Any time people featured in a film start singing a song, documentarians should open their wallets. The makers of THE PERFECT CANDIDATE (a documentary about Oliver North’s run for Senate) had to pay $3,000 to include a scene where a woman sang “God Bless America” at a campaign rally. And that’s nothing. AOL Time Warner, which owns the rights to “Happy Birthday,” charges $15,000-$20,000 for one verse of the song. Filmmakers who can’t afford to pay or risk legal conflicts end up cutting out scenes altogether, as Linda Goode Bryant did when the principal subject in FLAG WARS (a documentary about the clash in a gentrifying area between African Americans and newly arrived gays and lesbians) starting singing along with the radio.
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On Most Favored Nation Clause:
Sometimes rights owners require a “most favored nation clause” in the licensing agreements, which guarantees the rights owner the highest price the filmmaker can pay. In other words, if Capitol quotes the filmmaker $3,000 to use an old Johnny Mercer song, and the filmmaker also licenses a Looney Tunes clip from Warner Brothers for $5,000, then the filmmaker will automatically have to pay Capitol $5,000, too. As Jeff Tuchman describes it, “It’s like going to go the grocery store and pinching your pennies and using your coupons, and then the last thing you buy is a steak for $20, and then every soda and bag of M&Ms you bought suddenly costs $20.”
On the difficulties of getting Happy Birthday:
Nuyorican Dream used a fee of $500 per song Unfortunately, Summy-Birchard Music/AOL Time Warner was not happy to oblige by the clause, and as Chevigny recalls, was demanding something in the neighborhood of $2,000 to use ‘Happy Birthday.’ “Not only could I not afford it, I couldn’t do it because I had this most favored nations clause…I was bound by the ‘Happy Birthday’ people to clear the song, and I was bound by my contract with HBO to clear every piece of music—and then I was bound by my most favored nations clause… “It was up until the wire that the ‘Happy Birthday’ people wouldn’t agree to go as low as $500,” Chevigny said. “Mind you, this is a low budget, $150,000 documentary.” At this point, Chevigny’s lawyer advised her to tell Cinemax that Nuyorican Dream could not be broadcast because “Happy Birthday” had not been cleared. “There’s no way I’m doing that. I’m just going to risk the lawsuit,” Chevigny told her lawyer. “It’s not something you should do, but I felt I had to take that risk—to put the production in jeopardy in order to not ruin my relationship with the broadcaster.” Indeed, Chevigny had already told the broadcaster, Cinemax (which is parented by HBO—another Time Warner asset), that she had cleared all the music in the film. In reality, Chevigny had sent paperwork to each music entity and each had said they were willing to negotiate, but she did not have paperwork back yet. “You’re constantly, as an independent filmmaker, not having to lie, but having to promise things that you don’t have totally in order just to get the ball rolling. It’s the chicken and the egg thing,” Chevigny explains. Luckily, the situation with “Happy Birthday” did eventually fall into order for Chevigny. Around the time Nuyorican Dream was first broadcast, Summy-Birchard Music/Time Warner faxed Chevigny an agreement to work within her clearance structure. “They finally processed it and I wrote them a check for $500 and it was done. It all ended up okay, but it was definitely a nail biter.”
Other films having problems getting clearance:
Stay Free!: Were there any other inconvenient clearances you had to deal with?
Sewell: Well, we had to watch out for billboards and Frito-Lay trucks all the time. But I usually didn’t care, we would just shoot. The biggest danger with clearances is when they interfere with documenting real life. Something spontaneous like a cell phone ringing is different than a planned event. If filmmakers have to worry about these things, documentaries will cease to be documentaries! What happens when the girls go shopping and there’s music playing in the stores? We were lucky because in our movie the music wasn’t identifiable, but otherwise what are we supposed to do: walk up to the store manager and say, “Excuse me but can you turn off your radio?”
Steven Lambert comments on the first post:
I just finished working with a documentary video class a couple weeks back. When clearing rights for music or images came up the questions and discussion would go on forever. The students seemed to be exessively worried about publishers coming after them in their student films. I needed to remind them that they should be more worried about making a good movie. It’s amazing to me how that threat reaches so far. When Lawrence Lessig talks about how copyright laws can inhibit creativity, it never resonated so much untill talking with these students.