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14.01.2025
FASHION, CULTURE & ART, FILM, MEDIA & GAMING

When movie magic plays off-screen

Film music has a significant role in creating atmosphere and emotion on screen. Not only does it provide a backdrop to the plot and evoke emotions, but it also affects our imagination. Until recently, film producers, when thinking about creating music for a film, focused mainly on the authorial aspect of making music for a film and producing it. The songs used in the film supported the film narrative, and we could, at most, get them on a specially dedicated soundtrack outside the cinema. We are currently seeing a broader view of film producers when it comes to music and its role outside the film as well.

Nowadays, it is increasingly common for popular artists to perform music. Several versions of a single piece of music are created—one version is used in a film, another is used to promote the movie, and yet another functions in the market as a stand-alone entity. Thus, the magic of film music does not end with screening the film’s closing credits. It can also be heard outside the cinema: on the radio, in streaming services, and during live performances by artists.

New music trends

A new market practice has recently emerged for film producers, for whom the role of music is much broader than just film. They are no longer confined to licensing existing works or commissioning the creation of new ones to be used only in a film; they are going much further. It has become a new trend to engage popular performers, not just perform songs created for a film. Often, these artists write their lyrics, get involved in the production of the songs, and identify with the film. It is no longer just a matter of recording and incorporating a song that fits the narrative into the film. While the film continues to be the main engine that drives the entire song production process, it is about more than that. Increasingly, such a recording involves the production of a music video that promotes both the recording and the film simultaneously. In addition, when film producers promote a song in the media, they use fragments of the song to promote a film, for example, by using the recording in trailers or other promotional materials. Such a song lives its life; we hear it on the radio, playlists, streaming services, and while driving or shopping.

This raises new challenges for film producers. Contracts must appropriately address non-film uses of works. This includes contracts with the authors of the music and lyrics of such works, as well as with performers, music producers, and record producers.

What is the best way to approach this?

By introduction, it should be recalled that a composed and recorded work comprises many rights often held by many people. From the copyright perspective, rights arise in the work, namely its verbal and musical layers. In addition, related rights occur: 1) the performance rights of performers, e.g., vocalists and instrumentalists, and 2) the rights of the phonogram producer. Thus, in creating and producing a work, we are dealing with both the author, performer, and producer layers. All of this must be taken care of if a film producer wants full rights to use the song created with their participation. Verifying the entities entitled to grant rights to the producer is not always straightforward. Often, authors are represented by publishing companies and have agreements with collecting societies. The terms of reference of these entities also vary. It is not always sufficient to sign an agreement with ZAiKS. The same goes for performers. Today, music labels, labels, or managers represent most of them on the market. Concluding a contract with an authorised entity is crucial in order not to infringe on the rights of others.

Due to the multiplicity of rights and entities, the best market practice appears to be to conclude separate contracts for the creation of a verbal and musical work and the transfer of proprietary copyrights in such a work and separate contracts for related rights (artistic performances, rights of the phonogram producer). There can be many such configurations. For example, one person may create a work (they have proprietary copyrights in the work) and be a music producer (in which case they have artistic performance rights in the recording production). Sometimes, both the author of the work and the performer may be the same person – in which case, we are also dealing with both proprietary copyrights and performance rights. The situation can be even more complicated when more entities are on one side or the other.

What to include in contracts?

The correct acquisition of rights to a created work, a song performed by an artist, or the production of a recording requires that the fields of exploitation (i.e., the various ways of using the work, recording, or song) are appropriately adjusted in the contract. In addition, it is always advisable to clarify the specific uses in other contractual provisions so that the intention of the parties’ arrangements is reflected in the agreements concluded and does not raise any doubts for anyone. Appropriately addressing all potential uses of a work, be it the synchronisation of a musical work with a film, with the film’s promotional materials, public access to streaming services, marketing of sound carriers with such a work, public performance of a work at live concerts, or through synchronisation of a work with a music video or advertising materials, allows a film producer to use a musical work much more broadly than just in a film. The conclusion of distribution agreements by the producer allowing digital exploitation gives a separate life to the song, which functions independently in the market outside the film.

By combining film and musical works, film producers have a wide range of possibilities for using various excerpts of such musical works in the movie, in the film’s promotional material, or when organizing special events related to the film. Of course, if they properly acquire the relevant rights from the rights holders.

#artistic performance #copyright #film music #related rights #soundtrack

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