Music licensing has many variations and nuances, and so I’ve given it its own section. You can find ways of getting real music into your small budget production. But of course you need to make sure that you’re licensing it correctly and / or that you have contracts and agreements in place so that you don’t have trouble down the line.
First I want to point out several pitfalls in the use of public domain music in film. There are works that are based on public domain material, but which are themselves copyrighted (called “derivative works”). For example, electronic composer and musician Wendy Carlos made a brilliant use of public domain music with her soundtracks for A Clockwork Orange and The Shining. The main theme for A Clockwork Orange is derived from Henry Purcell’s Music for the Funeral of Queen Mary (1695, written specifically for the funeral of Queen Mary II of England), and the march from A Clockwork Orange is from the “Turkish March” section of Beethoven’s Ninth Symphony (composed between 1822 and 1824). The main theme for The Shining is from the Dies Irae (Latin: “Day of Wrath”), a 13th Century Gregorian Chant. (In fact, the base tune from the Dies Irae has been used in the scores for a lot of movies.)
If you choose to create and record your own performance based on an actual original composition of any of these songs (say, based on sheet music from Musopen.org or PDInfo.com) and use it in your film, then that should be fine. However, it would be a big mistake to use Wendy Carlos’ actual recording of her work in your film, because the derivative work is copyrighted. In fact, using the same intonation or phrasing of her songs or trying to make a song that sounds very much like her work will also get you into trouble. You can find all of her works in the U.S. Copyright Office database, and you would need to make an agreement with her to use them (or possibly it looks like Warner Brothers Entertainment holds the rights to the soundtrack to The Shining as a work made for hire).
This example also points to the fact that most music licenses that you will deal with will have at least two licenses: a license for the composition itself (the publisher or “synchronization” license) and a license for the performance of the song (the “master” license, usually the record label). Please see “Avoiding problems with public domain music” from Public Domain Sherpa and “A Filmmaker’s Guide to Music Licensing” from Film Independent for more information on music licensing and dodging problems in the future.
The possible exceptions to the two license rule are if you use Creative Commons music or work commissioned from a band or composer. Additionally, you could use just the composition itself for pretty much any song and record your own personal performance as a cover song if you get the correct license to do so, which could save you some money.
There some who suggest the “nothing ventured, nothing gained” approach, and that you can try to see if you can get the song that you want for a price that is within your budget, as producer and director Chris Suchorsky explains in “How to Get a Big-Budget Song in Your Low-Budget Indie Film”. He does note that whether you are working with the artist directly for the deal or not, you should also plan on asking the artist’s permission first so that they can sign off on the use of their work in your film.
Also, when dealing with royalty free or rights managed music, it may look like you are clear with one license. But you may need to either list the songs and artists on a cue sheet from the royalty free company that you are working with, or get the synchronization license for the song directly through the publisher (if the publisher is different from the company you’re getting music from). This ensures that the artists get paid for their work. An explanation and example of using cue sheets can be found at the page “Cue Sheets and Performing Rights” at the site for PremiumBeat. Royalty free companies normally work with the Performance Rights Organizations themselves, but may need you to send the information to the PROs for your particular use.
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