This is a guest post by attorney and music publisher, Bob Donnelly. Bob is a 40-year music industry veteran. He is a partner in Modern Works Music Publishing. He is also a partner in the law firm of Lommen Abdo.
Allow me to dispel a common misconception…music publishers do not “pitch” music for synchs and covers…well actually they do…just not in the way you think that we do…although we do some of the time…confused?…please read on.
I first entered the music business as the publisher for John Phillip Sousa in the early 1900’s (…okay it was the early 1970’s…it just feels that long ago!) At that time music publishers still employed “song-pluggers.” These were people whose job it was to get songs from their catalogs “covered” by artists who were about to release a new record. As the lawyer for a company that managed many superstar artists (some of who didn’t compose all of their own music), I was besieged by these pitchmen who wanted one of our artists like Ted Nugent to record a song written by a songwriter affiliated with their company. If Ted or his producer or manager was interested a song would be put on “hold” (…meaning that the publisher would not allow another artist to record it until Nugent had made his final decision).
By the end of the 1970’s this process of pitching covers was nearly dead in the category of rock music since the era of the singer/songwriter was fully abloom. Rock artists, both then and now, rarely used songwriters who weren’t members of their existing band or creative team. For the record, please allow me to mention that there are some important exceptions to the general rule that I have just propounded here. Publishers still pitch music for covers for certain types of performers.Country artists are the single largest category. This also occurs in the pop music and hip hop music worlds (although it’s often just the most successful writers/producers being paired with the most successful artists).
What I’ve described so far is that part of the music publishing process we generally refer to as pitching “covers”. The emphasis on covers has devolved not only because they are harder to get but also because there they simply are not nearly as lucrative as they used to be. The primary source of music publishing income from cover recordings comes from so-called “mechanicals” which is the per-song payment due to the songwriter and publisher each time a song is sold in any medium. Since the year 2000, record sales have been dropping like a stone and digital download sales haven’t been able to offset these losses. As a result, mechanicals are now at record lows.
Recognizing that mechanical royalties are no longer a reliable source of their overall income, many songwriters now view so-called “synch” income as the new gold standard. The word “synch” is slang for “synchronization” which refers to the process when music is synchronized with video and other media for use in films, television shows, video games, toys, interactive, greeting cards, commercials and other uses.
Most uses in this category (like a Toyota advertisement on television) generally implicate two different copyright uses: (i) the synch license for the underlying composition and (ii) the master use license for the recording (which is often owned by the artist’s record label). Sometimes a licensee will obviate the need for a master license by paying an artist on a work-for-hire basis to record a new version of the desired composition. But most often the licensee will seek to acquire both a synch license and master use license and pay the exact same amount for each bundle of rights (…this is what publishers refer to as “MFN treatment”…which stands for “most favored nations”…or in simple English…that the amount paid for the synch rights to the song will be no less than the amount paid to master owner for the use of the recording).
Most songwriters (…and their managers/agents/lawyers and business managers) believe that music publishers “pitch” advertising agencies or film companies to use their compositions. In point of fact, (…most, but not all, of the time) standard operating procedure tends to be the exact reverse. If a music producer for an advertising agency or a music supervisor for a film or television show is looking for music they will usually contact music publishers. Sometimes this is done with a phone call between friends describing a particular need. Most often the music supervisors will send out what is generally referred to as a “creative brief”.
Here’s a creative brief that we just received. “In the spot we see a mom dealing with various obstacles at his kid’s birthday party (punch spills, dad drops a plate of hamburgers, kids paint the walls, etc.) Each time mom saves the day. The spot will be shot in “slo-mo.” We’re looking for something with a dreamy vibe to contrast the chaos of the spot – it could be anything genre-wise. It’s all about juxtaposition here. They like the idea of something a little melancholy. There’s a lot of VO (voice-overs) so instrumentals are great, but simple lyric options also work”. The music supervisor ends the brief by offering some well-known songs that captures the vibe of her requests. The reason that these particular example songs weren’t chosen for this spot in the first place usually stems from the fact that they tend to be overused…or…would cost considerably more than the amount budgeted for this particular use.
At this point the creative licensing team at Modern Works (…and every other publisher who has received a copy of this brief) will spring into action (…and I mean “spring” because the turnaround time on these requests is exasperatingly short…often less than 24 hours!) In addition to the songs which intuitively strike them as a good fit, the team members will run searches of their music catalogs where the database is not only sorted by genre (e.g. jazz/rock/country/etc)… by sub-genre (smooth jazz/punk rock/country-alt, etc.)…by key words (happy/dark/anthemic, etc.) and several other sub-categories which will enable the team to quickly review possible candidates for this spot.
The creative licensing team will confer and choose their best candidates (…rarely more than 3 for fear of burning out the music supervisors) and sometimes none (if there isn’t a near perfect song to propose). If the music supervisors express an interest the negotiations begin. This means that all of the rights-holders (i.e. other co-publishers and master owners (if appropriate) must all agree on a mutually acceptable fee and mutually acceptable terms (i.e. use/ term/territory/rights granted/MFN/credits/options/etc.). The synch fees can be a meager few hundred dollars for an indie documentary film or a few hundred thousand dollars for a Super Bowl commercial. Landing a valuable synch starts with having the right song …but there is rarely only one “perfect” song to the ears of the music supervisors and their clients. Consequently, it takes the right amount of contacts / hustle / research / instinct / negotiation and luck to find that your song is now playing while the a deep baritone voiceover expounds on the virtues of the new Depends leak-proof underwear.
During my 40 years as a music lawyer I’ve signed many artists to co-publishing deals with major music publishers. Part of their elevator speech is “We’ve got a floor filled with people in Hollywood who spend each day placing songs with blockbuster films and TV shows.” And they do but here’s a curious thing I’ve noticed…when a new artist drops their first album or single there are rarely any synchs. In fact, the only time synchs start to show up usually coincides with a significant spike in sales and/or radio airplay. The question you should ask yourself as a songwriter is… did that floor of people in Hollywood suddenly get better at their job of pitching this music several months after the release of your album? …or did music supervisors start requesting your tracks because you had started to climb the charts and to generate a real buzz?
Skeptical New Yorker (…I think that’s redundant!) that I am – I believe it’s usually the latter. Why is this important? Because most publishers generally receive a bonus of 5% to 25% for securing synchs (…meaning in addition to the percentage which the publisher is otherwise entitled to receive pursuant to the provisions of the contract). That’s why it’s important to add language to any publishing contract you sign that grants a bonus for synchs and covers only if they are pro-actively procured by the publisher (…I’m proud to say it’s standard operating procedure in all Modern Works deals). In other words, if a music supervisor contacts us and requests a synch license for a particular song in our catalog – Modern Works does not charge nor receive a bonus for that particular song placement.
Before I close, please allow me to state for the sake of clarity that publishers do try to convince music supervisors to use a particular track or the music catalogs of a particular artist. This is an important part of any relationship between a publisher and an ad agency or television show or any music buyer. And it’s necessary if the music publisher hopes to claim the bonus for proactively procured synchs. At Modern Works we do it in a number of different ways from phone conversations/to taking music supervisors to concerts/to performing showcases at advertising agencies/to doing email blasts of new album releases/etc. Notwithstanding (that’s a great legal “weasel word”) the above – the vast majority of our synch placements come about because of responses to creative briefs – not as a result of convincing a music supervisor to use a song she or he has never heard before for some unspecified use in the future. Still confused? It’s time to call your music publisher.