This past August 5th, I did something surprisingly fun: watched my high school friends Robert and Wendy’s 14 year-old son Ben lead his band Supercharge through an amazingly commercial thirty-minute set at the famed “Whisky A Go-Go” on the Sunset Strip in West Hollywood. What was originally a plan to catch up with old friends, turned out to be a musical orgy for my ears and eyes. Supercharge, is a Springfield, Missouri based rock band comprised of four boys, ages 12-14. They have already played north of 100 live shows, and are currently preparing to compete in the finals of the South Coast Battle of the Bands in San Juan Capistrano on October 9th. They are also playing the famed Cavern Club in Liverpool, England on October 22. These kids are good, real good, and I have no doubt they’ll be migrating to a radio dial near you soon.

Watching Supercharge reminded me how important it is for independent filmmakers to discover hot new bands for their feature film soundtracks, since licensing popular songs is often times pricier than the entire budget of the indie feature. Thus, today I’m going to give you tips on how to negotiate for the music to your film with new, unproven musical performers. We will also briefly cover how to license popular songs, although that tactic has more to do with having enough money to pay for the songs and less to do with your strategy.

Negotiate Prices Early On
One of the costliest mistakes any filmmaker can make is to not lock down a final price for the music early on. “Let me just put your music in my film and we’ll work out the details later” is an incredibly risky and abundantly stupid move, since the fate of your film’s distribution will rest in the hands of the music rights holder. Regardless of how great of friends you are with the musical talent, you need to know exactly how much their music is going to cost you. Besides, if your film flops, they will still want to see some money. However, if your film becomes a festival darling, the musical artists can hold your distribution hostage, until you pay the amount they desire. Lastly, in the event the musician/band grows popular before your film get distribution, you simply won’t be able to afford to keep their music in your film, unless you can wrangle a studio or investor to pay for their newly minted price. Thus, knowing your ceiling price is crucial to lock down early.

“Free” Is Not A Secure Option
In the event that a band wants to give you their music for free, don’t let them. “Free” means that if the band/performer becomes wildly popular, they can legally argue that you don’t have rights to their material because you didn’t pay for it. Thus, a better move would be to pay them up front, even a meager amount like $1, (actually write them a check for $1), and to give them a deferred payment upon the distribution of the film. Just know exactly that deferred fee will be.

Protect The Upside For The Musical Talent
Let’s be honest here. Any band, even a new one, isn’t going to get a warm fuzzy feeling over giving you their creativity for $1. Thus, should they chose to honor you by gracing your film with their music for less money than a pack of gum, you should honor them by lacing “performance-based incentives” into their contract. Meaning, they will see bonuses based on how well the film does. These bonuses are “in addition to,” and not “instead of” whatever fees are promised for the use of songs.

Negotiate Festival Rights Early
This applies to popular music from established artists. Film festival rights tend to be far cheaper (free in some cases) than the rights to a popular song in a widely distributed film. Thus, negotiate the “film festival rights,” and at the same time, negotiate the final price for the songs upon distribution.

Remember, it’s always cheaper to negotiate something when your film is an unknown commodity. Once your film gets into Cannes, Sundance, Berlin or Toronto, your price for the music upon distribution will multiply in cost, because your film will be seen as one that will rake in the money. Whether your film pays off your debt and buys you a house or not, the cost of the music in your film should never be based on an assumed perception of what is going to happen.

Never Bank On A Song Or Artist Making Your Film Work
While I certainly hope you get every piece of music you desire, you should never risk the validity of your film’s story on a song or artist. Doing so, will a) make all music costs extremely expensive (since the artist will know you need their music to make your film work) and b) your project will fall apart if they say “no.” Thus, your film should stand on its own two celluloid feet, regardless of what music is ultimately placed in the film.

Use The Student Film Angle Whenever Applicable
Simply put, student films get the best deals, because they come with the inherent assumption that nobody will ever actually see them. Thus, if you, or anyone on you above-the-line team (director, writer, producer etc.) is a current student, you should use the student discount for music, because you know you’ll be using it to rent your equipment.

Use Music Clearing Houses For Popular Music
Music clearinghouses have deep relationships with music publishers, and their ability to negotiate the price of a popular song is far greater than yours. Several factors go into the cost of putting a popular song into your film. These include, how much of the song you wish to use, if you need the original recording, and how many times you need to use the song in your film. Clearinghouses have such information on file for similar songs in countless films and television shows, so they will have a precedence to negotiate a good price for you.

Don’t Rely on “Fair Use” To Save You From Licensing Music
“Fair Use” is a gray area that is often times misunderstood by filmmakers. Just because you only need a piece of a song for your film, doesn’t entirely excuse you from having to buy the song. While in some cases your use of the song may be completely legal, that status doesn’t stop the millionaire musical icon from suing you for using their song without permission.

Even if you are in the right, the angry artist will still take you to court, which will cost a hell of a lot more than it would have to just pay for the licensing of the song. Furthermore, such an incident will arrest the distribution of your film, until the legal matter over the music is solved. Thus, before you hide behind the “fair use” shield, make sure you speak to an entertainment attorney with experience in music publishing.

That’s what I’ve got for you today. I hope each and every one of you has an amazing Labor Day Weekend, and of course, I thank you for lending me your eyes. See you next Tuesday!

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