29 Synch Rights for Video and Music

We have already seen how various compulsory and voluntary licensing schemes govern the copyright for songs and sound recordings. However, none of those licenses apply to the use of copyrighted music when synchronized to video (such as in a movie, television show, video advertisement, etc.). The use of the word “synchronized” for this category misleadingly implies music aligned with specific moments in a film. However, so-called “synch rights” apply to any use of music that accompanies video, regardless of the extent to which the music is actually “synchronized” with that video.

Just as with other music copyright issues, we must keep in mind with respect to synch rights that there are still two separate music copyrights that a video maker must respect: the song copyright and the sound recording copyright. When a video producer wishes to use copyrighted music in a film, television show, or other video, she must license not only the song but the sound recording as well.

Works-for-hire. The “work-for-hire” concept frequently comes into play with music used for video. A “work-for-hire” is a musical composition made under the direction or employment of another person who has a contractual agreement with the songwriter to provide music in exchange for a commission, fee, or some other compensation. When a songwriter composes a work under a “work-for-hire” arrangement, which is frequently the case for film scores and soundtracks, advertising jingles, etc., the copyright to the resulting music is typically owned by the person (film producer, television producer, etc.) who is paying the songwriter for her services. Whether or not we consider a piece of music a “work-for-hire” depends on the specific contract between the songwriter and the person requesting the music. If there is no written contract, there may be other oral evidence or intent of the parties needed as evidence of the arrangement. 

If the music used in a video is a “work-for-hire,” then the video producer will not need to secure “synch rights” for that music as they already own the copyright to the music. However, if the video producer wishes to use music for which they do not own the copyright, and assuming it is not in the public domain, then the producer will have to procure “synch rights” to use the music in the video, and performance rights for each showing of the video (the synch rights and performance rights are typically secured in the same negotiation/contract).

Given the exponential growth of video in popular culture over the past 100 years, it will come as no surprise that synch rights and how they are managed constitute a fast growing aspect of the music industry. The niche market of synch-rights management software provides an example of the depth of this segment of the industry. One of the leading purveyors of this software platform, SynchTank, puts out a SynchBlog and weekly newsletter about the synch rights industry (www.synchtank.com/blog). In an age during which live performance of hit songs marks one of the few areas making significant money for artists (at least pre-Covid), synch rights represents a consistently high-paying and expanding potential revenue stream. Many musicians have found writing songs and incidental (background) music for video projects one of the more stable and lucrative markets for their musical talent.

The royalty-free and pre-licensed music market is another area where we see the potential of the synch rights market. Dozens of companies have set up digital libraries of high-quality background music, incidental music, musical cues and other musical elements from which a video producer could create a whole soundtrack without ever directly hiring a musician, all within a matter of minutes and at an affordable price with just a few clicks of a mouse. Needless to say, using royalty-free music does not create the same impact as having a soundtrack composed specifically for your video, but most video producers cannot afford the time, expense, or uncertainty of custom soundtracks. So, thousands of composers populate on-line libraries with their compositions of pre-licensed music. If you browse through such libraries on-line, I suspect you will be impressed with the overall quality of the music available to a video producer who just wants to pay $30 for a 3-minute cue to add an air of mystery to her first documentary film.

At the other end of the synch-rights spectrum, the songwriters and composers most in demand for their experience and track-record have the luxury (like in-demand actors) to only accept the jobs they think will give their music the best chance of being part of a hit movie with corresponding top-selling soundtrack. Since the 1940s, film sound tracks have been one of the most reliable top-earners among album sales, and they continue to sell in large numbers today. Recent soundtracks, such as those for Black Panther (2018) and A Star Is Born (2018), both among the best-selling albums of that year, show the continued strength of the soundtrack as a marketing category.

Unlike mechanical and performance royalties, unfettered negotiations between “willing sellers and willing buyers” (a phrase often used in the music industry to refer to an open negotiation) govern the value of synch licenses. Whether or not a music copyright holder determines to license her music for a video, and on what terms (including any fees), is up to the copyright holder. There are no statutory fees, or royalty boards, or compulsory licenses, or consent decrees, or performance rights organizations, or any of the other mechanisms we have discussed with respect to the other contexts for music licensing. Synch rights occupies its own world, one that operates entirely through open negotiations. Because of that, there is far less to explain about synch rights and far less to remember in terms of licensing and royalty structure.

But we can list a few observations about the structure of typical synch rights deals, understanding that these represent common patterns that evolved through the trial-and-error of many negotiations (and lawsuits when those negotiated contracts fail), not legal mandates:

• Synch rights typically involve a one-time, flat fee, even though the license is ongoing and encompasses both synchronization rights (the use of the music synchronized to a video production) and performance rights (the right to publicly show — perform —  the video in a commercial setting, such as in a movie theater). As we’ve discussed, in the United States, movie theaters do not pay performance royalties for music in films they show, but such performance rights are paid by theaters in most countries outside the U.S. So, the negotiation of total synch rights typically includes world-wide performance licensing. In Europe, movie theaters pay between 1% and 2% of net box-office receipts for performance rights to films shown in European theaters. So, even thought U.S. theaters do not pay performance royalties, film producers can still collect significant performance royalties from non-U.S. theaters.
• When a video producer uses pre-existing, copyrighted songs for their film (a practice sometimes referred to as “interpolation”), they will typically negotiate with the publisher of those songs for synch rights. The video producer will want to negotiate a single fee that will encompass all future uses of those songs in conjunction with the film (including marketing, trailers, soundtracks, video games, television spin-offs, etc.). However, the publisher will wish to limit the synch rights being licensed to only the use of the song in the film and performance rights associated with showing the film. The publisher will want to retain the rights to to receive any additional royalties that may come from a soundtrack release, additional marketing opportunities, etc. On the other hand, the publisher will want to negotiate for the music they represent to be included in any potential soundtrack or other opportunities, but often also with an additional fee.
• A film soundtrack, because it has been edited, mixed, and assembled, represents a separate, copyrightable work apart from the film itself. As a sound recording that also contains copyrighted songs, the various licensing and royalty structures that apply to sound recordings will also apply to the film soundtrack.  When it becomes a sound recording, the film soundtrack is no longer a synch right, but a sound recording and collection of copyrighted musical works. As noted above, film soundtracks can be extremely important revenue producers on their own.
• As with all open negotiations, the relative bargaining positions of the parties will determine the outcome. If a film producer wants to use a hit song by a leading pop artist in her film, she will likely be unsuccessful in getting full license to the use the song in subsequent marketing efforts, soundtracks, etc. However, if the song was written by a young songwriter just breaking into the business, an established film producer will likely be able to obtain full and ongoing synch rights for a relatively minimal one-time licensing fee.