A guide to buying music for marketing procurement executives — Songs vs. Recordings

In the second of a series of articles looking at the challenges around the buying of music to ultimately enhance sales and profit, our guest writer, Richard Kirstein, Resilient Music, discusses the distinction between songs and recordings. Richard is Founding Partner of Reslient, which helps brands manage their music budgets and secure optimal deals with music suppliers in the procurement of music talent and rights.

resilientlogo_300dpi_RGBAs a consumer, when you buy an artist’s album,whether download, CD or even vinyl, you’re unlikely to be aware of the complex bundle of rights it contains. On CD inlays and vinyl sleeve notes, you might take note of the record label logo, but unless you’re an aficionado, you’ll have little interest in the “small print “credits. If you did read the credits, especially on Pop/R’n’B/Urban albums, you’d find a long lists of contributors including songwriters (each with their own music publisher), record producers, sound engineers, programmers, session musicians and guest artists – all of whom have to be paid in the making of the album. Some (but not all) also receive royalties from the sale of the album – and this also applies to the use of those same tracks when “synchronised” against moving images … and this is why marketing procurement executives need to take note!

Our first piece of jargon : “Synchronisation” (sometimes called “sync” or “synch”)

This is a right, protected in law, that music rights owners can grant to allow their work to be synchronised against moving images such as TV Programmes, Feature Films, Video Games, Commercials or any other form of audio-visual marketing communication.

So, you might (rationally) think: “I need a particular track on my brand’s commercial – I just need to buy a synchronisation licence. Is there a rate card?”

Sadly, the music industry is highly irrational – there’s no rate card (for commercially released tracks) and there’s no one place from which you buy a sync licence. At the very least you need two licences – sometimes more!

The division between songs and recordings

What do we mean when we discuss “songs” and “recordings?” Are we talking about the same thing?
No we are not!

Separate copyright exists in (i) songs and lyrics as opposed to (ii) the sound recording which might embody those songs/lyrics.

Songs

  • Songs and lyrics are created by songwriters, sometimes separate composers and lyricists, and are usually assigned to and controlled by music publishers. Music publishers license the “publishing rights.” The intellectual property (IP) they license can be referred to as “song,” “composition,” “musical work” or just “the publishing.”
  • Note that one song can be co-written by several songwriters, each with separate music publishers. The “writer splits” (i.e. division of interests) don’t have to be equal as they’re proportional to the creative input. It’s quite possible to have one song with three songwriters (each with a different music publisher) split on a 40/30/30 basis rather than equal 1/3rd share. Where there is an equal split, there’s often disagreement who is claiming 33.34% rather than 33.33%.

An extreme example of this is “Look At Me Now” by Chris Brown feat. Lil Wayne & Busta Rhymes which I once licensed for a high street fashion brand. The song has 7 songwriters, 7 music publishers and the total share didn’t add up to 100%!

It's here if you'd like to listen

Recordings

  • “Master” sound recordings are created by recording artists, sometimes with session musicians, and are usually assigned to and controlled by record labels. Record labels license the “master rights” (though not always the rights of session musicians – look out for more posts on this!). The IP they license can be referred to as “master,” “sound master,” “master recording” or “recording.”
  • Sometimes master recordings feature guest artists. Each week’s singles chart will show many Pop/R’n’B/Urban tracks by “Artist A feat. Artist B” where both artists have an exclusive recording agreement with a (different) record label. Mostly, the label for Artist A is able to grant sync licences for the entire recording (but not always).
  • Mostly, record labels are able to grant worldwide licences, which are of course essential for online usage -- unless you can geo-lock to exclude specific markets. However, in some cases, you may find that label A controls e.g. World ex USA while label B controls USA only.

Why is this relevant?

  • If you want to use an existing recording of a song, you need separate licences for both the publishing and the master rights.
  • This might involve multiple publishers (for co-written songs) AND one or more record labels (for main and featured artists and/or split territory rights).
  • Unless you have full consent and licences from all these rights owners, you cannot “synchronise” their music on your brand’s commercial or online video. To do otherwise would be deemed infringement of copyright, lead to expense legal claims and the likely injunction of the commercial or take down of the video. It’s not enough to try to gain a licence – you must actually secure the licence.

So in summary, songs and recordings are not the same and therefore it is essential to track down all interested parties involved in the ownership of both song and recording if you wish to use an existing recording of that song in any form of marketing communication for your brand.

If you plan to re-record a song, this raises another set of issues – if you’re interested, you can read an earlier post on the Resilient site here.

Look out for our next post where we’ll discuss the increasing importance of synchronisation licence fees to music rights owners and how this impacts on the procurement of music by brands and their agencies.

 

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