Licensing a song for a commercial?

December 29, 2010 11:47 PM

I've been approached by a marketing company to see if I would be willing to license one of my songs in a commercial, and I have a few questions.

The commercial is for a marketing campaign for a small company making green cleaning products, this is their first campaign. They are offering to "compensate" us, and it all seems legitimate and I'm ok with doing it... but:

a) roughly how much $$$ does one usually license a song for commercial use for?

b) what should I be doing to cover my ass here?

posted by Quartermass to media & arts (12 answers total)

a) It's impossible to answer this without knowing things like the length of term, relative size of company, relative popularity and commercial appeal of the musical act, advertising budget, the campaign, it it local, national or international (?) and on and on and on. Bigger fish (like, say, Devo) receive a set amount plus residuals.

b) Get a lawyer, first. And unless you are getting residuals, put an expiration date on the license for sure. This company's rights to your music (for commercial purposes) should be non-exclusive unless extra money is paid. But basically, get a lawyer.
posted by Dee Xtrovert at 12:08 AM on December 30, 2010 [2 favorites]

I am not a Canadian of any variety, much less a Canadian lawyer, so n.b. that this is based on an understanding of law in a US jurisdiction. IANYL, TINLA, etc.

Music licensing fees vary wildly based on popularity of the band, area of use, type of use, exclusivity, etc. For example, you'd pay enormous sums (or not be able to get a license) for a Beatles song in a nation/worldwide ad for, I don't know, factory farming -- but very little for a complete unknown's song to advertise rainbows and unicorns on a local station with minimal viewership. Not being in Canada and not knowing the market, I'd hesitate to name an actual number, but my guess is it will be on the low side. Some companies will try to get you to donate the song in exchange for exposure, which you shouldn't do. Even if it's small money, they should pay you money for your work.

If their lawyer is any good, you'll probably be asked to sign an agreement that says you own the song and all rights appertaining thereunto, and that you will indemnify the company and hold it harmless if it proves that you do not, in fact, own the rights to the song. That means you'll be on the hook if someone decides he owns the song and tries to sue the company for using the song without permission. This is pretty standard, but you should make sure you've got all your ducks in a row regarding any potential co-authors or other inspirations/sources (remember "My Sweet Lord" -- infringement doesn't have to be intentional plagiarism to cause you a heap of trouble).

You should probably speak to an entertainment lawyer about reviewing the contract for you, but it can be difficult to justify paying for those services when you're not making much off the sale. In general terms, be aware of exactly how much you're signing away -- the larger the territory, the longer the term, the greater the exclusivity, the more they should be paying you. The more specific they can be, the better (e.g., one 30-second spot to air in X, Y, and Z markets through the end of 2011 -- now you know they can't just go crazy and air your song from here til the end of time). Don't assign the copyright, think carefully before waiving moral rights if they apply in Canada. Do not sign under pressure -- anyone worth doing business with should let you take the contract home, have it reviewed by your attorney if you wish, think it over, etc.

That's all I can think of for now, as I should have been asleep an hour ago, but I'll try to check the thread tomorrow or you can memail me if you'd like.
posted by katemonster at 12:26 AM on December 30, 2010

I did a little snooping though your profile. Your band seems small (observation, not a bad thing). I would argue that any publicity that comes out of the exchange would be fair compensation. Anything on top of that is more like gravy. I would carefully read the contract and make sure that you retain rights to the song and that a timeline for use is in the paper work.

I am not a lawyer, but I would not hire one. It sounds like the cost of a lawyer would take more then the compensation. Unless you want to have a better boiler plate contract for commercial use in the future.

Again, I would just be happy to say I was a possessional musician; bonus points for using it as a pick up line.
posted by Felex at 12:35 AM on December 30, 2010

I would argue that any publicity that comes out of the exchange would be fair compensation.

I would say that once you give something away for free, it's very hard to then convince someone that they should start paying for it. They want your music and it is worth something. It is worth figuring out what that is and charging accordingly.

Having a lawyer help you set terms is also a good idea. What if they end up wanting to use your song again, or for a longer period of time than they had planned? You want to make sure that you are compensated for additional use. This is all standard stuff for lawyers who practice in this area. It shouldn't break the bank to have a lawyer draw up documents or look over and make changes to what is presented to you.

Good luck!
posted by Nightman at 1:18 AM on December 30, 2010

Dee is absolutely right. You need a lawyer - although an agent might be a better choice. You don't know what the standard terms are, and you don't want to discover that you've (e.g.) lost the rights to your song through a bad contract. I bet an agent will make you more than he/she charges to represent you.
posted by Joe in Australia at 2:45 AM on December 30, 2010

I am a lawyer from Canada - but I am NOT your lawyer.

For some free input, try a group for which I used to volunteer: Artists Legal Advice Services. However, it may take a while to get a meeting with them. When I worked for them, they only had meetings a couple times a week.

For the best entertainment lawyers in Canada (in my humble opinion): Taylor Mitsopolous.

Good luck with it.
posted by evadery at 6:02 AM on December 30, 2010 [1 favorite]

Damn. ALAS seems to be Ontario only, so you may be out of luck - however, they may have some advice on a referral in your neck of the woods. It doesn't hurt to call them, as when I worked for them, we had a wide range of referrals.
posted by evadery at 6:06 AM on December 30, 2010

Get a lawyer. Nobody on here will give you as good of an answer as a lawyer.

Good luck.
posted by hal_c_on at 8:48 AM on December 30, 2010

Isn't that what ASCAP or RIAA is for? I'm not being a smartass- despite the bad press, one of their real jobs is to manage stuff like this.

If they don't work in Canada, there has to be a Canadian org that does the same thing.

Failing that, negotiate something that compensates you for each airing of the commercial.
posted by gjc at 9:30 AM on December 30, 2010

Yeah, join ASCAP or BMI if you have not already and register your works with them, especially whatever one is up for licensing.
posted by Lutoslawski at 10:43 AM on December 30, 2010

This has been very useful.

I've been active in the DIY/Lo-Fi/Punk community for so long, and have managed to release albums and make a bit of money without copyright, lawyers, etc. ASCAP? RIAA? The money is so bad that "lawyering-up" seems like a pipe dream. Realistically if I get $1000 for this song for this "low-budget" commercial, it doesn't really make a lot of sense to give that away to a lawyer before we even get started. Which is why I was probably contacted in the first place.

That said, I'm gonna talk to a lawyer, 'tis what I knew in my heart before I even asked the question. Thanks!
posted by Quartermass at 10:55 AM on December 30, 2010

I am not a lawyer, but I used to run a little indie record label in the US.

I strongly second evadery's suggestion to talk to an organization like Artists Legal Advice Services. I had some contact with a similar organization here and it was very helpful - and they had a huge library of books about the business that was helpful as well.

As I understand it, neither ASCAP nor RIAA is likely to be of much use here; contracts like these can contain pretty much whatever terms both parties agree to. ASCAP (and the similar Canadian organization) primarily deal with compensation for radio play and live performance; I think it's typically assumed that your compensation for use in a commercial will be negotiated separately. (As you're doing.)

My main advice would be this: if you can talk to a lawyer, great, but BE SURE TO READ THE CONTRACT YOURSELF. All of it. Know what you're signing.

Other than that, I agree with the above:

* there's no such thing as "typical", so you'll have to go with what seems fair to you
* given that it's a "low-budget" commercial, whatever you get will probably be a good thing, but you definitely want to have clear limits on what that payment covers

Congrats on the offer, and good luck!
posted by kristi at 11:07 AM on December 31, 2010