The Might of Rights

'People tell you different stories about how they got legal clearance for certain songs,' says Francois Verster, founder of Undercurrent Film and Television in Vlaeberg, South Africa. 'As far as I see, the law is not very clear and differs from...
June 1, 2001

‘People tell you different stories about how they got legal clearance for certain songs,’ says Francois Verster, founder of Undercurrent Film and Television in Vlaeberg, South Africa. ‘As far as I see, the law is not very clear and differs from country to country, territory to territory, and deal to deal. It’s a very complicated thing to get a complete grasp on.’ Considering Verster’s current project, A Lions Trail, which traces the sordid history of exploitation, crime and legal disputes that lie behind the famous song The Lion Sleeps Tonight, he is uniquely qualified to make such a statement.

According to Verster, in the 1930s a young Zulu boy named Solomon Linda wrote a song titled Mbube (The Lion). At the end of the decade, he recorded the song in South Africa where it became a hit. Ten years later, the song reached New York where it became popular in a re-recorded version titled Wimoweh. By 1961, the song got a pop makeover by songwriter George Weiss and again became a hit under the name The Lion Sleeps Tonight. Verster goes on to explain that the song has generated royalties of US$40 million, but Linda’s descendants’ total earnings on the tune are less than $150 annually.

For every version, performance and recording of the song Verster uses in his film, publishing, performing and recording rights must be cleared. Recalls Verster, ‘I did a 12-minute version of the film about two years ago and just to discover all the relevant rights took me weeks. It saves a lot of time and effort hiring someone who knows

the ropes. A professional music clearer knows how to structure deals that are appealing to the music rights holders and they get you the best deal they can. Like any agent, they have access to things you would struggle for.’

To clear the music rights for the 52-minute doc, Verster hired Roz Colls, director of music consultancy firm Music Matters International in London, U.K. Colls explains that publishing rights represent the rights held by the owner(s) and writer(s) of a music piece, and grant producers the right to synchronize a published song to their picture. If the source of a song is a commercial recording, recording rights must be cleared with the record company. Performers rights allow the performers on a recording (musicians, artists and singers) to grant the right for the use of their performance. (This is either done individually or through a representative body.) The right to include a song in a program and the right to broadcast the work also fall under this category. ‘Wherever you are in the world, those rights are required to be cleared,’ says Colls. ‘Usually, you deal with whoever owns the rights in the country where the documentary is being produced. They then grant a license for those rights for sale of the program internationally or to specified territories.’

Verster estimates music clearances for A Lions Trail will run about $94,000 – a figure he admits is low and depends on contracts in negotiation at press time. One deal Verster hopes to confirm involves securing a broadcaster that can clear the performing (broadcast) rights through a blanket agreement with a national body representing music copyright owners. In the U.K., this is the Mechanical Copyright Protection Society, which acts in alliance with the Performing Rights Society. Explains Roz, ‘The major broadcasters pay an annual lump sum to MCPS and PRS for performing and synchronization rights. In return, they’re able to use the works registered with the societies through the music publishers who are their members. The agreement permits them and the programs they commission to be used under those blanket agreements.’ Colls points out that the fees for such agreements tend to be pricey, so only the larger broadcasters can afford them. According to a PRS spokesperson, 1998 annual fees were £33 million for the BBC and £8 million for satellite and cable channels. Broadcasters in the U.S. can arrange similar agreements through organizations such as The American Society of Composers, Authors and Publishers (ASCAP); outlets in Canada deal with SOCAN.

Without a broadcaster’s blanket agreement, A Lions Trail has a budget of about $400,000. Says Verster, ‘If we can work with a public broadcaster that will give us access to their archives as well as blanket clearance on music publishing rights, it should come down to around $300,000. If we can also make a deal with one of the music publishers, it will probably come down to around $260,000.’ A feature-length version of the doc is also planned. Should the film play at festivals or win a theatrical release, additional rights must be cleared.

A broadcaster’s blanket agreement can save producers time and large sums of money, but it can also limit a program’s international distribution – a fact Johan Tuyaerts of TV De Wereld in Leuven, Belgium, learned the hard way. ‘Most of the programs we produce are fully commissioned by the larger public networks here in Belgium. That means we can use any type of music we like, because they pay an annual fee that covers all the music tracks used in their broadcasts.’ Tuyaerts continues, ‘We have an agreement that allows us to sell the programs abroad in other territories. In Europe, it’s still fine, because most of the networks offer to clear the music rights for their territory with their national music rights organization. But, in North America it’s very difficult to find networks that are willing to cover the music rights. They ask that music rights be fully covered by the producer. Because we don’t include music rights when we create the budgets, it’s too expensive.’

Tuyaerts’ 62-part doc go2! visits cultures around the world and investigates local sites, cuisine, and events. He describes it as a ‘dynamic, youth-oriented travel series’ and estimates 20 to 30 songs play in each 30-minute episode. ‘If you had to pay for each track separately, it would cost a fortune,’ says Tuyaerts, who priced the music rights last year when he got the attention of several North American distributors (including Great North Productions and Minds Eye International of Canada) at the Toronto Hot Docs festival. At that time, the music rights for 13 episodes were about $1.2 million. Without those rights, the budget was $60,000 per episode. ‘If we’d known the international potential of this series, we would have considered a rights-free soundtrack,’ says Tuyaerts. ‘With the new series we are producing, we’ve taken the lessons from the past and are making two soundtracks.’

Tuyaert’s new project Runways is a 12 x 30 minute travel series that allows viewers to discover major cities around the world through the experiences of Chris and Gilda – two hosts with dramatically different personalities and interests. It was commissioned by public broadcaster vrt in Belgium (which has ordered another 13 episodes for delivery in early 2002) and has sold to Travel Channel U.K., Spain’s Viajar, and Canale Viaggi in Italy, where a soundtrack similar to that of go2! – one that features popular tunes – will accompany the film. The North American version, which has garnered interest from Discovery’s Travel Channel in the U.S., will have a soundtrack made specifically for the series.

‘I prefer the popular music soundtrack over the rights-free soundtrack,’ says Tuyaerts. ‘It’s part of the series’ appeal. After each broadcast, we get lots of feedback. We’ve also had record companies ask to make CDs based on the series. The music is part of the format.’ This is another reason why creating music for go2! would be difficult – the music stands as an equal to the visual image. Each travelog is edited rhythmically, with cuts made to the picture based on the music. ‘The soundtrack adapted for international distribution is good,’ he says. ‘[But], if you watch travel series that are distributed in different territories, you will notice they all have right-free music. These are smart producers, they know they will pay huge fees for the rights on popular music.’

About The Author
Managing editor with realscreen publication, an international print and online magazine that covers the non-fiction film and television industries. Darah is an award-winning journalist who has spent over two decades covering a wide range of issues from real estate and urban development to immigration, politics and human rights, primarily with The Vancouver Sun. Prior to joining realscreen, she was editor of Stream Daily, realscreen's sister publication covering the dynamic global digital video industry. She also served a stint as a war reporter in Afghanistan for television and print, and was a national business blogger with Yahoo Canada.