I am pleased to bring to you our next guest post by Abhilasha Bhatnagar. Abhilasha is an Intellectual Property Rights counsel with over 8 years of exposure across leading law firms, broadcast media, and music record labels. She has extensive experience in advising on music, media, sports and entertainment laws. She is an alumnus of National University of Juridical Sciences, Kolkata (NUJS).
In this post Abhilasha discusses about synchronization licenses and the essentials that content producers must know while obtaining sync licenses.
Rights and limitations around usage of copyrighted music are complex. Copyrighted music simply means rights in (i) the song i.e. the underlying literary and musical works (“Works”), and (ii) recorded rendition of the Works (“Sound Recording”), each of which are either owned, controlled and/or operated by an entity or an individual respectively. Producers of certain original content who wish to use the Works and/or the Sound Recording in their created content, must fulfill the requirements that are briefly discussed in this post.
Synchronization rights means right to use or pair the Works and/or the Sound Recording with the certain visuals to create cinematograph films. Such visuals can be of a web-series, cinematograph Film, television program, video, web-cast, advertisement etc. A producer may be interested in using either the Works, or the Sound Recording, or both, to pair with the visuals of created original content and may approach the owner, typically (but not always) the record label and/or the publisher, to obtain the relevant license(s).
As per the Indian Copyright Act, 1957, as amended, the owner of copyright shall have the right to exclusively exploit the copyright. Thus, synchronization license ensures that when copyrighted Works and/or Sound Recordings are used by a third party in its work, requisite permission from the copyright owners are obtained and that they are compensated adequately for such usage. Any usage without obtaining a valid synchronization license would be in violation of the copyright law, entitling the copyright owner to sue for copyright infringement and claim damages and injunction for exploitation of the said synchronized content.
The copyright owners are not obligated to grant a license and may refuse the request of the licensee(s) in certain circumstances. Once that hurdle is crossed and the copyright owner has agreed to grant a synchronization license, contracting parties must negotiate the key terms, to close a deal. While drafting a synchronization license agreement, besides the legal provisions such as (i) grant of rights that lists out the rights and restrictions in usage of the license, (ii) representations and warranties of both parties, (iii) Intellectual Property Rights – in the Works, Sound Recording, and the cinematograph films i.e. new audio-visual content synchronized with copyrighted music (iv) Indemnity, (v) Termination, (vi) Confidentiality, (vii) Governing Law and Jurisdiction, and (viii) the boilerplate clauses such as assignment, severability, waiver etc, there are other key commercial points, as set out below, which the parties must extensively negotiate upon:
- Term of License: The permissible period of usage of the license. In almost all cases, longer the period of usage, higher will be the license fee.
- Territory: The permissible territorial limits of the license. In almost all cases, more the number of territories, higher will be the license fee. Geo-blocking is adopted for territories for which rights are not specifically granted by the copyright owner/licensor.
- Licensed Mediums: The permissible mediums of exploitation, e.g. broadcast media, digital streaming, social media etc. The licensor may restrict the licensee from exploiting the licensed content on certain platforms.
- Licensed Duration: It is important for the parties to record the duration of the Works and/or Sound Recording which is being licensed for usage/pairing with the visual elements. E.g. A record label/licensor may license only thirty (30) seconds of a sound recording to be paired with the visuals of web-series produced by the content creator/licensee. Needless to say, higher the duration, higher will be the license fee.
- Scene Description: The parties must agree to the narration and manner in which the licensed content may be used with the visuals and this should be recorded clearly in the contract.
- License Fee: License fee will vary upon various factors such as, inter alia, (i) significance of the piece, (ii) whether it is a famous song or a relatively unknown one, (iii) whether it will be used in the original form or a cover version. Also, copyright owners, in their sole discretion, may waive or discount the license fee if the copyrighted music is being licensed for a social cause.
- Credits: Parties must agree on the credits and the manner of their display during the exhibition of the content and/or if the credits are to be given in the description box on the exhibitors platforms. Original authors of the Works i.e. the lyricist and the composer, the performer, owner of the sound recording i.e. the record label, must be given credits in the manner agreed by both parties.
It is imperative that the above provisions are adequately addressed unambiguously in the synchronization license agreements and the licensees abide by such terms so as to avoid any potential litigation for copyright infringement and breach of license.
Obtaining a synchronization license ensures that the copyrighted music may be paired with the new visuals to create new audio-visual content. However, a public performance license is also required to ensure that the underlying literary and musical works may be communicated to public via, inter alia, transmission through television channels of broadcasters (such as Star Plus, Colors, Zee, etc) and digital streaming (through Netflix, YouTube, Facebook, etc). Public performance licenses have been put into place to ensure that the authors of the underlying literary and musical works are compensated with royalties every time their work is used or utilized by a third party. These licenses are granted by the copyright collecting societies (such as IPRS in India) on behalf of the authors of the underlying literary and musical works embodied in the Sound Recording. It is important to clearly identify in the license agreements who shall be responsible for obtaining the public performance license. Typically, in most cases, it is the responsibility of the content exhibiting platforms to obtain such licenses.
It may get a little confusing and overwhelming in the beginning for a producer interested in pairing copyrighted music with the original content that he has created. However, a seasoned copyright lawyer may close complex synchronization deals on behalf of the producers and also obtain relevant license(s) from the copyright collection societies to enable exploitation of the content.
Disclaimer: – all views and opinions expressed in this article are of the author and are not endorsed by the author’s employer.