Negotiating Television Music Licenses

by Jeffrey and Todd Brabec

With over 100 television companies in the United States and usually over 400 series, specials, and made-for-TV movies actually in production at any given time, the call from a television production company requesting the use of a song occurs over 100 times a day virtually 365 days every year.

It is a call that can take on many variations and consist of many twists. It is a call that everyone hopes for. It is a call that can produce hundreds of thousands of dollars in future income. It is a call that requires an immediate answer. And it is a call that you had better be ready to take.

With 4,000,000 viewers watching even the lowest-rated network series and over 100,000,000 tuned into the best, television can be the answer to a songwriter's prayer.

Negotiating the Television License for a Song. When the producer or its "music clearance" representative makes the call or sends the fax or email requesting the use of a song in a series episode, they will describe how the song will be used, detail the terms and request a fee quote.

Since home video has become an important ancillary market for television programming, negotiations (many times on an option basis) will take place for home use as well.

Since many television programs are eventually broadcast in media other than that on which they were initially aired (e.g., a series originally made for and broadcast on pay television being subsequently shown on basic cable or in the free over-the-air syndication market), a producer may also request option prices for a wide range of additional media such as free television, basic cable, the Internet, public broadcasting stations, as well as any number of variations and combinations of these.

The Importance of Confirmation Faxes, Emails or Letters. Since requests for songs are often made over the telephone, with the producer or its representative and the music publisher taking notes on the particulars of the conversation and agreement, it is vital to summarize the terms and send a written summary to the other party as soon as possible after the phone call.

By following such an approach, both parties will know if there is a misunderstanding, which is usually ample time to work out an agreement prior to a song's actually being put in an episode. If an episode has a short time fuse (e.g., a scene being shot that day or the next morning), the producer will normally fax or email the publisher a confirmation letter asking for a countersigned copy or corrections by return. As a matter of policy, it is always best to have a written request sent after the initial call is made.

At one time, these written confirmations were very short and simple (e.g., $2,000 to use "Title of Song" in "Title of Series" as a background instrumental for 2 minutes for a period of 5 years from the initial network broadcast of the episode). In this day of expanding markets and media, however, the telephone conversations are becoming more complicated, making written confirmations an absolute necessity.

For example, if you give a price for the use of a song in a network television series and option prices for home video, pay TV, cable TV, educational stations, Internet, foreign broadcast, airlines, out-of-context promotional uses, and foreign theaters, all commencing on different dates, both parties had better be sure that they understood the conversation.

It is also vital that if there is a mistake or a point that needs to be clarified in these confirmations, the clarification should be done by phone and in writing immediately. Nothing should be taken for granted.

If you find yourself thinking, "Well, that's not exactly what I meant but it's fairly close," or, "I'll fix the mistake later," you should correct the misunderstanding or clarify the choice of words at once. Doing so will save a lot of hard feelings and ill will in the future, to say nothing of preventing litigation because a so-called minor issue all of a sudden becomes a major one after the television program has been broadcast or used in another entertainment medium.

The Experience Factor. Because of the time pressures placed on producers, music supervisors and music clearance companies of most weekly television series, there does exist a preference to deal with companies or people who have experience in negotiating television synchronization agreements.

Since nothing is more frustrating than to be discussing a television license with someone who has no experience with the issues, or no real knowledge of the contractual status of a song in a catalog or is uncooperative, producers prefer to deal with companies and personnel who know the rules and are flexible and competent enough to quickly find a way to arrive at license terms that are fair and equitable to all parties concerned.

Having experience, understanding, and flexibility in the music licensing department, therefore, is an essential element in successfully placing songs in television programming, an element whose importance cannot be overemphasized.

© 2004 Jeff Brabec, Todd Brabec
This article is based on information contained in the new, revised paperback edition of the book "Music, Money, And Success: The Insider's Guide To Making Money In The Music Industry" written by Jeffrey Brabec and Todd Brabec (Published by Schirmer Trade Books/Music Sales). www.musicandmoney.com