When licensing a recording featuring a (known or unknown) vocal artist, there is an implied endorsement by that artist of your brand or product. Though this is not considered a legal partnership, it is a relationship that must be finessed. (A true artist-brand partnership is, for example, when an artist appears in a commercial spot, in-store concert, voice-over, or print ads, etc.) Beyond the license that the label and publishers will issue, you cannot license the chosen track without the lead singer’s direct permission. This issue of brand endorsement does not exist in music licensing for TV and/or film content. While it is true that most artists will have a say in licensing opportunities for TV/film, the question of direct permission is germane only to advertising uses. Beginning with the first air date and working backwards in order to have all rights secured on time, it’s critical to hire a company that knows all the moving parts to the complex issues of music licensing for commercials.
Lead Singer’s/Principal Vocalist’s Permissions
In addition to negotiating publishing and master rights, the brand/producer must secure the direct written permission of the solo vocalist or vocalists - (“principle vocalist” as defined by the SAG-AFTRA Commercial Contract). Keep in mind that a vocal performance is considered anything that comes out of the artist's mouth: singing, whistling, screaming, rapping, talking, etc. It should be noted that a recording can have more than one lead vocalist. Your Music Supervisor will need to review the final edit of your spots soundtrack to determine if it includes more than one lead vocal. What defines this position is when an artist takes a solo line distinguish from any back up singers, and also by how singers are designated on the original union session contract, where applicable. Be aware that obtaining direct permission from the solo vocalist is required by International law and is unique to each country that your spot will be exhibited in, regardless of any union affiliation of the artist or whether your production is under union jurisdiction or not. It’s important to ask these three questions when this issue comes up: 1) When was the recording made? 2) Where was the recording made? and 3) Was it made under any label union contract?
Some producers feel it’s OK to forgo securing this permission if the recording was made outside of the US, or if it wasn’t made under any union contract. Since each country has its own specific laws regarding using a person’s vocal performance in an advertisement, it is critical that this permission is obtained – just to be safe. This applies to very well known artists and unknown artists – it makes no difference under the laws of the land. It becomes especially important since a producer cannot always know from the outset of a campaign how wide the broadcast reach will be, especially before all the media buys are finalized. Though it is possible to geo-block your ad on the Internet, for example, this is not always in the brands control or and the media buyer's control. A campaign media buy can start off small and then grow to far more territories then originally planned. Usually this happens when the brand is so happy with how their spot came out, that they'll want to exploit it with a wider media buy.
Where Do I Start?
Start with whomever you are dealing with at the Artist’s label for the master recording rights – they should be able to guide you to an agent, manager or attorney that handles these matters for the artist. You want the person who is closest to the Artist, usually their manager. Getting to the right person can take some time and hunting down the right contact should be done simultaneously with pursuing the synch and master rights. In fact, many times, getting this permission will take the more time than any other the entire licensing process. If the artist is deceased, permission must be granted by the artist’s estate.
It’s important to present your campaigns creative elements to the Artist’s rep in the most complete and comprehensive way, either by submitting a video cut of the spot, or if that’s not yet available, detailed storyboards. Having a rough edit or even a final edit of the spot is best. This is what the Artist will use to make the decision regard granting permission and what kind of fee they will demand. Surprisingly many well-known artist are fine with union scale, others will ask for astronomical fees. Also, to avoid timeline delays, always present the project all at once, never in piecemeal. Artist’s managers have a small window of opportunity with their clients and will not present material that is not complete.
Costs and Budgeting Lead Singer Fees
Permission for an ad use is usually not given for free – this is a negotiation, and a vocalist or their estate can ask for any amount over (SAG-AFTRA) union scale, regardless of the brands production or union status. If the vocalist accepts union scale, those “new use” fees are calculated by the scope of the media buy, media used, term and territories the video/spot will run in. Payment of vocal talent union fees are strictly regulated by the unions and must be paid on schedule to avoid substantial penalties. In the U.S. payment to singers must be made through a signatory payroll company to SAG-AFTRA.
Vocal talent fees can end up being more than what you might pay for the synch and master license combined, so it’s important to know what kind of fee the vocal artist will demand as soon as possible. This of course will make a dent in your over-all music licensing budget so it’s important to have this fee settled before agreeing to the publishing and master use license fees. The producer needs to juggle four elements of licensing a track in a commercial – each with a different price tag: publishing, recording, vocalists talent fees, and musician’s union fees, where applicable.
Back Up Singers
The first thing a producer must do is contact the appropriate union – SAG-AFTRA in the U.S. – and ask them to hunt down the original session contract/report. If there’s no contract or the original contract cannot be found, no fees will be due; though the record labels sometimes try to insist on a payment of some kind. If a session contract is found, the producer must work with a union signatory payroll company to determine what the total back-up singer costs will be based the specifics of the proposed use. The brand/producer should only pay singers whose vocal performances are included in the final edit of your commercial/spot – even if they are listed in the original session report.
No direct permission is needed for back up singers – called “group” singers as defined by SAG-AFTRA – however they do need to be paid, if the recording was made under a union contract. “New Use” and “Re-Use” fees are calculated by several factors indicated by the applicable union rules and regulations; number of singers making up a “group;” “sweetening” and “over-dubbing” indicated in the original recording session contract(s); and the media, term and territories the spot will be shown in – all calculated in thirteen (13) week increments of the overall braodcast term.
It is the job of the Music Supervisor to determine who’s voice made it to the final edit, (and working with a union rep), determine each singer’s category – “principal vocalist, “Group 1, 2, 3,” etc. - and who did what in terms of sweetening and over-dubs. Accumulating this information will determine the new-use/re-use fees. Once again, make sure you are not over-paying by determining who is actually singing on the part of the track in you used.
My Production Is Non-Union, Do I Have to Pay Union Talent Fees?
You will need to pay union vocal talent fees if, 1) The recording was made under a union contract and regardless of where the recording was made; and 2) The artist's label includes language in its master license that requires the licensee to adhere to union rules and regualtions, for the benefit of the artist(s). All thee major US record labels include a clause in their licenses essentially requiring the producer/brand to act "as if" they are union signatories for this one-off music use. A producer should also be aware that a non-union artist can join SAG-AFTRA after a particular music use, and be entitled to "new use" and "re-use" fees retroactively. If no session contract is found, their need not be any fees paid to the artist under union jurisdiction and rules. Regardless, direct permission to include the artist vocal performance in your spot, must still be granted.
When choosing a Music Supervisor for your commercial spot or campaign it is important to find a company that specializes in these unique aspects of music in advertising, one who speaks the language of the advertising world, and can pull each legal and creative element together, on time and within budget.
Michael Welsh is founder/CEO of Michael Welsh Productions, Inc. - and specializes in music licensing and supervision for advertising only. www.michaelwelshprods.com
For more information about Non-Union Advertising Production visit our website https://www.michaelwelshprods.com/
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