How can I use a remix of a popular song in my student film?

June 14, 2011

Dear Music Lawyer,

I'm a graduate film student that would like to use a popular song by the "Black Eyed Peas" in my film. Once the work is completed, I would like to distribute it in various film festivals. I'm working with a very limited budget and realize that obtaining rights to that music is nearly impossible. I've opted to use a remixed version of the song instead.

My question is: How do I get permission to use the remixed music from the original recording company? What do I need to get? Do I even need to get permission from the original recording company if the song is remixed?

—Melissa

Dear Melissa,

You might be surprised to find out that a remixed version of a song could be more difficult to use than the original version because there could be an additional layer of clearances involved.

If you are using an existing recording rather than recording your own version of the song (i.e., recording a cover version), you will need to obtain the rights to use (1) the sound recording and (2) the underlying musical composition (i.e., song) embodied in the recording. For the sound recording, you will need a master use license, usually obtained from a record label. For the underlying song, you will need a synchronization license, usually obtained from a publisher.

(TIP: If you are recording a cover version, you will only need to obtain a synchronization license from the publisher. That's why there are a lot of cover versions used in films. It's half as much clearance work!)

Unfortunately, a remix could be at least as difficult to use as the original recording because, by definition, a remix is a derivative work of the original recording. Among the many exclusive rights that a copyright owner enjoys is the right to create derivative works. A derivative work is essentially a work that is based on an existing work. For example, the author of a book has the exclusive right to write (or give permission to someone else to write) a screenplay based on the book. That's because the screenplay is a derivative of the book, and the book is a copyright belonging to the author over which the author enjoys certain exclusive rights.

My initial question would be whether the remix is itself an infringing work. In order to be a legal remix, the remixer would have needed to get permission from the owner of the original recording (probably the Black Eyed Peas' record label) to create the remix. Depending on whether the remixer changed the basic melody and lyrics, the remixer may have also needed to get permission from the owner of the song (probably the Black Eyed Peas' publisher).

Even if the remixer obtained the proper permissions to create his/her remix, the owner of the remixed recording would be unlikely to have the rights to grant you all of the permissions you need to include the remix in your film. For example, the label and/or publisher may have restricted the remixer to audio-only uses of the remixed version and required the remixer to obtain additional consents to use the remixed version in videos. More importantly, the owner of the remixed recording is unlikely to be able to grant any synchronization licenses for uses of the underlying song to third parties such as yourself.

Since you are making a student film and are only interested in a festival license at this point, you might consider sending a request for synch license to the publisher of the song and a master use license request to the label that released the recording you are interested in (again, the original recording may actually be easier than remix) together with a description of the film/specific use and asking each for a gratis (i.e., free) license for your student project and/or film festivals. It might also help to send them a cut of the film in which you want to use the music.

That said, the easiest path is simply to choose a new song.

—Amy E. Mitchell