Are You Experienced? Licensing and Managing Your Music Needs for Experiential Activations, Events and Trade Shows

Guest blog by Richard Kirstein, author of Music Rights Without Fights.

Are You Experienced?

Experiential Marketing is now a key channel for many brands. As highlighted in APR’s July blog post, this complex space has unique challenges for which Marketers must be prepared to ensure successful outcomes. This is especially true for music events involving live performances where captured content is shared by brands and their agencies in varied formats across multiple channels.

Know Your Rights

Almost every use of music in brand marketing requires due diligence and up-front rights clearances. Unlike for most acting or sports talent, music is more complex due to the highly fragmented rights landscape. Most established music artists assign the separate rights in their songs, sound recordings and live performances to different representatives. Frustratingly for advertisers, this creates a tangled web of vendors, each with their own agenda, with whom to negotiate appropriate deals. Unless all the necessary rights have been cleared in advance, the brand is at risk of legal claims and campaign failure.

Who’s On Your Side?

When music talent and rights are bought, who’s brokering the deal on behalf of the brand? Do your agencies handle this themselves or outsource the task to a 3rd party? If the latter, how is the 3rd party remunerated? If it’s by commission, there’s no incentive to negotiate hard.

The Devil’s In The Detail

Let’s assume you want to book an established artist to perform at your event. The show and interviews are filmed with content shared across the brand’s social channels and paid online media. You just broker a deal with the artist’s manager, right? Wrong! Sadly, it’s not so simple.

Even if it’s a “closed” event, these are the deals you’ll need to have in place:

Featured Artist Performance: Usually brokered by artist’s booking agent or their management.

Session Musicians / Backing Singers Performance: Brokered by independent fixer or via featured artist’s agent or manager at rates governed by appropriate performers’ union.

Pop-up Venue Performing Rights Licenses: Temporary venues need to be licensed by the appropriate performing right organisation (“PRO”) depending on the repertoire performed. This could be ASCAP, BMI, SESAC or all three.

If it’s an “open” event where the content is captured and shared, you’ll also need these deals in place:

Artist Waiver: For exclusively signed recording artists, a waiver is usually required from their record labels for the right to film and record their performances.

Publishing Sync Licenses: All songs performed at the event require individual synchronization (“sync”) licenses if they are filmed and shared by the brand or its agencies. These are usually negotiated on a title by title basis by the music publisher(s) of each song. Where the set comprises songs by many different songwriters, there will be multiple clearances to secure with multiple publishers.

Master Sync Licenses: For exclusively-signed featured artists, the brand cannot exploit the live sound recording without a license in place from the appropriate record label, nor will the brand be able to use the captured content (more on that below). Many record labels will insist that their license fee is at parity with that paid to the music publisher(s). This is an upwards-only price equalization device known as “Most Favored Nations” (MFN). MFN should never be offered and should be resisted where possible – This being especially true for non-experiential campaigns such as TV spots where re-records can be commissioned rather than use the original artist recording.

Name, Image, Likeness and PR Rights: These rights may reside with the featured artist, their record label or be shared between the two.

What’s Mine Is Mine

If the above wasn’t difficult enough, the ownership of assets is a further challenge:

  • The brand funds the event including all production & filming costs

  • The artist’s record label will claim ownership of the live sound recording & visual film

Who Needs Whom More?

It’s important to consider, who’s the bigger brand? Advertiser or artist? For superstar artists, it’s just a financial transaction. Whilst you may not be able to negotiate on price, you can negotiate on deliverables – so demand greater face time and/or PR duties. For emerging artists, exposure to your audience is key – so leverage that during fee negotiations.

What Does This Mean For You?

Before engaging an artist, it’s essential that you ask the right questions:

  • Are the artist’s deliverables clearly articulated? Will the artist comply?

  • Who represents the artist for live performances, songs & sound recordings?

  • Is there clarity around total budget? How will this be divided by all the vendors?

  • Will there be a partnership between both the advertiser and the artist or will this just be a transaction?

Music-led experiential campaigns can be a daunting task for brands. Successful outcomes require specialist knowledge in this highly complex area. Look out for APR’s Music Rights Webinar in early 2017 which will help you gain a better understanding of these issues.