If you're a brand, your music licences will often made out to your agency, meaning you will have no visibility on the terms of the licence and (actual) fees paid. This can mean 3rd party markups among a number of other issues. Here I discuss the intricacies of synch licensing and why, in the words of Tom Waits, "the large print giveth and the small print taketh away".

'Step Right Up' by Tom Waits

Licensing a copyrighted track for a commercial takes expertise, whatever the media platform. This means that somewhere in the campaign there should be a synchronisation licence defining the terms and the parties involved. These are usually between an experienced music supervisor and agency producer. The first steps in the licensing process should be reasonably straightforward. To consequently find the correct rights owners to begin the process.

But ask any business affairs team at the big agencies or the IPA. They advise their teams about music day in and day out. From the invisible pitfalls or the ensuing conversation with their insurers. When something does go awry, you will hear a lot of heated conversations and hot potato activity about where the liabilities lie.

Yes, I know that legal language is tedious. And reading a synchronisation contract is not what most of us want to do or are trained to do. Especially late on a Friday afternoon with play-off looming.

But beware the synchronisation licence small print

Reading, not even between the lines on a license, we come across this sentence ‘We have the rights to grant you this license except for …’ And then it goes on to list a variety of reasons why. If it goes wrong, they will hold up their hands and say, ‘Not guilty, not our problem, here is your fee back.’ But that won’t go near what it costs to pull a commercial off air if the paperwork is not right.

What is key in this small print is that it clearly states that the rights granted are not transferable to any 3rd party. The truth is that liability and responsibility lie with the person who has signed the contract, the licensee and the responsibility for the rights granted with the licensor, the rights owner.

A 1st party licence is the key

By far the biggest problem arises if an agency has inadvertently accepted a 3rd party licence. Whereby the licensor, that is the person apparently granting you the licence, is not actually the rights holder. So, here’s the thing with no ifs and buts or excuses.

If the agency does not want to be in the line of fire or the TV producer themselves, the licence should be directly between the brand and the rights owner. This is known as a 1st party licence. But why isn’t the brand the signature on the licences? There are many advantages to working this way. If the brand moves agency, the track stays with the brand. It ensures complete transparency in fees; it takes out any hidden 3rd party mark ups along the way. And if the proverbial hits the fan and the brand ask the agency, ‘Did anybody actually read the small print on this music contract?’

The answer should be obvious. You did!

The truth is, ask most brands and they will tell you that procurement/licensing of music is handled by their agency. Often contracts bypass the brand completely. They rarely even get sight of their synch licenses, let alone the terms or the fees being charged.

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