It's (Not) Britney, Bitch! – Issues in Music Licensing for Biopics

If you somehow have missed the beautiful disaster that is Britney Ever After on Lifetime, fear not. James Corden, host of The Late Late Show with James Corden on CBS, provides a perfect review of the ‘unauthorized’ cinematic masterpiece. Like many music superstar biopics before it, Britney Ever After fails miserably when it comes to actually highlighting the music that is central to its main character’s story.
This isn’t exactly the fault of Lifetime, or the company producing the made-for-TV movie. Well, not entirely. A production company is more likely to obtain the necessary approvals for use of original sound recordings or permissions to record cover versions of the hits if the film is being made with the approval of it’s main subject. Unfortunately, that wasn’t the case for Britney Ever After, which was reportedly not supported by anyone connected to its real-life main character.

What’s getting in the way of us enjoying our Lifetime movie with actual Britney Spears songs? One word: Copyright.

Basic Copyright Rights

Copyright law in the U.S. provides a “bundle of rights” that the owner(s) of a creative work can utilize in exploiting, or making money off of, the fruits of their labor. 17 U.S.C. § 106 lists a set of exclusive rights:

  1. Reproduction of the work;
  2. Creation of derivative works;
  3. Distribution of the work;
  4. Public performance (for literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works);
  5. Public display (for literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works); and
  6. Public performance by digital audio transmission (for sound recordings).

A copyright owner can license, or temporarily transfer, to third parties any or all of these six rights by way of a contract or agreement. The licenses are typically either exclusive, meaning that third party is the only person getting this license, or non-exclusive, meaning the owner is able to give the same license to other third parties.
When it comes to music copyrights, there are additional considerations within U.S. copyright law that govern how works can be protected and controlled. An important distinction to note is that there are two separate aspects of a musical work that are each entitled to their own copyright: i) the musical composition (often referred to as the publishing); and ii) the sound recording (the particular recorded version of a song or work). For music biopics, its important to understand the differences between compulsory, master use, and synchronization licenses and which of the two copyright interests are being licensed.

Compulsory Licenses

U.S. copyright law allows for anyone to record their own version of a song. This is what allows us to have Spotify flooded with cover versions of Adele and Taylor Swift, despite their full albums sometimes not being made available upon their initial release. There are a few limitations when it comes to a compulsory license. One such limitation is that the license is only available following the public distribution of the work within the U.S. “under the authority of the copyright owner.” This means that if a song leaks and isn’t officially released, then there is no compulsory license to record an acoustic version on your own. Another limitation is that a new musical arrangement of the original composition can only be created to the “extent necessary to conform it to the style or manner of interpretation of the performance involved.” Basically, don’t try to create a derivative work under a compulsory license since that right is separately recognized under Section 106, as pointed out above.
Another important distinction with compulsory licenses is that they don’t cover the rights to soundtracks, or as the Copyright Office says: “those accompanying a motion picture or other audiovisual work.” The U.S. Copyright Office provides a nice overview of compulsory licenses in their published ‘Circular 73’ available in PDF format via their website.
It’s also important note that mechanical royalties to the publishers/songwriters must still be paid for sales, downloads and streams that occur when sound recordings are released utilizing the compulsory license. Typically, these are handled by a license through the Harry Fox Agency (“HFA”) or directly with the music publisher.

Master Use vs Synchronization Licenses

As discussed above, there are two underlying copyrights to be concerned about when dealing with music copyrights: the publishing and the sound recording. It follows then that when it comes to using copyrighted music in film, television, or other audiovisual works, there are two types of licenses that must be obtained before moving forward.
A master use license grants permission for the use of a particular sound recording. This means that if Lifetime wanted to use the original “…Baby One More Time” sound recording performed by Britney Spears, they would have to obtain a master use license, typically from the record label, that allows for the song to be used in the movie.
A synchronization license, or synch/sync license, grants permission for the use of a musical composition. A synch license is typically misunderstood in the entertainment industry to be the only license needed when including a song in a film or television series. However, it’s only one piece of the two-part puzzle necessary for bringing an original version of a sound recording to the big or small screen. Just remember when someone says they need a “synch deal” that you clarify what exactly they’re trying to do!

Where It All Went Wrong For Britney Ever After

It’s safe to assume that the producers of Britney Ever After would have been required to secure, at a minimum, synchronization licenses from the publishers or owners of the musical compositions if they wanted to re-record their own version of famous Britney songs. However, it’s clear they were unable to successfully negotiate a license for the use of those rights. It’s also fair to assume that if they couldn’t get the synchronization rights, they wouldn’t even bother with the master use license (most likely negotiated with Britney’s record label, Sony Music) since a master use license is useless without the synch rights.
It’s easy to see after watching Britney Ever After that producing a biopic about a musician is better off being produced with the permissions or approval of the people controlling the rights to the music catalog. A recent example is the success with BET’s The New Edition Story three-part mini series which was co-produced by five of the band’s members. On the other end of the spectrum is another Lifetime music biopic that focused on the late princess of R&B Aaliyah. The movie resulted in major backlash from not only family members, but also music industry producers such as Timbaland.
Even then, there are alternatives to telling a story without the original music. Take the Broadway musical Dreamgirls as a prime example of a musical loosely based on the story of Diana Ross and The Supremes rise to fame. They successfully crafted a compelling storyline with original music that won six Tony Awards and two Grammy Awards during the original Broadway run, as well as a Golden Globe Award and two Oscars for the film adaptation.
I don’t think we’ll see any film or music industry accolades being awarded for Lifetime’s Britney Ever After, but we may see some nods coming from the Razzies.

One response to “It's (Not) Britney, Bitch! – Issues in Music Licensing for Biopics”

  1. Andrew B Avatar
    Andrew B

    Thanks for sharing this article. TL Brown Law