With the arrival of the most important film awards, the Oscar Awards, our screens are filled with the most outstanding films of the year. In these films, we can find an endless number of songs used in the audiovisual production as an essential element. These makes us aware of the importance of music within the audiovisual industry.
One more year, this Gala is celebrated coinciding with the golden age of video on demand platforms such as Netflix or HBO, so the impact of music has become a key element to attract the viewer and ensure the success of new productions. Undoubtedly, we all have in mind the original songs that make up the soundtrack of the movies The Godfather or Interstellar; besides, who does not remember the intro of Game of Thrones or the series Friends?
Among the most relevant musical aspects within an audiovisual production we find it essential to differentiate between two concepts that are often confused: the synchronization of music and the original soundtrack. In this article we will explore the differences between the two and how they affect the intellectual property rights at stake in the creation and production of the audiovisual work.
In short, songs are present in audiovisual productions mainly in two ways: as an original soundtrack or through the synchronization of pre-existing musical compositions.
When a song is created especially for an audiovisual work, it is an original soundtrack and its author, in accordance with Article 87 of Royal Legislative Decree 1/1996, of April 12, 1996, approving the revised text of the Intellectual Property Law (hereinafter, IPL), shall be considered the author of the audiovisual work together with the director-producer and the creator or adapter of the original script.
Therefore, the author of the original songs that are part of the soundtrack of an audiovisual film will have all the rights that correspond to him as co-author of the audiovisual work, . That is to say, moral rights (among them, the recognition of his condition of author or to demand respect for the integrity of the work) and economic rights (reproduction, distribution, public communication and transformation).
On the other hand, when the musical compositions are not created especially for the work and are incorporated into the audiovisual production, either a fragment of them or in their entirety, we are dealing with what are commonly known as synchronizations.
The author of the synchronized songs shall not acquire any rights over the resulting audiovisual work, without prejudice to the rights he/she holds as the author of said musical compositions.
In both cases, the rights over the songs are acquired by the audiovisual producer, but with different scope.
The IPL defines the audiovisual producer as the natural or legal person who has the initiative and assumes the responsibility for the audiovisual work. Therefore, he/she will be in charge of acquiring all the exploitation rights or license of use over those elements protectable by intellectual property that are necessary for the proper production of the series or film.
In the case of a song created especially for the audiovisual work, the producer must enter into a production contract with its author, which entails the assignment of the exploitation rights of the song by the author in favor of the producer in exchange for remuneration.
If the producer wants to incorporate a song that has already been released, he must obtain the express authorization of the author to perform a musical synchronization of the work. In other words, a synchronization license will be required, an agreement whereby the holder of the rights over the compositions allows the inclusion of these or a fragment thereof in the audiovisual production.
In this case, the producer must make sure that the composer has no exclusivity commitments with third parties, i.e. with a record label, because, if so, the record company will be in charge of authorizing or not the synchronization of the audiovisual work.
In short, from a legal standpoint, it is essential to be aware of these differences and to ensure that appropriate licenses are obtained from rights holders for the use of music in films and other audiovisual works.
If you have any doubts about the use of licenses for your audiovisual production, our team of specialized lawyers can help you. Contact them here.
Lawyer in the area of intellectual and industrial property.
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