Film, Television and Music Production Law Blog

Is a notice terminating a license to use a copyrighted composition sufficient to establish willful copyright infringement?

In a recent decision, the United States District Court for the Southern District of New York held that evidence that a record company continued to sell records containing copyrighted compositions after receiving a notice terminating its compulsory licenses for failure to pay the required statutory royalties was sufficient to establish that the infringement was willful. EMI Entertainment World, Inc. v. Karen Records, Inc.  2011 WL 3795037, 1 (S.D.N.Y.,2011).

Plaintiff, EMI Entertainment World, Inc. is a music publisher and owns copyrights in the four musical compositions at issue in this case. EMI receives royalty payments for its compositions through Harry Fox Agency. Defendants are record companies owned by individual defendants Isabel Rodriguez and her husband Bienvenido Rodriguez. On Janurary 14, 2005, EMI filed a lawsuit for copyright infringement against the record company. Following discover, the Court granted partial summary judgment to EMI with respect to its claims of copyright infringement of the works for which royalty was not paid. However, the Court denied summary judgment to EMI for its claims for statutory damages for willful infringement. The Court requested the parties to submit supplemental evidence indicating the number of infringing sales that occurred during the time period for which damages were sought.

A plaintiff who successfully proves copyright infringement may request the court to award statutory damages under 17 U.S.C. §504(c) in addition to the award of actual damages and profits. “The Copyright Act affords a trial court ‘wide discretion … in setting the amount of statutory damages.’” Id at 2. In determining this amount, the trial court takes into account ‘the expenses saved and the profits reaped by the infringers’; ‘the revenues lost by the plaintiff’; ‘the value of the copyright’; ‘the potential for discouraging the defendant’ and ‘the deterrent effect on other besides the defendant.’ Id. In addition to these factors, it is also relevant to determine whether the defendants conduct was willful or innocent. To prove willful infringement under the Copyright Act, the plaintiff must show that the:

(1)             Defendant was actually aware of the infringing activity; or

(2)             Defendant’s actions were the result of the reckless disregard for, or willful blindness to, the copyright holder’s rights. Id. at 3.

In this case, EMI advanced three reasons for the Defendant’s willful infringement:

(1)             The individual defendants had extensive experience in the industry who owned ‘more than six hundred copyrighted sound recordings and musical compositions’. Id. at 4.

(2)             EMI’s prior suit against the Defendant’s with respect to other copyrights made the Defendant’s ‘well aware of the obligations to obtain mechanical licenses and pay statutory license fees for the use of others' musical compositions.’ Id at 5.

(3)             EMI’s letter to the Defendant’s put them on notice about the termination of its compulsory licenses for failure to pay the required statutory royalties. Id.

The Court held that EMI presented a strong circumstantial evidence of willfulness which warranted an award of enhanced statutory damages. The Court awarded EMI $25,000 in statutory damages for infringement of each composition.

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Will the Use of Common Elements and Themes Leave Filmmakers Susceptible to Copyright Infringement Suits?

Tales of drug-dealing, jail time and growing up in the ghetto are too common to be considered original elements of a copyrighted work.  

The United States District Court for the District of New Jersey recently granted hip-hop artist 50 Cent’s motion to dismiss a suit brought by a plaintiff who sued the rapper for copyright infringement. Winstead v. Jackson, 2011 U.S. Dist. LEXIS 107560 (D.N.J. 2011).

The plaintiff, Shadrach Winstead (“Winstead”), claimed that 50 Cent (also known as Curtis Jackson) (“Jackson”) used words and plot themes from Winstead’s copyrighted autobiography “Preacher’s Son – But the Streets Turned Me Into a Gangster” (the “book”) in a CD/DVD set produced by Jackson in 2009. Winstead asserted that several elements from the autobiography – including jail time for the main characters, committing crimes for money, and the death of a parent – were also present in Jackson’s production “Before I Self-Destruct” (the “film”). Winstead also claimed that portions of dialogue were taken from his book and used in the script of the film.

Jackson filed a motion to dismiss the suit, arguing that Winstead failed to state a claim upon which relief can be granted. The Court granted Jackson’s motion, determining that the elements that Winstead argued he had copyright protection over were so common that they could not be considered copyrighted material. The decision relied on a copyright law doctrine known as “scenes a faire” which essentially means that there are certain elements to a work that are not protected by copyright since they are essential to express the character of the work itself.

To establish a claim of copyright infringement, a plaintiff must establish:

1. ownership of a valid copyright; and
2. unauthorized copying of original elements of the plaintiff’s work.”

Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d. Cir. 2002).

Though Winstead was able to prove ownership of a valid copyright in his book, the Court found that he could not prove any copying of original elements from his work. “[G]eneral plot ideas and themes lie in the public domain and are not protected by copyright law,” the Court stated. Id. at 6. “In addition, all situations and incidents which flow naturally from a basic plot premise, known as scenes a faire, are not entitled to copyright protection.” Id.

While the Court acknowledged the similarities between the two works’ characters, themes and settings, it held that these common features have been part of the public domain for some time and have provided the themes for many films and television programs before. “[A]ny common themes of a young male whose tumultuous upbringing leads him to resort to a life of crime and violence in order to gain power and money are scenes a faire.” Id. at 7.

Winstead also argued that Jackson lifted dialogue from his book – including phrases such as “ringing,” “stash,” and “get the dope, cut the dope” – for use in the film. However, the Court also found this language too common to be the protected under Winstead’s copyright. “The average layman, who would be observing these phrases in the context of an overall story or song, would not regard these minute snippets as unique or protectable,” the Court held. Id. at 9.

The Court’s decision is significant because it demonstrates that there are limits to how much copyrighted material is protected. Winstead’s copyright protection over his book did not extend to plot themes and generic language used in it. The Court’s holding gives copyright holders an example of elements in the public domain that are not included within the scope of copyright protection.

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What are the Intellectual Property Aspects of Pitching a Proposed Television Show?

We routinely have potential clients contact us about handling the legal aspects of a proposed television show. Most of the time, this sort of inquiry involves one of two categories: (a) a reality series or (b) a minor celebrity-sponsored advice show.

These are called “strip shows” (not as interesting as it sounds). A strip show is a television series which involves minimal set design; name actors; and other high cost production aspects. This leads to the most important aspect of pitching such a television series: money. It is critical to make the production cost effective and, if at all possible. bring money to the table.

I cannot emphasize enough how it increases the chance of a series being picked up if the one pitching it has some level of financing. Otherwise, it is just another (hopefully) compelling idea that needs money to be put on the air. Great premises – especially in the reality television arena – are plentiful. People with financing behind them are not.

Another important aspect is to shoot a few episodes so that they can be displayed at syndicated television trade shows. The idea is to set up the pitch meetings before the trade shows, so that one is not attending the show as simply another producer pitching material. It is better to have made contact beforehand and set up an appointment to show one’s wares in private to a potential syndicator.

It is important to keep in mind that shooting the proposed episodes should always be done after all parties sign agreements waiving potential intellectual property ownership rights in the series. This is one of those steps that is frequently skipped because the series appears to have no intrinsic value at the outset. But that is exactly the point: one is trying to build and protect that value. Complete ownership of the rights is critical to doing so.

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When is an idea for a television show so “substantially similar” to the idea for another that it violates copyright law?

Recently, the a Federal Court in the State of New York was asked to decide whether the Spike television show, “Pros v. Joes”, was similar enough to a proposed show called “Two Left Feet”, such that it infringed upon the copyright issued to Two Left Feet.  Castorina v. Spike Cable Networks, Inc., No. 10-2954 (March 24, 2011).

In 2004, Plaintiffs Christopher Castorina and Steven Morse (“Plaintiffs”) pitched a treatment for a television show called Two Left Feet.  That treatment proposed a show where amateur athletes would compete against professional athletes.  In 2006 after Pros v. Joes debuted on Spike, the Plaintiffs sued Spike in the United States District Court for the Eastern District of New York claiming that Pros v. Joes was so “substantially similar” to Two Left Feet that it infringed upon the copyright issued to Two Left Feet. 

The Plaintiffs claimed that the two shows were similar in that: 1) each portrayed competition between professional athletes and amateur athletes; 2) the competitions were in the sports of basketball, hockey, baseball, and football; 3) each employed two judges of notably different personalities and backgrounds; 4) each had guest appearances by celebrity sports figures; and 5) each used virtually the same language to promote the shows.  The Plaintiffs took the position that “no theory of coincidence, simultaneous creation, prior common source or any explanation other than copying” could account for the similarities.  Id.

In order to establish copyright infringement, the Plaintiffs had to establish: 1) ownership of a valid copyright; and 2) copying of constituent elements of the work that were original.  Id.  To establish the second element, the Plaintiffs had to prove that Spike actually copied the Plaintiffs’ work and that the copying was illegal because “a substantial similarity exists between the defendant’s work and the protectable elements of plaintiffs’.”  Id.

At the outset, the court noted that, “the standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” (the “Ordinary Observer Test”). Id. citing Peter F. Gaito Architecture, LLC v. Simeone Development Corp., 602 F.3d 57, 63 (2d Cir. 2010).  When applying the Ordinary Observer Test, a court must ask whether “an average lay observer would recognize the alleged copy as having been appropriated from copyrighted work.”  Id. citing Gaito, 602 F.3d at 63.  The inquiry must address whether the “alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged the elements of his or her work.”  Id.  There must be substantial similarity in the expression of ideas and not just in the ideas themselves.  “If a work ‘copies the original way in which the author has selected, coordinated, and arranged’ these unprotectable elements to such an extent that the copying work is substantially similar to the ‘expression of ideas’ and ‘total concept and overall feel’ of the copied work, infringement can occur.”  Id. citing Gaino, 602 F.3d at 66-67.

Based upon the evidence presented, the court determined that Two Left Feet consisted largely of stock concepts and Scène à faire – the concept that certain elements of a creative work are not protectable via copyright because they are mandated by or customary to the genre.  The court held that Pros v. Joes could only infringe upon Two Left Feet “if it copied the ‘original way in which the author has selected, coordinated, and arranged’ various elements to such an extent that its ‘expression of ideas’ and ‘total concept and overall feel’ was substantially similar to the Two Left Feet treatment.”  Id. citing Gaino, 602 F.3d at 66-67. 

The court determined, and the Plaintiffs conceded, that the Two Left Feet treatment contained only limited original selection, coordination, and arrangement.  Plaintiffs claimed that they purposely left the treatment vague to show their “flexibility.”  Unfortunately for Plaintiffs, the court found that “the treatment’s vagueness, however intentional, also undercuts its protectability, because the less ‘specifics’ and ‘detail’ it contained, the less it uniquely and imaginatively ‘selected, coordinated and arranged’ the stock elements contained within.”  Id. citing Gaino, 602 F.3d at 66-67.  The treatment’s selection, coordination and arrangement of those stock elements were also largely inherent to a sports reality show and “not ‘original’ creative expressions of any particular idea.”  Id.

The court also pointed out numerous differences between the shows.  For example, while Two Left Feet relied heavily on the dynamic between two judges, one “good” and one “evil”, Plaintiffs did not allege that Pros v. Joes utilized a similar creative choice.  Two Left Feet also envisioned the hosts providing their subjective beliefs and acting as judges, while winners on Pros v. Joes were determined using an objective points system, such as the number of baskets scored.  Also, in Two Left Feet the amateurs competed against the professionals in the sport played by the professional.  In Pros v. Joes the contestants might compete against the professional in the professional’s sport, but with a twist – e.g.  shooting baskets from a moving conveyor belt. 

In conclusion, the court held that based upon the evidence “no objective observer could conclude that Two Left Feet and Pros v. Joes share a substantially similar total concept and overall feel.”  Id.  As a result, the court granted Spike’s motion to dismiss the Plaintiffs’ complaint.

Download Castorina v. Spike Cable Networks, Inc., No. 10-2954 (March 24, 2011)

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May a ticket broker be sued for selling event tickets that it does not actually possess?

The Chancery Division of the New Jersey Superior Court in Essex County recently decided that ticket brokers who offer event tickets for sale without actually possessing those tickets are “service providers” entitled to immunity under the Communications Decency Act of 1996 (“CDA”).  Milgram v. Orbitz Worldwide, Inc., No. 09-4-9349 (Judge Costello, August 26, 2010).

Anne Milgram, New Jersey’s Attorney General, sued Orbitz and its ticket-broker affiliates for violation of New Jersey’s Consumer Fraud Act (“CFA”).  The grounds for that suit were two-fold.  First, Milgram alleged Orbitz was offering to sell tickets to attend a concert at Giants Stadium featuring Bruce Springsteen and the E Street Band without actually possessing those tickets.  Second, at least two of the tickets had section and row numbers that did not exist. Milgram alleged violations of the CFA and advertising regulations created pursuant to the CFA.

Orbitz argued that it was merely a “service provider” entitled to protection under the immunity provision of §230 of the CDA.  In other words, Orbitz was taking the position that the lawsuit for alleged violation the CFA was pre-empted by the immunity provision of the CDA.  The immunity provision grants immunity to service providers for posting information originating with a third-party user of its service.  Orbitz argued that the descriptions of the offered tickets were created by third-party sellers, not Orbitz.  Thus, Orbitz was simply a service provider entitled to immunity under the CDA.

The Court agreed with Orbitz and held that it was immune from suit pursuant to §230 of the CDA.  The Court noted that qualifying for immunity under the CDA requires three elements: 1) the entity seeking immunity must be a “provider or user of an interactive computer service;” 2) the alleged liability must be based on the entity having acted as a “publisher or speaker;” and 3) the entity may only claim immunity with regard to “information provided by another information content provider.”  Id.

The Court held that Orbitz satisfied all three elements.  First, there was no issue that it qualified as a “provider of an interactive computer service” as defined by the CDA.  Second, Orbitz acted as a “publisher or speaker.”  Per the Court, the plain language of §230 was designed to promote e-commerce and prevent lawsuits from shutting down websites.  Orbitz’ conduct in advertising and selling concert tickets to consumers without actually possessing those tickets is conduct that “fits squarely within the CDA’s purview.”  Id.  Third, Orbitz was not an “information content provider” under the CDA.  While such a designation would have been fatal to Orbitz’ immunity claim, the Court determined that Orbitz actions were “nothing more than the exercise of a publisher’s traditional editorial functions.”  Id.  Orbitz was not responsible for creating the inaccurate or misleading ticket listings as the information originated with the third-party sellers using Orbitz’ website.  Thus, the Court held that Orbitz was entitled to immunity under the CDA as “a provider of interactive computer service that served as a conduit for information provided by another information content provider.”  Id.

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When is a billboard too racy?

A billboard in Atlantic City, New Jersey has recently garnered national attention.  The billboard for “Moonshine Follies”, a show running at the Resorts Casino Hotel (“Resorts”) from February 20th to April 17th, pictures a woman’s bare bottom as part of the advertisement.   NJ Transit owns the land on which the billboard is situated and received several complaints about the explicit nature of the advertisement.

NJ Transit informed Resorts that it wanted it to take down the billboard.  Resorts then filed a lawsuit seeking an injunction to keep the billboard up.  Judge Nelson C. Johnson of the Superior Court of New Jersey, Atlantic County, preliminarily ruled that the billboard would stay up until he could convene a March 10^th hearing to determine its fate.

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One Cannot Use Someone Else’s Trademark under the “Historical Use” Exception Unless it is True Historical Use.

 

    On September 2, 2010, the United States Court of Appeals, Fourth Circuit, decided a case that discussed the Historical Use Exception to the Trademark laws. That exception allows a trademark to be used by someone other than the legal owner of it if it is included in an historical work. It is essecually an exception that provides for Fair Use of the trademark.

    Specifically, the Court in Bouchat v. Baltimore Ravens Limited Partnership, et al. --F.3d--, 2010 WL 3440867 (C.A.4 (Md.)) held that the Ravens and the NFL did not establish fair use of the Flying B logo in the highlight films sold by the NFL and the highlight film played during the Ravens’ home football games.  The Court analyzed the four statutory factors of fair use as listed in 17 U.S.C.§ 107, which are:  (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  Although the Court considered all four factors, it primarily analyzed the first factor, purpose and character of the use, and defendants’ alleged defense of historical use of the logo.  The Court stated:    

There is no transformative purpose behind the depiction of the Flying B logo in the highlight films.  The use of the logo in the films serves the same purpose that it did when defendants first infringed Bouchat's copyrighted Shield logo design: the Flying B logo identifies the football player wearing it with the Baltimore Ravens.  The simple act of filming the game in which the copyrighted work was displayed did not add something new to the logo.  It did not alter the logo with new expression, meaning or message.  The films capture the logo as it originally appeared, and the logo remains a symbol identifying the Ravens.  While the films no doubt add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team.  The logo continues to fulfill that purpose whenever a highlight film is shown.

Id. at 4.

Simply filming football games that include the copyrighted logo does not transform the purpose behind the logo's use into a historical one.  Defendants point to the dramatic editing, music, and narration in the highlight films in an attempt to show a transformative use for the logo.  But none of these effects transform the purpose behind the display of the logo.  The narrator in the films never comments on the controversy surrounding the use of the Flying B logo. Nor are the films a documentary on the history of the Ravens logo.  Instead, the films simply capture highlights of three Ravens seasons and necessarily portray the Flying B logo as it was actually used to identify the Ravens team.

Id. 

The Court held that the “Ravens and the NFL originally violated Bouchat's copyright by using his logo as the Ravens logo. Highlight films that come along later and depict that same use, without transformation, cannot stand as a fair use.”  Id. at 8.

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A Federal Court Analyzes Whether One Manuscript Allegedly Violates the Copyright Protection of Another

A Florida Federal Court recently discussed the standard for determining if one manuscript violates the copyright of another. Brian Dodd v. Chris James Woods, Film Ranch International, Inc., 2010 WL 2367140 (M.D.Fla. 2010).

    The Underlying Facts

The plaintiff in that case, Brian Dodd (“Dodd”), alleged several causes of action which “arose after Defendant Chris Woods allegedly stole Dodd's manuscript entitled “Anonymity” and gave it to Defendant Film Ranch International, who allegedly used it in producing a film entitled “Brainjacked.” Id. at 1.

The Legal Standard for Alleging Copyright Infringement

The Court explained that “[t]o establish a prima facie case of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). ‘To satisfy Feist' s first prong, a plaintiff must prove that the work ... is original and that the plaintiff complied with applicable statutory formalities.’ Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir.1996) (citations omitted). A plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are ‘substantially similar.’ Oravec v. Sunny Isles Luxury Ventures, L. C., 527 F.3d 1218, 1223 (11th Cir.2008) … .If the plaintiff cannot demonstrate access, he still may establish copying by showing that the works are “strikingly similar .” Id. (citing Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir.2007)).

“Substantial similarity exists “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. (quoting Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982)). In particular, a copyright plaintiff “must establish specifically that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected elements.”   Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.2000). ‘Thus, in an action for infringement, it must be determined both whether the similarities between the works are substantial from the point of view of the lay [observer] and whether those similarities involve copyrightable material.’ Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1248 (11th Cir.1999).” Id. at 3.

The Court Determines That the Complaint Fails to State a Claim for Copyright Ownership Because it Failed to Allege Facts that the Manuscript was Substantially Similar

The Court held that the complaint failed to state a claim for copyright ownership because “[i]n a copyright action, the similarity between two works must concern the expression of ideas, not the ideas themselves. Oravec, 527 F.3d at 1224. Here, Dodd has only generally alleged that the two works are similar in concept and method, and that a character from Brainjacked has the same name as the main character from Anonymity. As an initial matter, copyright protection does not extend to Dodd's ideas, concepts or methods. See 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, ... method of operation, concept, ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). Therefore, aside from a character from each work sharing a name, (which by itself could not amount to substantial similarity), Dodd has failed to allege any other specific aspects of Anonymity and Brainjacked that are similar.” Id. at 4-5

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Contest Submission Concerns

Intellectual Property: With the success of shows like American Idol and other reality-TV-based talent competitions, contests encouraging writers, singers, songwriters and filmmakers to submit their ideas and material in order to be “discovered” have become more prevalent. While certainly, these contests have proven to be beneficial to more than a few individuals, they are not without their obstacles.

Those interested in entering any such contest, or otherwise submitting material pursuant to a request, should be cautious as to what rights they are ceding with that submission. Quite often, the terms of the contest could grant the contest-host all of the intellectual property rights relating to the submission. In addition to preventing the original artist from continuing to utilize or promote his work, it could also mean that the company hosting the contest could pursue the project without the submitter’s consent or participation.

For example, assume that there is a film festival that is hosting a contest for unknown, independent filmmakers to win an opportunity to have their films featured at the festival. More often than not, when entering such a contest, the artist submits his materials with a signed application. This application may very well have terms and conditions that are associated with it, and to which he may unknowingly agree by just signing the application. Even when there is not a written application, there are often terms and conditions that are deemed to be “accepted” when the applicant submits his materials. These contractual terms (even though they may not “look like” a contract) could include an assignment of intellectual property to the contest host. For example, such terms often say that the submitter has no right to have the materials returned to him, and that he may grant the host company all right to the work to exploit it as it wishes. In such event, the submitter may be deemed to have abandoned his rights, and the work will no longer remain his own. Importantly, the assignment may be deemed to have been made simply by submitting the work, and the rights may be granted even if the submitter does not win the contest.

This is why it is critical to have an attorney review any and all documents before signing them. It is also important to maintain copies of any document signed. Why? Because at a later time the submitter may want to pursue the original work, and he may not know whether or not he gave up his rights. If he had kept a copy of the agreement, he could at least have an attorney review it at a future time to determine the status of his rights.

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Music Licenses for Film Productions

Intellectual Property: Music Licensing: Similar to the copyright that a filmmaker may have in his work, composers and artists performing music also have copyrights in their works. Accordingly, a filmmaker cannot generally take a commercial CD that he has purchased and utilize songs as the film’s score. Rather, permission and/or licenses need to be provided for the music.

It is likely that a filmmaker will need to enter into both (1) a master use and (2) a synchronization license for each of the musical pieces that he utilizes in the production. A master use license is one which grants the licensee the right to use a specific recording in a production. A synchronization license (also referred to as a “synch license”) grants the right to use a song in timed relation to a visual work (e.g., film or television production). Accordingly, musical compositions used as background scores for film and television require a synchronization license (and generally, a corresponding synch fee). The essential difference is that the synchronization license attaches to the underlying composition, whereas the master use license relates to the actual recording. In other words, if the filmmaker simply wants a song in the background and does not care if it is a particular artist’s version of that song, he may be able to have another artist (perhaps an unknown) perform a cover of that song.

Use of the song itself requires a synchronization license. It is the use of the actual sound recording by a specific artist that requires a master use license. Assuming that the filmmaker hires an unknown artist to perform the song, the filmmaker may be able to obtain the master use rights from the unknown artist far more cheaply than obtaining the rights to a popular artist’s master recording.

“Music clearance” is often referenced as the process of determining what permission is needed to make use of a piece of music. This is normally done by ascertaining the owner(s) of the music; contacting the owner(s); negotiating an appropriate license; and entering into a written agreement regarding the same. As discussed, permission (in this case in the form of music clearance) is required if the filmmaker plans to use music for any of the exclusive rights granted to a copyright owner (i.e. copy, distribute, make derivative work, perform or display). Incorporating music into a production will arguably fall into all of these categories.

Music clearances are generally negotiated by an attorney. The license fee that is requested of the copyright owner can range quite a bit and depending on various factors (i.e., owner(s), popularity of the work or the specific use being requested). In certain cases, it can be quite costly. Nevertheless, it is extremely important to obtain these rights, preferably sooner rather than later. In the event that rights to certain music cannot be obtained, it is generally easier to switch out the music earlier in the production process rather than after the fact.

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