How does licensing for the music work on these contest shows?
December 15, 2012 2:18 PM   Subscribe

How does licensing for the music work on these contest shows? The Voice, American Idol, X Factor, America's Got Talent, et al. Especially during the audition process where they might now know what people are going to sing before they're on stage.

Even though they're not using the artist's recording, I imagine there has to be royalties owed to composers, lyricists, musicians on the instrumental tracks, etc. So how do they manage it? I've imagined some situations:

1. Contestants aren't actually free to sing whatever song they want. There's a long list of pre-licensed material and they have to choose one of those. I could believe this, because if you watch enough of these shows you hear the same songs over and over again.

2. Contestants sing what they want and the producers license it post facto. So if a contestant's audition ends up on the editing room floor, maybe they only have to license for a live audience instead of a live audience plus television. But is there some material that's just too expensive to license in any situation, and the producers tell the contestant "No, you just can't sing that song"?

3. Every one of these shows is in bed with the RIAA and the RIAA takes a predetermined % of the show profits, no matter what songs are used. But surely some of the material isn't licensable through the RIAA; is it then verboten or do the producer just license it separately?

Again, I'm particularly interested in music used during the open auditions. I imagine after that phase it's much easier to figure out ahead of time what's going to be sung on the next show.
posted by sbutler to Media & Arts (14 answers total) 2 users marked this as a favorite
2004 NYT story.
The hopefuls can sing anything they want, but those chosen to be on the TV show--the production company clears those songs. Then, as the contestants go on every week, the production company offers pre-cleared selections from which they can chose.
The only license these shows need is one for the composition--they don't need to clear previous performances or musicians.
posted by Ideefixe at 2:24 PM on December 15, 2012

RIAA is for mechanicals, which is the use of someone's recording of a song.

ASCAP and BMI cover performance rights. I believe, but I am not sure, that there are statutory prices for performing musical compositions covered by those agencies. Perform the song, pay the listed fee for that song. Or, you negotiate with the copyright owner for a reduced fee. Or, as wikipedia says, you pay for a license from ASCAP/BMI to perform their songs.
posted by gjc at 3:23 PM on December 15, 2012

Cover versions have a compulsory royalty (anybody can do it) that is set by law. The performer (or their rightsholder) is responsible for this royalty when recording, the venue/show is responsible when performing. In the case of these shows, it's basically an Excel spreadsheet that the songname is added to for later reporting back to the performing rights organization. There's more to it, of course, but this is the basic idea.

Songs that are "too expensive" or not licensable are original recordings, such as the Beatles' "Revolution" being used in a Nike commercial 25 years ago.
posted by rhizome at 3:33 PM on December 15, 2012 [3 favorites]

Especially during the audition process where they might now know what people are going to sing before they're on stage.

I have a friend who once auditioned for Idol. My understanding is that the producers know in advance what the auditioners on the show are going to do, because there are several rounds of auditions before you get to the part where you audition for the TV judges. I guess it's possible that somebody might pull a fast one, or someone might have a huge repertoire and be cagey about what they're going to sing at the televised audition. But these people are pre-screened and the production at least has some idea of what they're going to sing.

The production probably formally asks the auditioners who make it to the TV round to say what they will sing, or to narrow it down to a few ideas. Over which the show would presumably have veto power. (This is what it was like when I figured out which personal anecdote to use on Jeopardy! They ask for five ideas and then one of those actually gets used.)

My guess is that if there is a situation where someone surprises everyone at the last minute, well, the audition portions of the show aren't live and they probably clear the music after the auditions but before the airdate.

It occurs to me that the smart way to produce the show would be to have contacts at all the relevant music licensing companies, and possibly even blanket deals to pre-clear anything by, say, Whitney Huston or Neil Diamond or other go-to folks like that. They may even have standing clearances on a particular song, so that every time someone does "Wind Beneath My Wings" it's already taken care of.
posted by Sara C. at 3:35 PM on December 15, 2012

rhizome: "Cover versions have a compulsory royalty (anybody can do it) that is set by law."

I'm not sure that broadcast of the cover version of a song is acceptable under the US compulsory licensing scheme - seems like it might just cover physical recordings. If I read 17 USC 106 correctly, public performance of a copyrighted work is an exclusive right of the copyright holder.
posted by exogenous at 3:41 PM on December 15, 2012

Every one of these shows is in bed with the RIAA and...

Every television show and movie you have ever seen is "in bed" in this way with every mega-corp ever. Every time you see a can of coke or the Bank Of America logo, somebody had to call up that company and get a signed agreement that it was OK to show. Every song you hear was licensed from the relevant licensing organization. In many cases (especially in reality TV), the tail somewhat wags the dog, and the show is made possible by companies supplying products or even fronting money so that the show will act as a form of advertising for them.

Interesting example from real life. It's really really hard to clear anything related to Major League Baseball. When I used to work for a police procedural show, anytime a Yankees cap, signed ball, or baseball jersey was mentioned in a script, we would all collectively roll our eyes because You Just Can't Clear Baseball. On the other hand, our clearances person had a contact at the NBA, and it was a matter of twenty minutes in order to clear anything basketball related. So when we needed logo merch or sports paraphernalia, guess which sport we picked?

Have no illusions that your favorite media is pure of any evil corporate influence.
posted by Sara C. at 3:45 PM on December 15, 2012 [5 favorites]

about the auditions, Sara C. has it - what you see in front of the judges isn't anywhere close to the first time someone has seen them sing. all those "bad" auditions are chosen for that reason. if you look at the wiki page for a season of american idol, under regional auditions you see there's an audition venue/date and a callback venue/date. i've also read other accounts that say you actually sing a few songs for the judges, so i would guess they're told which songs they should lean towards for the call backs.

when you get to the songs sung on the show - there's a reason that someone from the label is involved (iovine for idol, reid for xfactor) - it's a sweetheart relationship - the label gets money for itself/the people under its umbrella - the show gets theme nights and a book of songs they know won't cause any problems. sometimes the labels use shows like idol to generate buzz about their artists/new singles - for instance, haley reinhart singing you and i before it was released as a single.

a general rule for shows like this (that i love to watch, so i'm not slamming them), any "surprise" moment you see is likely not.
posted by nadawi at 3:53 PM on December 15, 2012 [1 favorite]

To give you an idea of just how much they refine the original pool of auditioners to those that you see on TV:

My coworker's boyfriend auditioned last year at Dodger's Stadium. The giant parking lot around the stadium was full of people waiting to audition. They don't show a full baseball stadium's worth of auditions on TV, though.

Sara C is also right that there is enough lag time between the first and second round of auditions for the production to get a solid idea of who is singing what.

Also, music licensing is pretty easy to arrange on short notice from what I know of the process. It sort of seems like little elves in the legal department at [REDACTED MAJOR STUDIO] just kind of figure this shit out for production, but I'm sure there's more back and forth than I'm aware of. Clearing other things - like names, or anything baseball-related, apparently - is trickier. With music, I think it's just a matter of paying some large-ish amount of money.

I know that some songs are more expensive than others, but I'm not sure how much that's a factor for American Idol these days.
posted by ablazingsaddle at 5:52 PM on December 15, 2012

If I read 17 USC 106 correctly, public performance of a copyrighted work is an exclusive right of the copyright holder.

Yeah, but compulsory licensing over rides that.
posted by empath at 9:32 PM on December 15, 2012

It may also have something to do with the fact that the major media companies, like Disney, own the record company anyway and just let their own networks use their own music. This just happened recently on an ESPN podcast that once they knew the Star Wars sale to Disney was finalized they started using the music, the producer even admitted on air he wasn't sure if he could or not but he said "why not try we're all the same company now anyway."

See also Even Harry Potter Pic Loses Money for more shady in-company accounting.
posted by M Edward at 10:38 PM on December 15, 2012

empath: Yeah, but compulsory licensing over rides that.

OK, but the compulsory licensing described in section 115 says "exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing" (emphasis added). Do you think this covers broadcasting?
posted by exogenous at 8:48 AM on December 16, 2012

Do you think this covers broadcasting?

No, it doesn't. The presence of the word "phonorecords" in copyright law is a tell that what is being described applies to nothing else besides manufactured objects (vinyl records, CDs, cassette tapes, etc.), and there are entire swaths of US copyright law oriented around special legal considerations for "phonorecords."

I don't have a cite right now, but the broadcast aspect is covered by different sections.
posted by rhizome at 10:37 AM on December 18, 2012

empath, 17 USC ยง 118 is for noncommercial broadcast (i.e. public television). I don't think these sorts of contests normally appear on PBS.

Copyright law class was quite a while ago for me, and not something I've used much since, but looking at my old notes I don't see any statutory compulsory licenses that would apply for this sort of performance and broadcast, under US law.
posted by exogenous at 6:28 AM on December 19, 2012

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