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Music Licensing For TV 101

Palisa Kelley

You searched high and low and finally found the perfect song for that crucial scene in your television show or film. The hard part is over. Or is it? As an entertainment lawyer, I have helped countless clients secure licenses to use music in a wide array of projects. In most cases, the hard work really begins when you embark on the licensing process.

Here are three tips to help you get started.

♫ Know what you’re licensing ♬

If you want to use a particular recording of a song in a television show or in promotional materials for a television show, you will need permission to synchronize: (a) the master recording of the song; and (b) the music and lyrics of the song embodied in the master recording in timed relation with the visual images of your program. You also need to secure the right to (c) publicly perform the music and lyrics of the song  (usually from a performing rights society).

To show how this works, let’s consider I Will Always Love You, a song featured in Lifetime’s recent made-for-TV movie Whitney, about the late Whitney Houston.

Master Recording

Whitney Houston recorded I Will Always Love You in 1992. Whitney’s record label owns the sound recording of this song as it’s sung and interpreted by Houston.

Dolly Parton first recorded I Will Always Love You. Dolly’s record label owns the sound recording of this song as it’s sung and interpreted by Parton.

Anyone who wants to use Whitney’s version of the song must get permission from Whitney’s record label to use that particular master recording; anyone who wants to use Dolly’s version of the song must get permission from Dolly’s record label to use that label’s master recording.

Music Publishing

Dolly Parton also wrote I Will Always Love You. Parton (or her designee, such as a music publisher) controls the rights to the musical composition – i.e., the music and the lyrics of the song. This is often referred to as the music publishing rights.

Even though Whitney Houston’s record company owns the master recording of the song as performed by Whitney, the label had to get permission from Dolly’s music publisher for Whitney to record the music and the lyrics to the song. Likewise, even though Dolly Parton’s record company owns the master recording performed by Dolly, Dolly’s record company also had to seek permission from Dolly’s music publisher for Dolly to record the music and lyrics to the song.

Public Performance Rights

A public performance is the transmission or other communication of a work to the public. Obviously, if you’re producing a television show, you need to secure the right to publicly perform the music and lyrics from the owners of the publishing rights. Due to a quirk in the law, it is not necessary to secure a public performance right for a master recording embodied in a film or TV program in the United States.

Because TV networks and digital exhibitors, like Netflix or Amazon, are the parties that actually transmit a program that includes music and lyrics to the public, they are also the parties that typically take responsibility for securing public performance rights through deals with performing rights societies, e.g., ASCAP, BMI, SESAC. Whereas the production company, which produces the program for the network or digital exhibitor, will be responsible for securing (a.k.a. “clearing”) the music publishing and the master rights.

In many cases, the record label and the music publisher are either two separate, unrelated entities, or two separate entities owned by the same parent company. In either case, do not assume that if you obtain approval from a record label that you will also get approval from the music publisher, and vice versa. These companies have interests that may not always be aligned, and the response to your request may not always be the same.

Back to Whitney

The producers were unable to use the master recordings because Whitney’s estate exercised its approval right to prevent the label from licensing them. That’s why we didn’t hear Houston’s voice in the Lifetime movie. However, because Houston did not write her biggest hits and Houston’s estate does not control music publishing rights for I’ll Always Love You, I Wanna Dance With Somebody, etc., Lifetime was able to secure permission from the writers of those songs to use the music and lyrics in the movie, which enabled them to hire Deborah Cox to re-record the songs.

In the case of the Aaliyah biopic, reports indicate that Aaliyah’s estate exercised its approval right to deny Lifetime the right to use the master recordings and the music publishing for songs Aaliyah wrote. The Whitney Houston biopic fared better with social media critics than Lifetime’s Aaliyah biopic, in part, because audiences enjoyed listening to Whitney’s greatest hits.

Next: Requesting a License