Rock and roll will never die

Some of the most iconic docs of our time are music docs. The Last Waltz pops up on many a 'top documentaries of all time' list, Ken Burns' Jazz series received much buzz and Emmy nods, Buena Vista Social Club spawned a global interest in Latin music and was nominated for an Oscar, and Gimme Shelter ranked number 12 on the ida's 2002 list of the best non-fiction films of all time. While music docs can be a dream come true to audiences, obtaining the rights necessary to make one can be a nightmare.
March 1, 2008

Some of the most iconic docs of our time are music docs. The Last Waltz pops up on many a ‘top documentaries of all time’ list, Ken Burns’ Jazz series received much buzz and Emmy nods, Buena Vista Social Club spawned a global interest in Latin music and was nominated for an Oscar, and Gimme Shelter ranked number 12 on the ida’s 2002 list of the best non-fiction films of all time. While music docs can be a dream come true to audiences, obtaining the rights necessary to make one can be a nightmare.

The most common problems are it’s too expensive, complicated or just plain impossible to obtain the rights to the music of well-known bands. First there’s the issue of figuring out who owns the songs and who to approach for rights. Once this is known, it often isn’t just an issue of paying the right people. There are levels of permission to get through before filmmakers even get the okay to pay.

While admitting defeat and moving on to cheaper or more accessible music might be an option with a feature film or a doc of another subject, it’s less tempting when the doc is focused on a specific artist whose music is key to the film. Movies have been made on bands without using the featured artists’ music, but to varying levels of success. It is notoriously difficult to license Nirvana’s music because Courtney Love – the owner of the music rights – is very selective about who can use their songs.

Both Nick Broomfield’s Kurt and Courtney and AJ Schnack’s Kurt Cobain About a Son tell the story of the Nirvana frontman without the use of his music. Kurt and Courtney is very much a critical look at Love. While perhaps it could have been strengthened by the odd Nirvana song, it didn’t seem remiss without it because of Broomfield’s stark filmmaking style.

About a Son, on the other hand, received much criticism for trying to document the emergence of Cobain as a songwriter without using any of the singer’s music. Other docs, such as Stephen Petricco’s Inside The Smiths, have also been forced to document their subjects without a note of the band’s music. Smiths follows bass player Andy Rourke and drummer Mike Joyce, who previously sued Johnny Marr and Morrissey – the other half of The Smiths’ songwriting team. While interviews with periphery characters are compelling, the lack of the band’s music arguably weakens the impact of the film.

‘If you’re in that position and you’re obsessed with doing something, you’ve got to pay for it,’ says Derek Power, who has been a music supervisor and producer on many films since the 1980s. He knows first-hand that it isn’t easy – or cheap – to get the rights to music that is integral to a music doc. He recently jumped over many hurdles executive producing Stewart Copeland’s Everyone Stares: The Police Inside Out.

‘I’ve been in the music business all my life, but there are times when it’s not just calling up EMI for a clearance,’ Power says of the many intricacies of clearing music rights for a doc. Among the permissions needed are synchronization rights (the right to synch a song with your images); mastering rights (when using a recording, as opposed to a live performance); and performance rights (when dealing with a live recording). There is also a publishing fee and a mechanical fee for each song used.

In Power’s experience working on Everyone Stares, one scene in particular made it so difficult to track down the rights owners that Power had to hire a private investigator in Germany. It was one of the funniest scenes in the film, and took place during The Police’s visit to a German television studio in 1979. As Power points out, none of the other bands in the scene were introduced on-screen, so he and his staff had to identify the songs in question (which were sung mostly in German), figure out who wrote them and, ultimately, from whom to obtain the rights.

‘That’s when we hired the detective who managed to find the person who did own the rights and from whom we did eventually, amazingly, obtain a license,’ says Power.

Tracking down mystery artists aside, the trail can be hard to follow even when it comes to well-known songs or multiple songs by a single artist. Particularly with older tracks that have changed ownership, or where record companies and music publishers have been bought out or merged with other companies. ‘There was always a chain, it was never, ‘Oh yeah, sure you can have it,” says Power. Still, it made it easier that Copeland is a member of the band on which the documentary is focused, and therefore had an in when trying to obtain the majority of the rights for The Police’s music. Since it is Copeland’s bandmate, Sting, who wrote the majority of the hits, there was an internal tolerance toward making a slightly more favorable deal for Copeland and his film. It would have been a very different experience if an unconnected filmmaker decided to pick up and make a doc on the band.

This was also Paul Rachman’s experience working on American Hardcore. Rachman grew up in the hardcore punk scene in the ’80s, so he had a lot of personal relationships that went back 25 years when he went to approach the subjects of his film for the right to use their music. ‘That helped a lot,’ says Rachman, ‘compounded with the fact that only one or two of the bands had any kind of major label or major publishing deals.’ Rachman used 89 songs throughout the film, yet only spent between $45,000 and $60,000 of the film’s $350,000 budget on music licensing. This all boils down to the faith the musicians involved had in the way he was handling the film, and their music.

All the bands granted the film free festival rights to begin with, and once American Hardcore was picked up by Sony Picture Classics at Sundance, Rachman was able to start paying them both publishing and master rights (which came in at under $1,000 per side, per song) and when the soundtrack deal came through he went back and paid the bands approximately the same amount again. ‘It was really a true Favored Nations deal,’ says Rachman. ‘No one got any more money than anyone else.’ This has a lot to do with the mindset of bands in the hardcore punk scenes he was documenting. ‘There’s a certain democracy or socialist attitude. Everyone gets the same, everyone’s happy, nobody’s better than anyone else,’ says Rachman of the bands, such as Minor Threat, Bad Brains and Black Flag, that are featured in his film. ‘That’s a very important trait in the personalities in the film and it really transcends to our dealings with licensing the music.’

Metal: A Headbanger’s Journey is another example of a film that demanded plenty of music but spent very little on licensing. Lisa Clapperton, the production coordinator on Metal, says the average song used in the film ran anywhere from nothing to $10,000, and less than 20% of the film’s budget was spent on music rights. It took a lot of negotiating and convincing rights holders that it was a low-budget movie and couldn’t afford the big price tags. It also helped that Rod Smallwood, Iron Maiden’s manager, got behind the film and wrote letters to other managers encouraging them to cooperate.

But these are rare circumstances for clever (or lucky) indies. Most producers of music documentaries can expect to spend at least 60% of their budget on licensing, and, according to Power, should be ready to set aside around $200,000 for music for a doc similar to his.

‘I can tell you as a basic parameter,’ says Power, ‘if you’ve heard the song before, you’re going to have problems with somebody.’ Sometimes problems can arise even if the song is unknown to the general public. Andrew Shapter, writer/director of Before the Music Dies - a doc that examines the current state of the music industry – had problems dealing with the licensing of a Calexico song. The licensee wanted $5,000 for its use, more than Shapter, an independent filmmaker, expected to spend. ‘As a filmmaker, you have to wonder. Calexico’s getting promoted, their music will be heard by people who haven’t been exposed to Calexico, so wouldn’t this be beneficial to Calexico and the filmmaker?’ posits Shapter. But for the person in the middle doing the licensing, it’s more complicated than simply what’s best for the band and the filmmaker.

No one likes a critic
All the barriers and hurdles in the way to getting music licenses make a filmmaker wonder, is it even possible to make a critical movie about music when you will need to get the permissions of the musicians and their labels – just to begin with – in order to use the music in question? Fair use is supposed to ensure that it can be done, but the application of fair use is so tenuous that you have to be careful. According to Stanford University’s analysis of copyright and fair use, so long as you are critiquing a copyrighted work, fair use principles will allow you to reproduce a portion of that work in order to help make your point. However, this typically can only be used in very specific cases. A fuller statement of fair use practices is available through the IDA.

It’s for this reason that a lot of programming now comes in the form of ‘commissioned’ or ‘official’ programs, because the only way to get them done is in cooperation with the musicians. ‘In many cases this skews and makes the presentation of this material more promotional than documentary,’ says Stuart Samuels, who is currently dealing with the estates of three of the biggest names in music – Janis Joplin, Jimi Hendrix and Jim Morrison – to make his new movie, 27.

Martin Scorsese’s latest music docs No Direction Home: Bob Dylan and Shine a Light are examples of commissions that follow and celebrate the featured artists. Programs airing on music stations are mostly celebrity driven and typically don’t delve very deep into the artists’ background. But getting permission to do something more in-depth from the bands or the artists’ estates is a hard ask. In Samuels’ experience, working on his film about the cultural climate in which Joplin, Hendrix and Morrison lived and died, he has to continually take his film back to the families and get their permissions to keep going. Ultimately he’s working at their whims. ‘They don’t need me, I need them,’ he says.

Samuels feels that it’s these barriers that have caused documentary filmmakers to move away from making programs that examine and question pop culture and more toward personal documentaries. ‘The Michael Moores, the Super Size Mes, these are documentaries you create out of your own head where you don’t need anybody’s permission to do very much,’ he says.

Despite the many barriers one must get past when it comes to music rights, important music documentaries will continue to be made. Though Power says no one is doing favors or giving material away for free because they believe in a particular movie, sometimes it does happen. Shapter found the estates of several of the older musicians he approached loved the message of Before the Music Dies and granted free usage and image rights. Too bad for filmmakers that’s not the general feeling in the music industry.

About The Author
Daniele Alcinii is a news reporter at realscreen, the leading international publisher of non-fiction film and television industry news and content. He joins the rs team with journalism experience following a stint out west with Sun Media in Edmonton's Capital Region, and communications work in Melbourne, Australia and Toronto. You can follow him on Twitter at @danielealcinii.