When using music in film production, there are always questions about GEMA fees and usage rights. A contribution to understanding the most important ancillary copyrights.
However, the following information does not constitute legal advice; it merely provides a practical insight into the subject area.
If you have specific questions, you should always consult a specialist lawyer.
Film + music = a new work
When I use music for my film project, a work is created in the legal sense, i.e. the filmed and edited footage is combined with an existing piece of music and thus receives a new statement: a new work is created.
The rights to this work are held by all those involved who have made a significant contribution to its success: Actors, writers, speakers, graphic designers, authors, cameramen, video editors, production companies and so on.
In the case of music, this is primarily the author/composer, but the lyricists, singers, musicians and sound engineers also have ancillary copyrights.
What does GEMA-free mean?
GEMA represents the interests of music creators in Germany.
GEMA represents the interests of its affiliated members with regard to the mechanical reproduction and performance of works.
Whether a composer joins GEMA is a free decision.
The more successful and well-known the author is, the more sensible it is for him to become a GEMA member.
If the author/composer is a member of GEMA, then GEMA fees are also due.
The use of GEMA-free music only means that no fees are payable for the performance and reproduction because all those involved in the work are not members of GEMA.
But if GEMA-liable music is to be used, how high are the GEMA fees?
GEMA’s T-W-AV tariff is usually the right one for classic product or image films.
For each minute of music or part thereof, 37.50 euros are due for reproduction and a further 37.50 for making available to the public on the Internet (plus 7% VAT).
In addition to these rights, however, there are other rights that need to be clarified. The most important is the right of use.
Caution! Music usage rights!
The intention of a composer / singer / musician when creating a work is in most cases an artistic expression of his thoughts and ideas.
When Queen published the work “We will rock you”, it was not the intention that it could also be used for an OBI commercial.
If an advertiser wants to earn money through Queen’s piece of music, then it is also understandable that the author gives his consent to this idea and also profits financially from it.
It cannot always be assumed that a musician is enthusiastic about the idea of his music being associated with a company, a product or a party/association.
In principle, it is always up to the author to decide whether his music should and may be associated with a commercial interest.
Only the author or the owner of the rights of use can grant the right to use a piece of music.
GEMA does not represent these interests!
Licenses of use are generally limited in time, territory and to certain media and in most cases must be obtained from the music publisher, who represents the rights of all parties involved in the work in this matter.
Furthermore, it must be clarified whether the work may also be edited, shortened, extended or changed. This right is by no means self-evident because an adaptation can significantly change the character of the work.
The use of GEMA-free music is not free of charge!
Not relevant: copyright
The copyright lies with the author/composer and is not transferable! The acquisition of copyright is irrelevant for commercial use in film projects. Nobody wants to claim or benefit from the fact that they are the author of the work. The client of a film project is primarily interested in the effect and mood or even the popularity of his film. Granting the right of use is the essential first step in the commercial use of music.
The copyright is transferred to the author’s legal successor in the event of death and expires after 70 years. For Puccini’s “Nessun Dorma” in the performance by Luciano Pavarotti, I do not need to obtain any rights of use from the composer, but I do need to obtain them from the representative of the performers’ interests: the music publisher
Tip: Production music
In order to meet the needs of film production and ensure legal certainty in the use of music, specialized publishers offer production music or archive music. Licenses can be purchased there, depending on the type of use and the length of the music used. The pricing models vary greatly from publisher to publisher and are constantly evolving as market needs change.
Some publishers also offer royalty-free production music.
However, the selection of music is smaller because many musicians have recognized the advantages of GEMA for themselves.
On the other hand, the demand for royalty-free production music is rising sharply because the licensing requirements are becoming increasingly unmanageable.
The “shelf life” of videos is becoming shorter and shorter and the intended use less and less predictable.
The willingness to spend money on music that only plays in the background of the video anyway, is only used once and whose distribution may not even be controllable, is not particularly great. Every user is faced with the dilemma of moral principles, respect for the artist, the value of the music and the production budget.
A selection of providers I occasionally work with:
My movie on Youtube
Copying music for purely private purposes is legally unobjectionable. Uploading films to the YouTube platform is for publication and is therefore not private. In corporate communications, it is therefore important to have the necessary rights for images and sound because the purpose is not private. This applies to any type of making available to the public on the Internet and is not regulated separately for YouTube.
The legal dispute between YouTube and GEMA, which has been ongoing since 21010, is about, among other things, differing views on who is responsible for the content of the videos.
GEMA sees the streaming service as a broadcaster (content provider) and is demanding remuneration for music broadcast from GEMA repertoire.
YouTube, on the other hand, sees itself merely as a hosting platform and therefore not responsible for user content.
Anyone who uses GEMA-liable content for their film project and registers it accordingly does not have to fear any adverse effects from this legal dispute.
Conclusion:
If you read “Download music GEMA-free and free of charge” on the Internet, it does not mean that the music may be used free of charge, at least not for commercial use! Only the download itself is free of charge.
Update November 2016:
YouTube and GEMA reached a temporary compromise on November 1, 2016. YouTube pays the artists represented by GEMA a percentage of the revenue generated by advertising. However, both parties were unable to fully enforce their legal opinions. For users, however, it means that the blocking board has disappeared, which is a good thing. However, the agreement is only valid until April 2019.
