Can I terminate a verbal synchronization license?

September 25, 2012

Dear Music Lawyer,

Last year, I gave a television producer a verbal okay to use my music in a television program. We didn't sign any kind of contract granting a formal synchronization license or specifying a term, and I did not collect a synch fee. We did submit a cue sheet indicating that I retain 100% of both writer's and publisher's shares of the music. More than half of the program contains my background music.

The program is now being picked up for national syndication, and I think I should get a synch fee. I anticipate the producer would be reluctant since I already gave him the okay to use my music, but do I have the legal right to refuse to let them use my music any longer for broadcast or syndication without an official sync license? Could I effectively end the term of the verbal agreement?

—Sam

Dear Sam,

Probably not. Verbal agreements are often enforced, and I am not aware of any requirement that a synchronization license be in writing. Accordingly, you are well advised to get licenses in writing to avoid these types of open-ended situations.

If you verbally gave the production company permission to use the music in the program, without setting a fee or giving any limitations as to duration of the license, type of media, territory for broadcast/syndication, etc., then the production company has the right to use the music in the program without payment or any such limitations. Essentially, by saying only "yes, you can use my music in the program," you verbally granted both a no-fee synchronization license (for use of the musical compositions) and a no-fee master use license (for use of the sound recordings) for the life of copyright.

(Note: You could presumably stop the production company from using the music in other programs they develop.)

Fortunately, by submitting a cue sheet of your songs to the broadcaster, you should collect 100% of public performance income generated by the broadcasts directly from your performing rights organization. Depending on the show's popularity, this could be a substantial stream of income. Having your music in a more widely distributed program should also further raise awareness of your music and may lead to increased sales and other licensing opportunities.

Of course, you could always appeal to the production company to "be kind" and pay you a sum of money for the use now since you did not anticipate a national broadcast. Plus, if the production company has plans to further distribute the program (e.g., home video), they may be incentivized to get an agreement with you in writing because some distributors require that producers have errors & omissions insurance policies and those policies generally require written music clearance agreements.

Caveat: Although too detailed for this post, it's possible that you could terminate your verbal licenses 35 years from the date of the grant pursuant to Section 203 of the U.S. Copyright Act.

—Amy E. Mitchell