, they’ll sign the contract right away and send you postcards of their Aegean vacation while you scrape the last of the peanut butter as you listen to your song being played during half-time at the Super Bowl.

The other license is the master recording license, which is obtained by the producer from the record label or the owner of the master (yet another reason to be your own record label these days). The master recording license gives the producers of the video, etc., the right to use a particular performance of the song.

So, if Charlie Sizemore’s recorded performance of his song No Lawyers in Heaven gets synced to an episode of The Good Wife, then the producers of that show need to get the sync rights from Charlie’s publisher and the master recording license from his record label. You can see how it gets complicated. It may be a while before Charlie gets paid. And Charlie’s a lawyer!

When I asked Dan Keen, whose middle name is “Revenue Stream,” what is negotiable in these licenses, he wrote back, “IT’S ALL NEGOTIABLE.”

So, there you are. You can negotiate the period of time the license covers, the parts of the world it covers, and, sometimes, if there will be any wardrobe malfunctions in the video.

Wait a minute. You can tell from the way I dashed off that last sentence that I don’t know what I’m talking about. So, I contacted a lawyer, Tony Berman, in San Francisco (the guy who sent me the letter about the Bryan Stow concert).

He graciously spent some time on the phone with me going over a few things that small self-publishers, like myself, need to know about sync rights – things that can be negotiated, which, again, is everything.

Things you want to ask in negotiating a sync license:

  1. What is the nature of the use? In other words, will your song be sung in its entirety by Brianna or will it be the background theme to Don Draper driving a Jaguar? (Say yes to either, by the way.)
  2. What is the duration? Will it be the full song or a few seconds?
  3. What is the territory the license will cover? US, World? Most licenses now cover the world due to the international nature of digital releases.
  4. What are the terms? How long is the contract for? Most are for perpetuity, but you might consider putting a time limit if your song is the background noise to a video game with multiple versions and a short shelf-life.
  5. What are the options? Here, we’re talking about: is it a theatrical release? DVD? Airline use? Is it an all media buy out, which covers everything?
  6. Can you get January Jones to record my voicemail message?

Okay, that last question is mine.

There are a few other things, like make sure if the producer is using the title of your song as the title of his or her production that you get paid extra for that use. If they use your song in a trailer, in addition to being in the tv show or movie, you should get paid extra for that, too. That’s called “in context use.”

My favorite legal euphemism is “most favored nation’s clause.” This has nothing to do with my preference for Danish stroopwaffles. Rather, if you’re a publisher, you want this in your license as a way of getting the same amount of money as the record label is getting for the master recording license (see above).

Usually, the sync license is a flat fee, so the producers of the movie only have to pay once up front and don’t have to pay every time it’s shown. All the more reason to ask for a lot of cash up front if you know your song will appear in the next Judd Apatow movie. By the way, movies pay more than television, in general.

I’m going to mention S&M now—social media—so if there are grown-ups in the room, please adjust your screen to a smaller font. If people are uploading your song to YouTube synced to a video of their cat doing push-ups, then YouTube owes you some money.

How do you get your money? Hey, I’ve done a lot of heavy lifting here already. If you could find out and let me know, that would be great.

I do know one way and that is by signing up for sync rights through CD Baby, which I’ve done for all my songs. CD Baby has partnered with a company called Rumblefish, a music licensing company, to collect money for you from social media sites. They will pay you for the use of your song on YouTube. At least that’s the way it’s supposed to work. But they do take half as an administrative fee.

From Chris Robley at www.cdbaby.com:

“Through a content ID process, YouTube identifies your song as being in the CD Baby catalog. YouTube automatically collects the revenue on your behalf and you will be paid through your CD Baby account. So you don’t need to manage any licensing aspect of this. Since your payment is based on ad revenue, the people uploading videos with your music will not be charged by YouTube, so this is a great opportunity to encourage your fans to use your music in their videos. The more videos out there with your music, the more money you’ll make!”

Sounds good to me.

I haven’t addressed the issue of how you actually get your songs into videos, tv shows, and movies. Let me Google that for you. There are a bunch of websites devoted to getting your music placed in videos in return for your money up front.

The site www.taxi.com is the most revered and reviled—revered by people who have made money through them, and reviled by people who never get songs placed through them. They do charge fees.

Insider tip: You have to have a good song. Video producers need to want what you have. And you have to talk to each other.

That will be $300.

 

Thank you to Dan Keen, Tony Berman (and others who didn’t want their names used for fear of being inundated with questions) for their expertise and ability to sprout flowers from my manure.

Chris Stuart

Chris Stuart is a writer and songwriter living in San Diego. He was the 2008 recipient of the IBMA Print Media Person of the Year award, co-writer of the 2009 IBMA Song of the Year, and past winner of the Merlefest Chris Austin Songwriting contest in bluegrass and gospel categories. You can follow him on Twitter @cvstuart, on Facebook, and at www.chrisstuart.com. On Tuesdays you can find him having fish tacos at Roberto’s in Del Mar.

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