SYNCHRONIZATION LICENSES

By Bruce E. Colfin & Jeffrey E. Jacobson

 
Whereas a mechanical license permits a user to mechanically reproduce an underlying musical composition on a compact disc, prerecorded tape, phonorecord, or other audio only format, the synchronization license permits the accompaniment of a moving image with the underlying musical piece. Consequently, the "synch" license is required for videos, motion pictures, television, commercials, and other visual formats that are combined with musical works.
 
The synch license is generally a grant from the publisher or his/her licensor to the producer of the visual work which authorizes the utilization of the underlying musical composition. Similar to a mechanical license, any proceeds go to the benefit of the publisher and/or writer (i.e. the owner of the copyright in the underlying work). Licensing agencies such as the Harry Fox Agency and AMRA issue synchronization licenses on behalf of their affiliated publishers and give fee quotations for such synchonization.
 
The "synch" license itself does not permit the use of any specific recording of the particular musical composition. A separate recording or master use license is required for such a use or, in the alternative, a new recording of the work would have to be produced.
 
If a performance is captured live on a medium such as television, the first airing of that show containing that performance does not require a synch license (though it will require a "performance license"). Subsequent broadcasts of that same performance, however, would require the appropriate synchronization license.
 
Fees and advances for synch licenses vary greatly depending upon the prospective use (e.g. whether the song will be used as a title song of a movie or in a commercial), the prominence of use (background music or featured performance), the popularity of the song and/or the songwriter, the media in which the song is to be used (e.g. television, motion pictures or even a video arcade game), the budget of the potential licensee, and the amount of goods that are to be initially manufactured, as well as other factors. For motion picture use payment in full, from the producer to the licensor is the norm.
 
Furthermore, new technological uses have created new markets and the potential for greater earnings through synchronization. In addition, questions have arisen regarding such new technological uses as cable, pay per view, pay television, satellite rebroadcast, home video, interactive video, and the internet.
 
In the past, one of the most troublesome areas in synchronization license fee negotiations had been home video. In the mid 1980's when home video quickly became a mass consumer market, it was a relatively new phenomena and thus there were no real firmly established standards. Along those same lines, similar issues have arisen for existing media, as many agreements for previously licensed musical works were negotiated prior to the advent of the "video age." Therefore, many licenses granted were sometimes limited to the existing technology by reference as they sometimes failed to include language allowing broader use for newer media, thus posing a similar problem at the advent of internet technology.
 
Due to such limitations or failures, rights owners had to turn to the courts to determine whether an initial synch license, entered into many years ago, included the previously unanticipated release of the film or program on new medias such as home video, or the internet. A 1988 Circuit Court decision seems to indicate that such a license does not.
 
Faced with the possibility of litigation, users of licensed music must consider going back to the source of the original synch license for new rights or risk the consequences. For example, old agreements which provided for eight millimeter films for home use now probably need to acquire new home video synch licenses and/or internet use licenses.
 
It is now more common for contracts to include a catch-all phrase such as ". . . any and all media now known or hereafter invented when addressing to scope of the synch license" This phrase, or similar language, is used by attorneys and production companies to keep up with and anticipate technological developments. Thus, uses in such newer technologies as laser optical disc, compact disc video, or live audio and video streaming, can be accounted for even if not specifically anticipated when negotiating the original synch license.
 
(C) 1992, 1996, 2000-2005 Jacobson & COLFIN, P.C. THE FIRM

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