Reeled In: Pre-existing Music in Narrative Film

Jonathan Godsall

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351970440
• Edition: 1
• Topic: Media & Performing Arts
• Subtopic: Music

How and why is pre-existing music used in films? What effects can its use have on films and their audiences? And what lasting impact can appropriation have on the music? Reeled In is a comprehensive exploration of these questions, considering the cinematic quotation of Beethoven symphonies, Beatles songs, and Herrmann scores alike in films ranging from the early sound era to the present day, and in every role from 'main title theme' to 'music playing in bar'. Incorporating a discussion of such factors as copyright and commerce alongside examination of texts and their effects, this broad study is a significant contribution to the scholarship on music in screen media, demonstrating that pre-existing music possesses unique attributes that can affect both how filmmakers construct their works and how audiences receive them, to an extent regardless of the music's style, genre, and so on. This book also situates the reception of music by film, and by audiences experiencing that music through film, as significant processes within present-day culture, while more generally providing an illuminating case study of the kinds of borrowings, adaptations, and reinventions that characterize much of today's art and entertainment.

1 Production contexts and considerations

[U]nfortunately the one [song] we don’t have in the film is the one the book starts out with: ‘Sympathy for the Devil’. The real connoisseurs of this book are going to say, ‘What? No Rolling Stones?’ But we couldn’t afford it.

Terry Gilliam (in Morgan n.d.) here comments on his 1998 film adaptation of Hunter S. Thompson’s Fear and Loathing in Las Vegas, and the prohibitive cost that prevented the film’s use of the Rolling Stones’ ‘Sympathy for the Devil’. This brief remark offers an intriguing insight into one among many instances of ‘real-world’ considerations affecting a film’s use of pre-existing music. Behind any such use can lie not just a filmmaker’s artistic intent in selecting music and plotting its interactions with other elements of their film, but also a host of other factors that may shape those choices, many at least somewhat outside of their control.¹ In the case of Fear and Loathing, the issue was financial, and specifically the cost of licensing a song under copyright. Other such factors include the perceived commercial appeal of the music, changing technologies, and critical attitudes towards the practice. These contextual issues are the concern of this chapter. The intention is not to provide a comprehensive history of production circumstances affecting uses of pre-existing music in narrative film, but rather to discuss a few examples (prominent and important ones, certainly) of issues that have coloured and directed such uses, and that must therefore be acknowledged if that practice is to be fully understood and appreciated.

Rights and licensing

Using pre-existing music often means using another creator’s copyrighted work. Permission for this needs to be sought from the relevant parties; the music needs to be licensed (‘cleared’). Two types of licence are of key importance:

1. 1 A synchronization licence gives a filmmaker the right to synchronize a musical composition – as it exists separately from any specific rendition – to a visual element. It is obtained from the owner(s) of the publishing rights to that composition.
2. 2 A master licence gives a filmmaker the right to use a specific audio recording together with a visual. It is obtained from the owner(s) of that recording’s master tape, hence the term.

In many cases, both licences would be required. In others, only one would be needed. For some uses, neither licence would be necessary.

A hypothetical example for illustration: in order to autosonically quote the Rolling Stones’ original 1968 recording of their own song ‘Sympathy for the Devil’ (from the album Beggars Banquet) in a film, a filmmaker today would require both synchronization and master licences, as both the composition and recording are protected by copyright. In this case, both copyrights are owned by the same organization – ABKCO Music & Records, Inc. – but must nonetheless be considered separate. If the filmmaker wished instead to use the 1994 cover version of ‘Sympathy for the Devil’ by Guns N’ Roses, originally recorded for the film Interview with the Vampire: The Vampire Chronicles (dir. Neil Jordan, 1994), they would be faced with a different situation. As this recording is also under copyright, both types of licence would still be required. However, while the synchronization licence would be the same as in the previous case, obtained from ABKCO, the master licence for this version would be obtained from Geffen Records, who own the copyright to the Guns N’ Roses recording.

Another option would be to commission a brand-new recording of ‘Sympathy for the Devil’ especially for the film (to allosonically quote the song, in other words), in which case only the synchronization licence – the licence to use the composition itself – would be needed. Similarly, if a filmmaker wanted to use a recent commercial recording of a composition not itself protected by copyright – one in the public domain, such as a Beethoven symphony, for example – permission would only be required from the owner of that recording. And, if a new recording of that Beethoven symphony was produced, or if a filmmaker chose to use an existing public domain recording of the same piece, neither licence would be needed. Equally, though, the use of some pieces will actually necessitate multiple synchronization and/or master licences. Any samples from copyrighted works that would be heard in a film through autosonic use of a ‘host’ hip-hop track, for instance, would have to be individually cleared alongside that sampling work. A number of entries in the credits for N.W.A biopic Straight Outta Compton (dir. F. Gary Gray, 2015) thus read like this two-tiered example:

‘Express Yourself’

Written by Charles W. Wright

Performed by N.W.A

Courtesy of Priority Records / Ruthless Records

Under license from Universal Music Enterprises

Contains a sample of ‘Express Yourself’

Performed by Charles Wright & the Watts 103rd Street Rhythm Band

Courtesy of Warner Bros. Records Inc.

By arrangement with Warner Music Group Film & TV Licensing

Generally speaking, there are no exceptions to the need to license copyrighted work. International copyright agreements, such as the Berne Convention for the Protection of Literary and Artistic Works (1886, rev. 1979), have today been signed by most of the world’s states (176 as of March 2018), meaning that basic legal tenets are effectively universal, and that signatory states must recognize the copyright of works from outside of their own jurisdictions.² As each country writes and enforces its own copyright laws, though, filmmakers in some locations might have recourse to certain principles in defence of copyright violation claims. In the United States, for instance, case law established in rulings over sampling in hip-hop music currently suggests that the de minimis principle might apply to allosonic quotations short enough to be considered trifling matters (de minimis non curat lex translating as ‘the law does not concern itself with trifles’), though not to autosonic quotations of any kind.³ Filmmakers quoting music for such purposes as parody or criticism could also be protected by the ‘fair use’ doctrine.⁴ However, these principles could indeed only be drawn upon as defences, leaving licensing as the only reliable option for filmmakers wishing to avoid legal action.

Exceptional cases have arisen historically whereby filmmakers have exploited particular circumstances to their advantage. Twentieth Century Fox’s The Iron Curtain (dir. William A. Wellman, 1948), for instance, features music by Soviet composers Dmitri Shostakovich, Sergei Prokofiev, Aram Khachaturian, and Nikolai Myaskovsky, all conducted by studio music director Alfred Newman. Though the film credited the composers, no permission was sought, nor remuneration given for the music’s use, because at that time neither the US nor the USSR were signatories of any international copyright convention, and so the music was considered to be in the public domain in the US. In this instance, the composers attempted to stop the distribution of the film by claiming that their moral rights – their rights to object to a use ‘which would be prejudicial to [their] honor or reputation’ (Berne Convention 1886, rev. 1979, art.6bis) – had been violated. Specifically, they argued that use of their music in a film of anti-Soviet subject matter ‘indicated their approval, endorsement and participation thereby casting upon them the false imputation of being disloyal to their country’. The Court of New York rejected the claim, however, because the common law system of the US did not (and still does not) recognize moral rights to the same extent as do civil law countries such as France, where distribution of the film was stopped by a later hearing on the same grounds (Bertrand 2011).⁵

Nonetheless, the basic copyright situation and licensing process described here will now be recognized worldwide (the US and Russia signed up to the Berne Convention in 1989 and 1995 respectively, while other makeweight international agreements had also been signed by the two states in prior decades).⁶ For the purposes of a scholarly overview (and not a legally authoritative guide), they can also be assumed to have been broadly in place throughout sound-film history. Both the concept of copyright and the beginnings of its international standardization predate the coming of sound, and so exceptional cases such as that of The Iron Curtain are precisely that: exceptional. The continuing discussion of rights and licensing below will rely mostly on examples from modern US productions, simply because of the relative ease of finding such examples (though ‘relative’ is certainly a valid qualifier, as the commercially sensitive details of licensing agreements are not often made public).

From the side of a film’s production, a music supervisor or someone with even broader responsibilities might handle the licensing process, though many productions credit one or more persons for roles such as ‘music legal services’ or ‘music clearance executive’.⁷ The process is, by all accounts, complex. Even identifying the relevant rights holders to contact might not be straightforward. Publishing and master rights are in some cases owned by the same person or organization, with a resultant single point of contact, as with the Rolling Stones’ original version of ‘Sympathy’. Many musical compositions do not even have a single publisher, though, but rather two or more co-publishers, all of whom would have to give their permission for the composition to be used in a film. Rights can be held by the composer(s) or performing artist(s) themselves, but when this is not the case, those creators might nonetheless also have a say in licensing decisions if this was agreed in their contract(s) with their publisher(s) and record label.⁸

The key factor to consider in regard to synchronization and master licences, however, is that they have economic value. This is partly why the circumstances of rights ownership vary from case to case, as parties in different circumstances have weighed up the immediate outlay or income of buying or selling copyrights against the potential for long-term benefit through rights exploitation. Economic value is the main reason for the complexity of the licensing process, because there are no set rates for licensing. It is also not simply the case that a hit song will be valued higher than an obscure B-side. The music’s cultural prominence will generally be one factor in the calculation of a fee, but, as music supervisor Brooke Wentz suggests, ‘the same song for one production could be free, and for another production $1,000,000’ (2007, p. 43).

How is music valued? Licensors’ decisions over how much to charge for a licence – and over whether to grant one at all, which they are not obliged to do – are based on a number of concerns. Basic factors include the geographical territories, media formats, and length of time for which the filmmaker wishes to license the music. One complication to consider here is that any upfront fee can be supplemented or supplanted by remuneration due at a later date: in respect of territories, for instance, limited coverage could be agreed initially (‘domestic release only’, say), with extensions taken up in the future if necessary. A ‘step deal’ could also be negotiated at the outset, with payments then due once a film has, for example, passed certain box-office milestones. To feature copyrighted music on a soundtrack release, incidentally, requires separate licensing. There are further complications here, in that a record company rather than a film company will in most cases be responsible for compiling and distributing a film’s soundtrack release. The two companies would inevitably be working in partnership, though, and might even be part of the same umbrella organization (a situation considered further below). The licensing negotiations for the soundtrack release might thus take place alongside those for the film, effectively adding further variables into the same process. Licensing for an audio-only release is much the same as for an audiovisual one, albeit with important differences regarding publishing rights: the rights holder here is obliged to grant a mechanical licence, with royalties relating to units produced then payable by the licensee at a rate that is set (by statute in the US, for example) rather than negotiable.

With licensing for film use specifically, the subject, content, or perceived quality of a film, as well as the identity and budget of the filmmaker, can more subjectively affect a rights holder’s judgement. Music supervisor Chris Douridas (in Rona 2012 [2000], p. 264) comments generally that ‘[a] great script can change a lot of people’s minds and help you tremendously in the negotiation process. If you’re working on a crappy film, nobody wants to be a part of it unless you pay full price.’ One specific example of fee flexibility comes from Zach Braff (in IGN Music 2007), who recalls the process of licensing songs by the likes of Coldplay, Nick Drake, and Simon & Garfunkel for his low-budget film Garden State (2004):

The sort of money that was originally quoted could have funded a few small independent pictures … I’m just thankful that after I showed them the sequences in which their songs were used, the artists or their estates were generous enough to work within our budgets.

Many rights holders would, in the end, rather make some money from their property than none at all.

Filmmakers can also offer rights holders exposure of their property to new audiences, effectively meeting the perceived value of a licence nonmonetarily. With growing numbers of filmmakers incorporating pre-existing music into their work over the past half century, rights holders have increasingly recognized the filmic avenue (and the avenues of other screen media) as a potentially lucrative adjunct to their traditional (and, increasingly, failing) business strategies, in promotional as well as direct financial terms. Indeed, while Jeff Smith (1998, p. 228) reported two decades ago that ‘the costs of using a particular recording over a film’s opening credits is now five to ten times higher than what it was five to ten years ago’ (that is, in the late 1980s and early 1990s), licensing fees have since dropped, generally speaking. Publishers and record labels now seek placements for their music more actively, rather than waiting for filmmakers to approach them. As music supervisor Michael Perlmutter puts it, ‘[t]here is [now] a great desire to have songs used as opposed to being protective of them’ (in Bethune 2011). And fellow supervisor Ron Proulx’s comments (in Bethune 2010) illustrate that this desire cannot be tied solely to direct fee income:

There is an endless supply of music now. It is so easy to find music it is ridiculous. So the fees have gone through the floor … People are much more aware, producers are...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• List of figures and tables
• Acknowledgements
• Introduction
• 1 Production contexts and considerations
• 2 Intention and interpretation
• 3 Functions of musical reference
• 4 Post-existing music
• Conclusion
• Filmography
• Index