The synchronisation right

A note before we start: what follows is based on direct experience of the synchronisation right, and on Italian law in particular. For anything that matters, and for advice that actually binds, you need a copyright lawyer.

The synchronisation right is nothing more than the pairing of a piece of music with a moving image. That pairing creates a new work — the fusion of two artistic productions, one musical and one visual — and therefore a different right of use.

That right is held by whoever wrote the music, or by their publisher. Nobody else.

Neither SIAE, the Italian collecting society, nor its counterparts elsewhere collect it. What you pay is entirely at the discretion of author and publisher, depending on the nature, reach and purpose of the project: full freedom to negotiate can mean a high figure or no fee at all (yes, zero — it happens more often than you'd think). There are no rate cards, as there are for live performance or for broadcast royalties. It is, essentially, a private contract.

So what happens when you need music under your video?

As the producer of the visual work, you have to obtain permission to use the track before the final cut and before release. Permission comes from the rights holders, and there are principally three: author, publisher and record producer.

The sensible first stop is the publisher, who usually also decides on the author's behalf under standard agreements. Once you have their consent you go to the producer — the holder of the master: the set of recordings that make up the finished track, the definitive audio that was released.

Let me be clearer, because this is where everyone gets lost (myself included, the first few times).

The author is whoever composes the piece. The publisher handles its commercialisation and collects rights in certain areas. But a piece can exist in many versions: author and publisher may have it recorded several times, with different musicians, different sounds, different studios and mixes. The song is the same. The productions aren't.

And the person cutting a video doesn't want the song: they want that version. Perhaps not the original, but the dance remix, or the one with just an acoustic guitar. Author and publisher give consent as holders of the composition right; the producer of that particular master licenses that particular recording. (The producer can also be the label, and most of the time is.)

That's the general shape. Depending on the agreements between the parties, the whole request sometimes resolves with a single interlocutor.

Which brings us to the question that always comes back: don't you have to pay the collecting society anyway?

You do, but for something else. What you pay SIAE is not the synchronisation fee — which, as we've seen, is a private negotiation — but the fee for the performance of the composition, every time the audiovisual work containing it is performed or communicated to the public. That's paid by the broadcaster airing the video, or the cinema, or the theatre: whoever exploits the use.

Picture the whole artistic production as a pyramid — authors at the base, then arrangers, performers, producers, distributors. Copyright is the responsibility of the tip, of whoever makes sure the work reaches an audience.

That this isn't theoretical is shown by two real cases, both Italian.

In 2013 the Rome Court of Appeal found for the heirs of Pietro Mascagni against RTI: Cavalleria rusticana had ended up under the pictures of the telenovela Terra Nostra, on Rete 4, with no synchronisation licence (judgment no. 5329 of 9 October 2013).

_The Intermezzo from_ Cavalleria rusticana _played by the orchestra of Teatro La Fenice: the music the case was built on._

Four years later the question reached the Court of Cassation, and that's where it closed. Sony Music Publishing had sued RAI over 29 tracks used as the soundtrack of Un posto al sole, and with judgment no. 29811 of 12 December 2017 the Court held that article 180 of the Italian copyright act does not give SIAE the power to authorise synchronisation: it falls outside its institutional remit. It stays the exclusive right of whoever wrote the music.

Translated: the collecting society licence in your hand does not cover your edit. They are two different permissions, and the second one you have to go and find.

Of course, for a few seconds of music under a video you can always hope nobody notices… which is exactly what the people who lost those two cases were thinking.