BE INFORMED WHEN NEGOTIATING: AVOID BROAD GRANTS OF RIGHTS
In negotiating with television networks over the use of your music, you should be very aware that the networks are pushing for and are regularly utilizing the broadest possible grant language in their contracts with music providers. While these clauses may appear like harmless boilerplate at first glance, they are a trap that could lead you to granting away far more rights than you ever anticipated and with no additional payment for doing so.
For example, one of the major networks uses language pursuant to which the music provider grants “rights in all media worldwide now known or hereafter devised, whether known or unknown, including, but not limited to, Free TV, Cable (basic and pay subscription), VOD, HDTV, Digital TV and DBS, Radio, Internet (streaming and download), Wireless platforms or Devices (now known or hereinafter devised), with such rights granted in transit and in perpetuity.”
If you enter into a contract containing such broad grant language, you should be aware that you risk granting away all of your exploitation rights in the music at issue. For years, broad grants of rights clauses have been litigated in the Courts, with the grantor usually losing and the grantee usually winning. These cases often involved whether a grant of motion picture rights included video rights (which were unknown at the time at the time of the grant). The Courts often look at this broad language and conclude that grantor clearly had no intention to retain any rights and find that everything was conveyed. This is a result that you obviously want to avoid at all costs.
How do you do it? Some members have some very specific language that they seek to negotiate. Try to be very clear about what you are granting. Also end your grant clause with language such as: “All rights not specifically granted above are reserved to the Grantor.” Years ago, a famous songwriter included that language in a grant he made to a motion picture company to use his music in a film. At the time, videos were unknown. When, many years later, the motion picture company sought to use his music in the video version of the film, he was able to prevent it from doing so based on the retention language. Naturally, an additional and substantial fee was negotiated for the use of the music in the video.
If a network is persistent in its requirement that the broad language be utilized and you feel that you have no choice, at least attempt to make sure that you will receive additional compensation in the event that some new or unforeseen media comes into existence during the life of the grant. For example, try to add a sentence that provides that “Any use of the music in media which is not specifically described herein shall constitute an additional and new use and will require a separate license, to be negotiated in good faith with [Grantor].” While such language may not be accepted, it could possibly result in a higher license fee.
In short, avoid giving your music away for free. Use specific grant language and broad retention language wherever possible.