Avoiding "Grey Music" When Licensing A Track

We have all been there.  The spot or show is first airing, we have just high-fived, and we think we have locked up the next hottest thing for music only to get the dreaded call from your legal department . . . Houston, we have a problem . . .  So many variations of this call over the years and none fun . . . Your gut sinks to your shoes as the lawyer tells you: The guitarist never signed off on the sync, there was an undisclosed co-writer who had a publishing deal already, the manager wants more money, the track is actually not new or unique and lives in a few music libraries and has been synced all over town already, or the worst, a dreaded musicology issue. . . so many gut wrenching twists.

The fact is, if you have been in this business for even a second . . . You have been burned on this topic.  For years, commercial music was dominated by composers and major labels/music publishers who know the drill and are extremely buttoned up and professional.  You get what you want, how you want it, and rarely have issues other than the unavoidable musicology issue here and there . . . Cut and dry and limited sync risk. 

 But as smaller record labels and band-driven music web sites have flooded a wave of "grey music" onto the market, web savvy artists have taken a "let's just get it out there" shotgun mentality and often times haven't crossed their t's or even written their i's before the money is on the table.  Worse off, these music websites have done ZERO due diligence on the music, have simply automated the process, lack any real legal or licensing expertise, and then put disclaimers and indemnifications all over their sites to avoid liability. So what happens? Well, its like Russian roulette - sometimes the sync is fine and sometimes it blows up.  No shock there when you have artists who upload their music onto every possible site, they don’t tell their other band members or writers, the websites distribute the music without any regard to whether or not it has been cleared or approved appropriately.  On top of that, when they find a sync, they negotiate rogue deals and will say and do just about anything when a lucrative music sync is on the line . . . simple greed.  The result, ugly and chaotic and, often times, litigious.  

How do you know the music you are syncing is free and clear and not "grey music?"

How can I protect myself and my clients?

The best answer is to simply consider the source.

Here are a few general rules of thumb on the types of music companies to work with and the general risk profiles of each to help you navigate these issues and lower your risks . . .

A. Reputable original music houses have the lowest risk.  Music production companies have professional staff composers and work with musicologists on a regular basis to ensure your track is original and clean.  Safest choice.

B. Exclusive production music and stock music libraries are pretty clean.  These companies either pay for, commission or acquire the rights of the music in their libraries.  Although never perfect, they have legal agreements with the writers, singers and musicians and copyrights on their libraries and, in general, have locked up their music pretty tight.  Very low risk.

B. Known music supervisors and music licensing companies, major record labels and publishers all have lower risk profiles as well.  They almost always have direct relationships with the artists and very tight legal contracts that help protect their sync clients.  Yes, some artists can be difficult when trying to get approvals, their process can be slow and artists can get greedy when they hear the word "sync" (especially on renewals), but generally low risk once your deal is done.

C. Smaller record labels, some risk...the larger independents are as buttoned up as the majors ... But the web tools available these days can make the guy next door an independent record label.  Worse off, unlike major labels, smaller labels typically have more ambiguous rights around syncing ... So beware ... the smaller the label, the dodgier things can get.

D. Aggregators, non-exclusive music libraries and band-focussed websites touting thousands of tracks that are easily searchable that are from bands and artists . . . High risk ... caveat emptor.  Their lack of sync knowledge, lack of legal expertise and lack of artist diligence makes these music tracks a wild card.  Often times, they are tech companies and not music companies - so don't be fooled into thinking otherwise because they hired one or two people from the industry.... Typically, not worth losing your job or client over given the wealth of tried and true music sources available.

After you pick your source...In terms of a “check list” that can help you lower risk...make sure:

A. Every co-writer has read and signed the sync agreement

B. Every band member, musician and singer has read and signed the sync agreement

C. Use musicologists for a final blessing when in doubt

... Hope this was helpful... Always choose wisely, work with professionals and if you get a grey feeling, trust your gut and walk away from a sync that doesn't feel right ... There is plenty of great music out there free and clear!  Happy syncing!