$UCCE$$: Music Licensing – License to sell

Independent artists are finding themselves more in the mainstream, but with a route that’s anything but conventional, and a price that’s sometimes anything but fair  

Photo courtesy of Jeremy Devine: Jeremy Devine, owner and president of Temporary Residence Records, sees music licensing as a legitimate tool for bands, but also realizes it opens the door for uses that bands don’t necessarily approve of.

Photo courtesy of Jeremy Devine: Jeremy Devine, owner and president of Temporary Residence Records, sees music licensing as a legitimate tool for bands, but also realizes it opens the door for uses that bands don’t necessarily approve of.

Sell-out. No other term can strike the degree of fear and despair in the hearts of both independent musicians and indie rock fans as these seven little letters with a hyphen. Obsessing over this controversial, and arbitrary, concept is one thing that sets independent music apart from the mainstream. The irony, of course, is that even though indie bands tend to denounce selling out — vociferously — and many indie fans will criticize their favorite band if its members do sell out, there is no consensus about what officially constitutes a sell-out, or what one must do to be classified as such. Some die-hard indie fans accuse a band of selling out when its music is available in stores. But isn’t it fair to assume most bands are just trying to maintain control over their music and keep some semblance of artistic integrity while trying to survive and continue making new music at the same time? This is no easy balance.

Only recently, a new avenue has presented itself as a legitimate option. Music licensing — an artist allowing his or her music to be reproduced, sometimes involving a fee, in movies, TV, video games and so on — has become more available to indie musicians in a way that was largely unheard of just a decade ago. Where once movies and television shows only featured music by big-name performers or unknown Hollywood jingle writers, films and TV series these days often feature songs that may be unfamiliar to most of their viewers, written and performed by important artists within the independent community.

Explanations for this shift are nearly as numerous and varied as definitions of “sell-out.”
Rachel Grimes, in charge of piano and organ (among other things) for Louisville’s indie-rock chamber music darlings Rachel’s, thinks it has to do with marketing to specific groups.

“I can only assume it’s some sort of cache branding notion, companies that want to portray a certain image, or they want to choose the music that appeals to a particular demographic. I’m thinking of Volkswagen and GAP and people who I know have used Stereolab and Yo La Tengo and Tortoise and My Morning Jacket. All those bands have licensed music to commercials and they were for specific brands that probably were looking to grab the attention of people who already knew the music, because they thought that it might be a good demographic for their product.” (Note: Yo La Tengo do compose music specifically for commercial use.)
Jeremy Devine, owner and president of Temporary Residence Records and a native Louisvillian now based in New York City, credits an increase in younger music supervisors working for various mainstream media companies.

“It’s all a bunch of ad executives who all happen to be our age right now. The people who are in their mid- to late-20s are picking all this music that they’re really excited about, because the company they’re working for can afford to give them X amount of hundreds of thousands of dollars to pay for this shit they don’t know anything about.”

Another Louisville-born expatriate, Los Angeles-based music supervisor Christopher Browne, seems to confirm Devine’s theory. Browne worked as music supervisor on several television and film projects, including National Lampoon’s “CollegeTown USA” and “Kiss & Tell,” and says that he got into music supervision because of his love for music.

“I often try to get bands I like or am friends with, but it’s not always easy, and you never want to force anything,” Browne says.

Regardless of who or what is responsible, one thing is clear: We are living in a time where exciting and potentially dangerous new opportunities are available to independent musicians. And like most opportunities, these come with positive and negative aspects, which must be weighed carefully before deciding whether to get involved in the Industry or try to (gasp!) take advantage of it.

Is this all about money?

The most obvious advantage is the monetary one. Dave Johnson, singer and guitarist for Kentucky’s rowdy rockers The Glasspack, explains his stance simply: “I just make the music and trust

Photo courtesy of Jeremy Devine: Jeremy Devine, owner and president of Temporary Residence Records, sees music licensing as a legitimate tool for bands, but also realizes it opens the door for uses that bands don’t necessarily approve of.

Photo courtesy of Jeremy Devine: Jeremy Devine, owner and president of Temporary Residence Records, sees music licensing as a legitimate tool for bands, but also realizes it opens the door for uses that bands don’t necessarily approve of.

to try and get it into things where it will get more money. Because that makes a difference in the indie rock world, where every little dollar helps.” It’s much easier, one derives, to trust a small indie label like The Glasspack’s — Small Stone Recordings — than a giant conglomerate.

The Glasspack: have licensed their hard-edged dirty rock to video games and extreme sports.

The Glasspack: have licensed their hard-edged dirty rock to video games and extreme sports.

Grimes goes into further detail: “It’s really kind of a problem when you’re concerned with making music and making it meaningful to you, but then there’s the commercial element to what you’re doing, which is making records and trying to earn some kind of living off of that in order to be able to keep making records. can be a really positive complement to that, because generally people are licensing music that already exists, so there’s not a great deal of additional work to make it happen, which is why it’s kind of nice to have that opportunity. People can earn a little extra money for the songs they’ve done so they can keep making more songs.”

 Though licensing money is a welcome help for many indie bands, Devine is quick to point out that it isn’t the only way a band can get by.

“Licensing certainly helps …  but make far more money touring, just playing live and selling records than they do from licensing. I do disagree that it’s the only way. But it is definitely a way for bands that would otherwise never support themselves selling records to make money themselves. It’s a way for bands who would sell 2,000 records and never even pay off the debt of recording a record to be able to live off of their music.”

Proceed with caution

Music licensing is not just free money and the excitement of hearing one’s music on TV or a big-budget Hollywood film, however. There are things to worry about other than losing credibility. There is, for example, the very real and grim possibility of being tricked by big companies with clever lawyers.

“There’s the element of whether or not you’re being taken advantage of … I think that’s a question a lot of us have had,” Grimes says. “Are some of those folks side-stepping commercial music in order to sidestep fees? You don’t want to look back on an agreement and think that you’ve opened up the floodwalls to other people getting taken advantage of and feeling like you’ve been taken advantage of yourself.”

Devine has just such a story. Temporary Residence artists Explosions In the Sky were given a seemingly great opportunity when asked to score the movie “Friday Night Lights.” Later, however, Devine and the band discovered that some of the music from the original score was being used without the band’s permission as theme music for various sporting events, including Wimbledon, the U.S. Open, and even a NASCAR race. Apparently, because the songs had been written as a score for the movie, Universal owned them and, as a parent company to NBC, were licensing them out for free.

“We don’t really care about the money, but the context is really important to us and to that band, and if they’d have asked to do it, chances are we would have said no, because we didn’t want to have the music affiliated with half of the places where they’ve placed all of this music,” he says. “And so that’s kind of frustrating because the whole point of us doing licenses is to be in as much control as we can over the context of the music, and so, if they had asked to do a license for free and it was something we wanted to do, we would happily do it for free, because we license to student films all the time. And they don’t pay for it and we’re totally fine by it.”

“But,” Devine adds, “they ask, and we’re just happy that they asked.”
Grimes echoes Devine’s stance: “For the people that don’t have much of a budget, we always just kind of have a very simple, standard, universal agreement, and there’s no fee exchanged. In other words, we just do it for free, but we just ask the filmmaker to include us in the credits, with the proper song title and what record it was from and all of that. And that’s the majority of our licensing agreements.”

Greed vs. decency
Grimes and her bandmates have more in common with Devine and his record label than just their stances on low-budget productions. Rachel’s also have a licensing horror story, although Grimes asserts that what happened to them is not in any way an example of music licensing. It is, in fact, the exact opposite.

Dateline NBC liberally interpreted a law that allows news programs to use any piece of music it desires without licensing it. The justification for this loophole in copyright law is that news programs have such quick turnarounds, and unlike regular television shows, won’t be re-run, so one-time use for news purposes is construed as acceptable.

In this case, Dateline NBC aired a documentary detailing a book account of the story of the Essex shipwreck, which inspired Herman Melville’s classic novel “Moby Dick.” The documentary was two hours long and contained interviews with historians and a significant amount of graphic design work, which made it pretty clear that it had not been made in the fast-paced fashion in which a nightly news program is made. The show also featured 28 minutes of credit-less music by Rachel’s, all of the songs coming from the nautically themed The Sea and the Bells (11 of the album’s 13 songs were used), not to mention similarly unlicensed music by several other artists. Grimes asserts: “Read into what you will. It’s just criminal and they do it over and over again. There’s not much you can do about it because the law’s been modified to accommodate them and nobody’s foolish enough to sue NBC.”

Instead, Rachel’s — whose songs are licensed through BMI — complained to the agency about NBC. Months later, the band finally received payment. The adage about it being easier to ask for forgiveness than permission — especially with millions of dollars at your disposal — seems to apply fairly regularly to this industry, although not everyone agrees.

“There have been situations when bands who are against licensing have caused me problems, but I don’t think there is much controversy,” Browne says. “Anytime you take steps to license a song, there is always a possibility that it will be cost-prohibitive or that they just won’t want to have their music in your production. It’s not important to me why they won’t do it, all I know is that I need to find a new song.”

Keep moving on
Despite problems they’ve had, everyone I spoke to continues to license music.
“The industry is what it is, and these things happen where people use your music in contexts you wouldn’t want them to, and what can you do?” Grimes says. “It’s just part of putting your art out into the world.”

Most musicians press on despite occasional bad experiences. Johnson and The Glasspack have found a comfortable niche for themselves and their music in the world of extreme sports. From videos and competitions to video games and television shows with extreme sports connections, like MTV’s “Viva La Bam,” there is a whole world of opportunity for The Glasspack’s unique brand of energetic, hard-edged dirty rock.

Grimes and the rest of Rachel’s prefer artistic partnerships with independent filmmakers, choreographers and the like, with the occasional side-trip into the more commercial world of larger films, TV shows and advertisements. Devine continues to send out promotional material to music supervisors.

“I would say 95 percent of the time, we’ve been totally happy with the decisions we’ve made, because it’s given bands a chance to work with directors and filmmakers they really admire,” he says. “And it’s given bands a chance to survive on music that they haven’t compromised whatsoever. They’re getting paid for the use of something they totally appreciate and admire, and they don’t have to change the music at all. And that’s a really rare situation.”

Although licensing music to films, TV shows, commercials, video games and so on has become an increasingly available and beneficial option for independent bands trying to survive on their music careers and continuing to make new music, this independent-music-friendly climate in the mainstream entertainment world could be short-lived.

Devine speculates: “I think it’s a bubble, and I think it’s going to burst like every other bubble has. I think we’re definitely in a really rare sort of halcyon period where a lot of this stuff is happening and I don’t think it’s going to happen forever. So anybody that’s getting it now should definitely take advantage of it while they’re getting it. … Because I don’t really see this being the new norm. I mean, I don’t see this happening forever. Inevitably the demand will get so that the prices will inflate so that people will start hiring people to remake the same kind of song they’re looking for, for a tenth of the budget. That’s what happened in the ’50s and ’60s, and it’s going to happen all over again. … And that will be the end of that.”

Anthony Bowman is a Louisville-based writer and frequent LEO Music Desk contributor whose debut novel, Salem, will be out soon. Contact him at [email protected]