Screenmancer Exclusive presents
Music Rights 101
Michael Wyner on How Music Licensing and Song Publisher NOMA Scores
by Quendrith Johnson
Music rights: two of the most expensive words for filmmakers. In fact some writer/directors end up blowing their budget on the score alone. Filmmakers The Hughes Brothers who gave us "Menace II Society", "American Pimp", and "From Hell" starring Johnny Depp, have said soundtrack accounts for 90 percent of a film's success. Indie filmmakers usually do not have a lawyer on staff, and terms like "Performance Royalties," "Mechanical Royalties" and "Back-end Royalties" can create a swirl of legal tangles.
Music clearances are the purview of music supervisors, but ultimately the filmmaker or television executive is responsible for the vagaries of bottom line in buying and using songs. Single songs can cost from $100 to $100,000 and more. Does one contact ASCAP, BMI, SESAC or the original artist directly? Is it the labels' job to assist in licensing? Are indie bands able to license their own music without their label involved if it is a custom score? Television is another thorny area for licensing.
One of the experts in the field of music licensing is Michael Wyner, founder of NOMA Music, which licenses songs for film and television. Michael taught himself the licensing process in a creative segue from a 20-year career as a music industry executive working with major acts like John Mellencamp, the GoGo's, Quiet Riot, Quarterflash, the ThompsonTwins, Squeeze, the Police, Stray Cats, Iron Maiden, Eddie Money, Meatloaf, Bryan Adams, Joe Jackson, and many more, to this behind-the-scenes aspect of the business. After 18 platinum records and a number of years in music management, one artist asked him to pursue rights and licensing as a side job and it became a full-time pursuit with the founding of NOMA in 1999. NOMA is a music-placement business and features a Composers Division. They have worked with more than 800 production companies.
Talking music-placement for motion pictures, television, and multi-media is second nature to Michael Wyner, and here is his 101 on Music Rights for Filmmakers:
Q: Many filmmakers have talked about the struggle to get music rights. We have one filmmaker who managed to get an original song from Livingston Taylor, but this is a rare example. Is it just cost that makes it prohibitive, or is it the licensing process?
Usually it's the cost of a name artist or a recognizable song that makes it prohibitive for most independent filmmakers with a somewhat limited production budget. Name artists and name songs are always going to cost more than a non-recognizable song or artist. But the licensing and clearance process can be a factor as well when it comes to getting the necessary approvals. For known songs, this means having to clear the rights through the publisher and the master holder (usually the record label). This can be time consuming as well with a lot of back and forth negotiations and there can be a number of decision makers involved.
Q: You mentioned that you are "self-taught" in music rights and licensing. How did you figure out there was a market, and what steps did you take to educate yourself on the copyright and financial, as well as complicated legal aspects of licensing?
About ten years ago, I started making cold calls on behalf of an indie artist in order to get his music into television and film. He already had success doing this on his own, but he asked me if I'd be interested in taking this over from him, as he didn't have time, being a musician and songwriter, was more interested in creating the music than selling it. This is where I got my first taste of actual music licensing, as I started to make cold calls and learned the business and how it operated.
After NOMA Music began operations, I was introduced to a publishing administrator who taught me the ins-and-outs of licensing and helped set up our two publishing companies. He is still with NOMA Music today.
Q: Coming out of the industry side of music, you have some great stories. People will be amazed at the acts you've worked with -- from Meatloaf to heavy rock bands -- can you sketch out a few details of your favorite moments in the music business?
There are many. The record industry was a great place to be in back in the 70's and 80's. Partying with the acts, backstage, unlimited food and liquor tabs, being flown to different cities to see new bands, limousines, and more.
But one story that comes to mind is when RCA Records brought Dolly Parton and her band into NYC to showcase them before radio, press, and retail.
They wanted to cross her over from Country artist to Pop artist, and they wanted to do it in a big way. They rented out Windows Of The World, the restaurant located on the 107th floor of the then World Trade Center in lower Manhattan.
At this location, where they invited and hosted about 500 industry executives, champagne was flowing into every glass whether there was a hand around it or not by a group of roving bartenders.
As the night wore on, I remember being squished in a mob of people and could not move in any direction. It seemed like the crowd was supporting me and keeping me on my feet.
At one point, I looked over to see whom I was leaning on, and that person turned out to be Mick Jagger. Of course, he was one of many known faces in this crowd of partiers this night. This was one party that I was later told set the record label back $40,000.
And I guess it was worth it for them; Dolly became a big Pop artist selling a lot of records after that.
Q: What is the latest in music licensing trends that have an impact on filmmakers -- both positives and negatives for the all artists involved?
From what I'm seeing, the trend has been definitely for the use of more indie music in motion pictures. There is quite an abundance of music available, as the internet has opened up the entire world. The playing field is a bit more level now so all bands and songwriters do have the opportunity to have their music used in motion pictures.
Of course it does help greatly to have a company that specializes in placement to represent this music, and to be able to skillfully select the right songs to present to the filmmakers. This is a big reason as to why so many indie artists, indie record labels, and managers contact NOMA Music for this kind of representation.
Q: When you get into contracts with unsigned bands, is there ever a situation where the band gets picked up by a label and they try to renege on agreements?
We have had some of our artists get recording contracts through major record labels, and others have had their songs picked up by major publishing companies. I even negotiated a contract for one of our artists and he ended up on a well-known World Music record label. But our written agreement with all of our artists allows them to opt out easily in the event that one of these situations arises, since we would, in most cases, no longer legally have access to "pitch" their songs and sign off on any deals involving them.
Of course bands come and go, but even if this occurs, as long as we continue to deal directly with the writer and owner of the songs, we can continue to represent their songs. If they do not want to continue for other reasons, if they let us know, we will release them from our Agreement, and move on.
Q: Do you ever watch a major hit movie and think "I could have scored that so much better?"
Not score so much.
But there have been times when I have thought that I have a particular song or songs that would have fit a particular scene even better. But in the end, it is the filmmakers and their editors that have the final say in which songs make the final cut.
Q: Using 'indie' music artists offers advantages and disadvantages -- can you address a few of the pros and cons?
It's definitely much less expensive to license indie music versus known artists and/or recognizable songs. It is much easier as well to obtain the rights to license indie music.
With NOMA Music, we offer only pre-cleared and ready to go songs, as we do this immediately upon our decision to represent them as one of our clients. And we handle the licensing paperwork, and all other matters that are involved in the clearances. The filmmaker only needs to contact us for this and no one else.
The only con I can think of (and it's not really a con) is that if a filmmaker does not have the budget to use a name artist, or recognizable song, he or she will have to consider the music of an independent band or songwriter. Of course I have seen situations where some filmmakers will spend a good chunk of their music budget just to have a name song or two, and then divide the rest amongst the indie artists songs they end up using. Having a name artist or recognizable song featured is similar to having a name actor attached to the film.
Q: You have a story about Lisa Marie Presley that reflects on the music business's attitude about licensing -- can you share it?
This actually goes back about two years ago.
Her agent contacted NOMA Music and asked if we would be interested in representing her catalog of songs to our film and television producers. I knew that she was already a signed artist with a major label and major publisher behind her, and I said that because of this, she would need to go through their record label and publisher, as they would never grant us the rights to actively license her songs.
I got the feeling from the conversation that she was not getting priority treatment with them, for whatever the reason. I told them to call me back when they had new songs that were not affiliated with any major label or publisher. I hope she is doing okay.
Q: Will there be a time when all the major labels get "hip" to the idea that licensing and rights for "smaller" films or indies is a target-able market? And since you were there first, do you survive because not only were you first to envision that exclusive market, but you are also a music veteran yourself?
Most records labels (Major and Indie) are already aware of this growing market. From what I have seen recently, depending on the "buzz" of a particular indie film, the major record labels will sometimes try to make financial concessions in order to get their "baby" artists songs featured in one of these projects, meaning they will be up for negotiating at a lower licensing fee.
They do realize that having a song of a new artist in a "high profile" motion picture can lead to great publicity and exposure for that act. But the operative phrase here is "high profile".
There has to be a "buzz" of excitement, or the potential to become a big film, a cult classic, etc. If there is a lack of "buzz" around the film, or it is just a low profile release, they probably would not consider this.
For the second part of the question, NOMA Music was not first in the licensing arena. There have been numerous companies before us, but we have survived and continue to thrive since song quality comes first with us, as well as listening to the requested music needs from the filmmaker and carefully sending only songs that fit those requests.
My years in the record industry have definitely helped in determining great quality songs and artists from the not so great ones. Our new artist screening process is fairly involved, the bar is high, and only select artists get asked by us to "come aboard".
Q: If NOMA were a brand of any other product, what would it be analogous to? In other words, you have a branded service here -- but how do you communicate this to industry executives and young, new, possibly skeptical filmmakers?
I feel that we have become recognized due to the quality of our music. A lot of our new filmmaker business comes to us from word of mouth through recommendations, referrals, reading about us, industry sources, even ASCAP.
For those needing music, we ask simply that they contact us, and we will provide samples upon request, and allow the quality of the material to speak for itself. There are numerous placement credits in film, television and multimedia behind us, and since everyone likes seeing those credits, this may help alleviate any skepticism some may have.
Q: Does the NOMA logo appear in the credits of films? Will this happen at some point?
No. Not our logo, and it probably would not be used, as we are only the source of music. But we do request that the producers and directors list the songs we provide to them with a "Courtesy Of", after the song information on the scrolling credits page.
Q: It is interesting that you have so many bands from Sweden and Scandinavia on board. Can you speak to the international appeal of NOMA and why the Norse region? What's with Sweden?
Sweden has been producing some high quality bands and songwriters for a number of years. The writers and vocalists based there seem to take the time to focus more on the aspect of songwriting, vocal skills, and the overall recording production quality, and not just "being in the business only to make money" kind of thing. Their English in most cases is also excellent; as their schools teach the language. More recently, though, acts from other countries have found their way to us, and their music is now providing our filmmakers with good soundtrack material as well.
Bottom line: To us, the country of origin of the music does not matter (unless it's from Iraq, LOL!). It is the quality of the songwriting and vocals that matter.
Q: What has the odyssey into licensing taught you about how the music business is changing -- or has it showed you just how similar it is to other businesses?
What I have learned in working in the music business is that it too is all about relationships, just like any other business. I have developed what I think are excellent working relationships with all of our partners; our filmmakers, directors, music supervisors, managers, the artists themselves.
Trust is the key. It can take many years to develop this trust. Follow through is second. Your word is gold. If you say it, you must do it. Others come to depend on you, and you must follow through or lose all credibility.
Q: With the changing technology from drum machines to the future Kurzweils of the world, does music and its emotional draw stand to gain from these innovations -- or are some of these so-called innovations drowning the acoustic soul of music?
I believe that nothing will really take the place of "live" players versus drum machines, computer software music programs, etc. Music is meant to be emotional, thought provoking, inspiring. You don't really get that from machines. And many of the filmmakers with sharp ears know the difference and prefer music without drum machines and the like.
Q: We haven't talked about television yet. You license all kinds of music to TV shows -- can you name a few highlights?
Yes, we do license all styles of music to a variety of network and cable television shows, documentaries, made-for-TV movies.
Some of our more recent placements are listed on the NOMA Music website, but to name a few here I will mention "Ghost Whisperer", "The Shield", "What About Brian", "The Unit", "Brothers And Sisters", "The Latest Buzz", "Ugly Betty", "Without A Trace", and "One Tree Hill".
Q: Do filmmakers, networks, cable, whomever you are negotiating with, get to set the terms of their budget for you -- and then you relay that to the artist, or is there a set pricing structure that you bring to the table?
Many times the music budgets are pre-set ahead of time. The filmmakers already know (or should have an approximate idea) of how much money they have for their songs the composer fees, etc. They generally let us know upfront, so we can then match up and provide the music that is within their budget.
We do get involved with negotiations when needed, as there are variables that will determine the money needed to execute the license. I am referring to whether the song is used in the opening of the picture, the closing of the picture, how much of the song is going to be used, how many times it will be used, what options are needed (DVD, Soundtrack, etc.), theatrical release or not, film festival, internet use, etc.
Q: What if an indie filmmaker wants your indie artist to do a custom score, but wants you to buy them something from, say, Creedence Clearwater Revival? How do you handle that situation if you don't rep the major artist in question?
We do have some writers that can create cover versions of name songs when needed and when we ask. For clearance, the filmmaker would need to contact the publisher of this song and pay them their requested publishing fee for its use.
Our artist, and NOMA Music, would then be paid the master use fee for the actual hard copy version of the song. We won't have any of our writers create a cover until we know for sure that the filmmaker will be able to successfully obtain the rights to use the name song in question. So we always ask first.
Q: What is the typical music budget you've seen from a typical film project?
Generally the allotted music budget is between 3% and 5% of the total budget of the production. But every filmmaker has their own formula, and may opt to up their music budget if their production is song intensive, or they just want to feature a known song or known artist.
Q: I know you never work for free, but are there times when you will cut a deal with a filmmaker for little up front based on back end -- or other unconventional pricing arrangements?
I would like to say that we are not in a position to offer gratis licenses for the use of our music. Our writers expect monetary compensation for use of their songs or instrumentals, and rightly so, and this is the arrangement we have with them. And the old adage is true, "You Get What You Pay For".
Sure you can find free music out there, but will it be good? In most cases, no!
Our company is open to different pricing structures and we are in a position to work with all music budgets. And we have.
Q: Do some executives/artists make you deal lawyer-to-lawyer, or do you try to avoid legal hang-ups with iron-clad contract language?
We communicate with the lawyers, the managers, the artists record labels, the artists directly. We have attorneys that we consult with if needed, but we are able to generally handle all situations ourselves.
Q: On your days off, do you listen to an iPod -- do you own an iPod -- have you successfully avoided the "i" anything craze?
No. I have avoided the "I" anything craze thus far. I have numerous other ways of keeping up-to-date on the changing music scene, the hot artists, the new styles of music, etc.
Q: What about the napsters of the world and downloads of music... theoretically a guerilla filmmaker could download a "hot" soundtrack and use it, right?
They could. But if the filmmaker does not obtain an authorized written license to use a downloaded song, (or for that matter, a song they could have obtained anywhere), and then still goes ahead and features it, they are setting themselves up for possible legal ramifications.
I have seen this happen before where lawsuits have been filed and the filmmaker or studio has had to "financially settle" with an artist for using a song without signed permission.
The bigger the song and artist, the more money a settlement may cost.
Q: Okay, NOMA. How did you get that acronym together and why did you pick an acronym over other names?
Network of Musicians and Artists was the original working name. It was shortened to what it is today (NOMA), and the name just stuck.
We added the word "Music" after NOMA, since we had become a full-blown music company involved in licensing, publishing, and now dabbling in music supervision.
Q: Do you have a way for artists, filmmakers, sound designers to contact you directly?
They can contact me directly through email, phone, or the NOMA Music site through firstname.lastname@example.org -- (818)-883-1878, and at www.nomamusic.com on the web.
We welcome new filmmakers who are in need of a new and reliable source of high-quality songs and instrumentals. We can even supply a composer if needed. Bands and Songwriters are invited to contact us if they are interested in the licensing end of the music business.
Q: How many projects do you look at a year? How many do you complete a year? What's the incompletion rate -- where it looks like a done deal and then caves?
I have not actually counted or kept track of this, but it is many when you combine all television, all motion pictures, sound-tracks, commercials, and other multimedia projects.
Obviously some projects never complete. They run out of production money, the pilot does not get picked up; the film does not get a distributor, and probably a host of other reasons. But this is just a part of doing business.
Q: In closing, Mike, is there anything you'd like to add -- maybe on a personal note, you play guitar, right? It is always nice to hear things straight-up... like regrets, wishes, fears?
Yes, I used to strum a guitar. Actually, I studied with a Jazz guitar pro in NY for almost 7 years and learned a lot about music through him.
But I have always been into music since I was a young teen, so I am in the right profession... Listened to underground FM radio station music when the jocks played the coolest songs by the new and hot unknown artists. Not like today at all, where they play everything safe on radio. No one is being exposed to all of the great music that is being made. So many styles and combinations. FM radio was really great then. The radio jocks "broke" new artists; music mattered. You could hear all types of music. Not just hits but obscure cuts. And they pushed the artists' songs. Just like we do here at NOMA today.
Discovering a new band or songwriter and making their songs available to our filmmakers is what I love doing. And then watching the success of having those artists' songs featured over and over again in these multimedia projects is most rewarding.
Screenmancer thanks Michael Wyner and NOMA for this exclusive interview.