This is something I wrote that never got published.
The challenges of music licensing (And what really happened with “Empire State of Mind”)
By Michael Boo
Music licensing seems like an increasingly annoying problem for corps. Just this past season, Madison Scouts’ popular closer, “Empire State of Mind” had to be blacked out on the DCI DVDs because the corps couldn’t secure mechanical licensing rights. (More about what really happened later.)
DCI corps aren’t the only entities running into music licensing difficulties. Last month, Burger King had to pull a commercial with singer Mary J. Blige over rights and earlier in the year, former presidential candidate Newt Gingrich was sued by the owner of the “Rocky III” theme song, “Eye of the Tiger,” for using the work without permission at campaign rallies.
A brief history of how we got to where we are
The way music is produced has changed dramatically since digital media has taken over. Madison Scouts’ arranger Robert W. Smith states, “The record companies lost the keys to the kingdom as soon as the first CD was pressed. It wasn’t all that long ago that Napster and other file sharing services were under attack for causing record companies to lose a lot of money.”
But now, according to Smith, the music companies are “almost giving away the music,” making their money through concerts and merchandising…even receiving a share of the beverages sold at concerts.
Much more so than before, licensing is a cash cow for the holders of music copyrights. In DCI’s earlier years, corps didn’t have to worry about licensing and didn’t pay the statutory rate for mechanical licenses. Corps have gone from barely being a blip on these companies’ radars to becoming very much a part of their income stream. (Popular speculation that the move from G bugles to B-flat horns was responsible for increased licensing issues is an unfounded myth.)
While corps must receive permission to arrange a piece of music, mechanical licenses are not required for live or audio broadcasts. However, they kick in once a performance is recorded for sale to the public. (Why is it called a “mechanical” license? The name originated from the use of mechanical machines that used to copy the recordings.)
Additional problems arise with synchronization licenses, which are required when pre-recorded audio is fixed to a moving visual image…something that occurs in television shows and commercials…and DCI DVDs. Such a license is not required for live performances, which is why those who attended DCI’s “Big, Loud & Live 7” Quarterfinals broadcast were able to enjoy watching Scouts’ “Empire State of Mind” in its entirety.
That is where things become more difficult for those requesting a synch license. A publisher has the right to say “no” for whatever reason. Which leads us to…
What really happened with “Empire State of Mind”
Until now, drum corps fans blamed a variety of sources as the problem for why Madison Scouts couldn’t obtain the synch rights to “Empire State of Mind,” which resulted in the blackout on the DVDs. Rap artist Jay-Z was often blamed for this, as he is the original recording artist.
“In our case,” according to Smith, “State Farm Insurance knew well in advance that on 9/11/11, they were going to put out a nationwide television commercial using ‘Empire State of Mind’ as the central statement, with school kids singing the song at a New York City firehouse. It was in the best interest of the insurance company to obtain exclusivity and they paid a lot of money to get it. If someone else in the popular media had come out using the piece, it would have lessened the impact.
“I tried assisting Scouts by using my channels in the publishing industry to get the synch rights, but I kept getting the same answer. When someone turns down a request for a synch license, they just say ‘no’ and that’s it. The reason for our problems became abundantly clear the moment I saw the commercial on September 11, 2011, understanding why utmost confidentiality had to be maintained. Generally, such exclusivity lasts a year and is so expensive because the publisher can’t make money from anyone else during that time.”
Madison Scouts Executive Director Chris Komnick recounts, “By the time the publisher gave us the definitive ‘no,’ we were already into May. We made the decision that the music in the live show was more important than the DVD and so we decided not to change the last third of the show. We thought they were telling us ‘no’ because it was such a hot piece of property at the time. It typically isn’t that hard to get such licensing.
“We are continuing to pursue the licensing of “Empire State of Mind” with the expectation that the synch rights will eventually be granted. We’re hoping that sometime in the future, we can make available a full recording of our ‘New York Morning’ show in conjunction with DCI.”