Navigating New Rights Challenges with Online Concerts

The surge in sync licensing requests that has accompanied the pandemic has left music publishers “slammed.” That’s what Jaime Leighton has observed in her recent contacts with rights-holders as part of her role as production administrator and webmaster for Conspirare in Austin, Texas. Sync licensing has been “a big topic” for at least 10 years, notes a specialist in the field, Aaron Green of Minneapolis-based Easy Song Licensing. “But now,” he says, “you have more people coming out of the woodwork asking questions about YouTube or e-tickets or uploading videos to their website or doing live streaming. It's been insane.” In its work with choruses these days, ECS Publishing Group of St. Louis is spending more time answering questions about sync licensing than anything else, according to president Mark Lawson. Most of the inquiries boil down to this, he says: “‘I want to do this program, but I don't know how to go about getting all the licenses I need. What do I need to do?’”

If you want to distribute a streamed concert, a virtual choir performance, or any video that includes copyrighted music, you will need a synchronization, or sync, license—so-called because, in addition to concert videos, it applies to video or film productions that use music as a soundtrack, such as movies, TV shows, and commercials. Choruses accustomed to the relatively straightforward experience of mechanical licensing, which grants rights to distribute CDs and downloadable audio, soon learn that sync licensing is a different story. It follows no standardized process. The situation has Belinda Burnworth, an ensemble director for the St. Louis Children’s Choirs, feeling as though she’s “flying in the dark, just kind of navigating on my own.” A former lawyer, Burnworth has assumed a leading role in the choirs’ sync licensing efforts. It feels a bit like teaching music, she muses, in that “you're sometimes the only person in the building that's doing what you're doing.” Her legal background prepared her to “dig and research,” and that's the biggest part of the job, she says. On top of that is the worry that some of the hard work will be in vain. Of all the challenges choruses face in the COVID-imposed new normal, music licensing is “the absolute hardest one” says Conspirare managing director Ann McNair, “because so much of the process is out of our control. We are at the mercy of the rights holders, and some of them do not want to give permission.”

Filing Your Applications: The Key Questions

The reason there is no straightforward way to approach sync licensing is that each rights-holder has different criteria for granting licenses and determining fees. Many publishers provide online forms that specify what they are looking for. “Sometimes they want to know how much you're charging for tickets, and how many tickets you're likely to sell,” says Dan Mayo, managing director of artistic administration for the St. Louis Children’s Choirs. “Some want everything ironclad; some don't care at all.” No matter what their process is, the best preparation is “knowing how you're planning to use the content, having a very clear picture of what you're asking for,” says Mayo.

To start, be ready with answers to the questions rights-holders are most likely to ask (and a few that you ought to be asking yourself). And be aware of how your answers may affect your rights application. Here’s a list:

1. What music do we want to license?

The question may seem obvious, but consider the possibility that you won’t be able to license all of your preferred pieces. Certain popular tunes, such as John Lennon’s “Imagine,” are non-starters, says Green. “It's owned by a fantastic company, but that's one of those that just doesn't get released to anybody.” You might be quoted a fee that exceeds your budget, or other issues might arise. In the process of planning video distribution of the Pacific Chorale’s 2020 holiday concert, president and CEO Andrew Brown realized “we probably weren't going to be able to get ahold of a [recent, unpublished] arrangement or maybe get the access to the sync rights” for some of the group’s initial choices. In cases like that, you might decide to go after rights for another, easier-to-get, piece—as Brown did—or stick with your first choice, but either way it’s wise to have a back-up plan ready.

2. Have we cleared all the other necessary rights?

You may need more than sync licenses to produce the program you’ve planned. If, for example, you are working with union instrumentalists or stage crews, says Brown, they may have a stake in the distribution of your video. Depending on the distribution platform you choose (see Question 4 below), you may have to get public performance licenses for each piece, as a concert venue would most often do for an in-person performance. If you’re creating a new arrangement, you’ll need a print license. In addition to your chorus’s live performance, you may want the video to include an original sound recording, in which case you would need a master use license from the record label or recording artist. “The sync rate becomes one piece of it, but all those other pieces have to sort of be checked and aligned before you even get to that,” says Brown.

Step 3: Who are the rights-holders we need to contact?

For Brown, one of the bigger surprises of the rights-clearing process is the amount of research this step can take—the digging that Burnworth was talking about. While it is a simple thing to locate a publisher’s name and contact information on a choral octavo, things “got a little muddy” researching ownership of some the pop pieces on the Pacific Chorale’s holiday program. Brown started with the online ASCAP/BMI database, which identifies ownership for what the companies claim is “the vast majority of music licensed in the United States.” He and others agree it is an invaluable resource, but it does not always provide definitive answers.

“Where we thought the rights for an arrangement were held by one company,” Brown says, “it turns out it was held by another one—or not at all.” If you want to secure the rights to those pieces, you have to approach each publisher individually. In some cases, that may suggest a change of plans, as it has done for the Boston Children’s Chorus and director of artistic planning Robbie Jacobs in their video production during the pandemic. “When we saw that there were certain songs that had eight or nine writers or eight or nine publishers involved, we chose not to perform those because suddenly, one song is nine times the amount of work.”

4. What distribution platform do we plan to use?

YouTube is a common choice for video distribution because, as McNair notes, “it’s free and you don't have to have an account.” Another factor for Conspirare is the ability to embed the YouTube link in content management systems such as Constant Contact and WordPress. Lawson points out another advantage: “ASCAP and BMI both have licenses with YouTube, and they collect the performing rights.” They also have agreements with Facebook and Instagram. But these platforms’ systems for monitoring rights compliance can have unintended consequences. YouTube’s digital fingerprinting system, designed to detect and block unauthorized use of copyrighted material, sometimes makes mistakes. In the past year, YouTube has flagged performances by the Oakland Interfaith Gospel Choir “that we have properly licensed,” according to interim executive director Maren Amdal. The blocking is automated, so “there's often not a way to argue,” she says. “There's not a way to say, ‘But we own the license!’” Brown and the Pacific Chorale didn’t want to risk a shutdown with their holiday program, an important fundraiser, so they went with Vimeo as their platform (and included the music uses in their annual reports to the performing rights organizations).  But be aware that “there are certain websites that some publishers will not allow,” says Green. Universal Music, which holds rights to some of the world’s most popular music, will not allow Vimeo. “It's just one of their policies.”

Whatever you choose, be aware, too, of the likelihood you’ll want to repurpose the video you’re producing, distributing it via a different platform. It may be worth getting the additional rights up front, as the St. Louis Children’s Choirs did in order to re-use performances to create classroom educational content. “It's easier to make the initial ask and have everything in it than to go back and forth with them later,” says Mayo, “because they have every right to charge you more. You might as well get a lump sum deal at the beginning.”

5. How much are we going to charge viewers?

Whether you charge admission to your virtual concert hall is a decision likely to be driven by your chorus’s mission and overall revenue strategy. But it has implications for the video production budget line. Publishers like Lawson “have to figure out what to charge [choruses] for the sync license based upon how much money they're going to make.” When composer Andrea Ramsey gets a call requesting sync rights for a piece to be used in a ticketed online event, she tends to ask, “What do you feel comfortable sending my way as a nod to my music helping to generate those things? Some composers are charging substantial amounts, which is well within their right, and some composers aren’t charging at all—so I just tried to strike a middle ground.” Choruses that offer free audience access tend to find that licensing becomes free too. The Boston Children’s Chorus hasn’t charged for any of its virtual concerts, Jacobs says, “and I think that that probably has made quite a significant difference to rights-holders.” On the other hand, the St. Louis Children’s Choirs scheduled two ticketed online performances this season, and Mayo reports some publishers waived their fees, nonetheless.

6. What kind of look and branding will we give our virtual performance?

As Conspirare’s webmaster, Leighton has become well attuned to this question. Rights-holders “want to have a clear picture of what the artistic product will look like,” she says. “Will it have live scenes? Or will it be animations or hand-drawn illustrations? Where will our logos be shown?” They ask because, she says, “this is a way for them to make sure that the project is going to align with their values.” It’s also a way to gauge the revenue the project may bring you. “Of course you're going to mention your website,” Green says, “but how are you doing it? Are you telling people to buy merchandise or your album or your latest tour?”

7. How long will the video be available?

The longer it stays up, the more it’s going to cost. As one publisher told Mayo, “‘One month free, don't worry about it. If, however, you want it longer, let us know.’”

Closing the Deal: Submit Your Applications, Follow Up, and Negotiate

Once you’ve answered all of the rights-holders’ questions and sent in your licensing application, be prepared to wait. Burnworth says it may feel as though the paperwork has gone into “a black hole,” so she’s used to making follow-up phone calls. “When you talk to a real person, you get a variety of responses,” she has found. “Some organizations wanted $300 or more for half of a song, and others would say, ‘Oh, you know, how’s $25?’” In their defense, it’s not easy to figure out what’s fair. One way at it, says Lawson, is to look back at what the chorus has paid for a public performance license of the same piece and charge the same amount for a sync license.  Because, as Lawson observes, “more and more of our income is going to have to be from the digital sources,” publishers may be less and less likely to waive fees, especially for ticketed video productions. Ramsey notes that sheet music sales have “dropped considerably, so as these requests come in, composers like myself are really grateful for that added income.”

In his dealings with choruses that have no previous experience in music licensing, Green says sticker shock is their “number one” reaction at this stage. Mayo has learned to expect fee quotes that are extremely high when asking a large corporation for rights to a movie tune, for example. But he and Burnworth “have found that you can go back and negotiate a little bit and say, ‘You know, we're under such a tight budget, a really small company. Is there any wiggle room?’ And they have often brought the price down significantly.” If they won’t do that, Leighton recommends you look for other concessions, like lengthening the term: “Maybe they'll say, ‘I can't come down on the fee, but I can go for a year instead of six months.’”

One of the stickier budgeting challenges you may contend with as you settle your licensing agreement is something called the “most-favored nations” (MFN) clause. Let’s say Publisher A grants you a sync license for $100. Later on, you agree to pay Publisher B $200 for rights to another piece you want to use in the same program. If there’s an MFN clause in your agreement with Publisher A, you owe that publisher another $100. Choruses “start negotiating their contracts and then realize, ‘Oh, this is getting really expensive,’” says Lawson, and then they remove the costliest pieces from their program repertoire. For its virtual concerts this season, VocalEssence took a unique approach to the problem. Aiming to make licensing costs predictable and, at the same time, compensate composers equitably for their work, the Minneapolis chorus decided to create its own sync licensing agreement, proposing the same terms to each of the rights-holders it approached. The fee language in the agreement promises that VocalEssence will pay each rights-holder a percentage of its ticket revenue. “Publishers have been amenable to that,” according to production manager Ethan Johnson, although a few have wanted to use their own forms, and others have asked to change a clause or two. The standardized terms have helped him make initial approaches efficiently, although Johnson notes that the fee calculation has been staff-intensive.

Tailoring Your Approach: Do It Yourself or Hire it Out?

Having a sense of the knowledge and effort required to clear sync rights for a digital music production, you are in a position to tell whether your staff can manage the task. The decision boils down to two questions: Can you easily identify rights-holders? Do you have relationships with them? If the answer to both questions is yes, you may want to keep the work in-house. If not, you may want to outsource it—if you can afford to do that. If both answers are “yes and no,” you can do it both ways. In our sample of six choruses, two managed the process themselves, three did it both ways, and one took an altogether different approach.

Because VocalEssence draws so much of its repertoire from sources it knows very well, both publishing houses and individual composers, Johnson says “we knew we could rely on our network” as they did the upfront research and crafted their agreements. For St. Louis, Burnworth simply likes the idea of managing the process in-house, getting questions answered and deals negotiated first-hand.

The Boston Children’s Chorus made direct approaches to “composers who are our friends” as well as some publishing companies, says Jacobs, but the more challenging work was outsourced “to somebody who really knew how to do it properly,” a lawyer specializing in sync licensing.  “She was great. She had a 100 percent hit rate.” But she was also expensive. In the end, says Jacobs, “it wasn't sustainable for us.”

Conspirare and the Pacific Chorale followed a similar path, but their decisions to hire out some of the work led them both to Green’s company, Easy Song Licensing (ESL). “Easy Song Licensing has been a huge resource for us,” says Leighton. “Their industry connections make it easier for them to be in contact with these larger publishers who may look at us as small potatoes, honestly.”  ESL grew out of an audio production house that included mechanical licensing in its portfolio of services. Green, who is ESL’s vice president and director of sales, says it became a separate side business in about 2008, positioned as “a competitor to the Harry Fox Agency.” Unlike Harry Fox, ESL works with all U.S. publishers, Green says, and it has expanded its services to manage rights clearances of many kinds, including sync licensing.

“It’s 100 percent worth every penny,” says Leighton. Brown especially appreciated ESL’s help with the often-tricky task of tracking down rights to pop arrangements. “It was so worth it to just have them take over the whole process and run with it,” he says.

The Oakland Interfaith Gospel Choir chose a different way to manage the cost of sync licensing. It has simply avoided using music that needs to be licensed. For its online performances, “our artistic director, Terrance Kelly, has simply limited his choices,” Amdal says. “So we've recycled music that we already had licenses for, we do things with explicit artist permissions, and he's written new music. Necessity is the mother of invention, right?” She says one of Kelly’s pieces, “I Won’t Stop Singing My Praise,” grew out of a conversation early in the pandemic that was centered on the question, “how do we start doing compelling music when we know we don't have all the licenses and permissions?” For choir members, says Amdal, “seeing their artistic director inspired rather than deflated by COVID kept them engaged in ways that they weren't necessarily otherwise going to be.”

For choruses not having the advantage of a composer-in-residence, a lesson here might be this: Take a fresh look at your commissioning agreements. When the BCC has commissioned new pieces, says Jacobs, “we've agreed with the composers and arrangers in advance that the performance was going to be videoed, and that inclusive in the commission fee was a release to be able to make a video of the piece.” For Conspirare that’s been a standing practice, says McNair, but under the pandemic removing “this extra layer of unpredictability” has taken on greater importance. Because some of his video production planning was stymied by existing contracts, Brown feels moved to revisit the Pacific Chorale’s agreements with musicians unions and venues. To make new use of old recordings easier to manage, he envisions language that stipulates up front that “we have the right to a future release of this recording, or at the very least we have the right to come back and negotiate.”

Choruses’ increased attention to music rights will remain important beyond the pandemic because it has become clear that the digital footprint they have established thus far is only the beginning. Navigating rights is not easy or glamorous, but it’s worth it, says McNair, because it enables the new “expansiveness of our reach.” And so today choruses must be asking, “How are we engaging in negotiations for these rights, for these opportunities, in a way that makes it easier and keeps it affordable so that we can continue to create a cycle? I feel like we all have to be advocates for those things, even if it's something as basic as licensing.”

Don Lee is the managing editor of the Voice, as well as a media producer, editor, writer, and amateur choral singer who lives in St. Paul, Minnesota. At NPR in Washington DC, he was the executive producer of Performance Today.