In this article on CBC News, cartoonist Nina Paley justifies her decision to release her new film, Sita Sings the Blues, for free on the internet. She mentions:
The decision was motivated by both stick and carrot. Stick: the conventional distribution system isn’t working any more; independent filmmakers make virtually no money via commercial distributors anyway; copyright today functions as censorship. Carrot: letting people share the film gives it the widest possible exposure and outsources the otherwise expensive and laborious work of distribution, archiving and promotion to the audience; freedom feels great.(David MacQuarrie).
The existing copyright framework limited how she could release her work. She had to pay $50,000 for music licensing and was limited to releasing 5,000 DVD copies. Paley would have to sell each of the DVDs at $10 each JUST TO PAY FOR THE MUSIC! She was forced to pay so much for music because she had to get a lawyer and work through copyright middlemen. There was no direct source that she could approach. She was able to obtain unlimited use of the music for promotion and therefore she decided to release her work online for free… as a “promotion” and accept donations from viewers. Her movie can be downloaded here.
Obtaining music licensing has long been a sore spot for independent producers. Are musicians entitled to payment for their creative works? Absolutely. The problem becomes exhorbatant costs that create great barriers by record companies to small filmmakers who often won’t make much, if any, profit on their film. To talk to copyright holders, producers are forced to use copyright clearing agencies and lawyers. Music licenses are often very VERY expensive.
There are two licenses that you usually need to obtain:
1) SYNCHRONIZATION LICENSE- this is the right to synchronize a song with your film. The sync license is obtained from the copyright holder or publisher. You can identify who the publisher is from ASCAP.
2) MASTER USE LICENSE- this is a right to use a specific recording in your film. The master use license is usually obtained from the record label.
For example, if you wanted to use Whole Lotta Love (Led Zeppelin) in a film, you would need to contact the publisher,
SUPERHYPE PUBL INC
WB MUSIC CORP
WARNER CHAPPELL MUSIC INC
10585 SANTA MONICA BLVD
LOS ANGELES , CA, 90025,
in order to obtain the sync license. You would need to obtain this license whether you will be using the version recorded on Led Zeppelin II or whether you are using the cover by Ben Harper, or whether you are going to play the song yourself and use your own version.
If you plan on using the version from Led Zeppelin II, then you will have to contact the record company/music label for that recording to obtain the master use license (which I believe is Atlantic Records). If you are going to use Ben Harper’s cover, then you will have to contact his label to obtain his version.
This process is usually very VERY pricey… but there are some stories about independent filmmakers obtaining popular songs for little or no money after spending a large amount of time and energy calling and negotiating. Regardless, this process takes up a large amount of time, energy and money that could be better spent on production.
Instead, filmmakers will usually use original music from indie bands who are unsigned to avoid expensive licenses.
Paley found a loophole in the system that enabled her to have unlimited use of the music licensed for promotion aka. online. This is a loophole that does not exist in every music deal though. Also, if free online distribution expands rapidly, you can bet that record companies and publishers will close that gap quickly.