Fact Sheet

Music, Money, Success and the Movies - The Basics of " Music in Film" Deals
By Todd Brabec and Jeff Brabec

Part 2

The Song Written For A Film

Most songs written for films produced by the major film studios and production companies are by professional writers living in or near the major film producing capitals of the world (Los Angeles, New York, Toronto, London, etc.). Many of these writers are also recording artists or record producers. Because of the tight time limits of film production and release dates as well as the amount of money invested in films, film producers look for professional and disciplined writers who many times can also produce and record the song for the film. They are almost always hired on a non-exclusive basis whereby the writer can work on other projects during the term of employment with the film studio. Most writers, before they start writing, will be given a description of the film as well as what the song will be about as well as where the song will be in the film.

The Contract

When a producer hires a composer or lyricist to write a song for a film, the compensation as well as the rights of all the parties are set forth in a commissioning agreement. These contracts typically state that the producer employs the composer or lyricist to write a song within a stated period of time in accordance with certain ideas and instructions supplied by the producer. A due date for a demo record is set forth in the agreement, and the producer almost always reserves the right to make any changes. Upon delivery of the song, the writer receives an initial fee (for example, $25,000 for a song; $2,500 for the lyrics) as well as a guarantee of additional future compensation in the form of songwriter royalties which are contained either in the body of the agreement or attached as a separate schedule (i.e. 50 percent of mechanical income earned from record, tape and CD sales; a set rate for sheet music; 50 percent for any synchronization income from the uses of the song in television series, other motion pictures, or advertising commercials, etc.). The writer also normally receives screen credit for the composition. In consideration for the writing fee, the writer usually grants all rights to the producer (with exception of his or her share of royalty income) under and employee-for-hire or work-for-hire contract

Writer Services

The songwriter is employed by the film producer to write a new and original song (or songs) for the motion picture entitled (Name of Picture). The contract will specify whether the writer is being hired to write a complete song or to provide lyrics to new or already composed music. In some cases, the contract will be a joint agreement between the producer, the composer of the music, and a separate lyricist. The "work" shall be written in accordance with such ideas and instructions as producer may supply to the composer and lyricist and shall be suitable, in the producer's opinion, for use in the film. A delivery date for the song and/or the master recording will be set with acceptance of the song conditioned on the sole discretion of the producer.

Writing Fee

The writing fee will be negotiated depending upon whether lyrics, music or both are being contracted for as well as whether a producer or artist is involved. Some of the main considerations as to the amount of the fee are the nature of the production (major studio release, independent studio feature, film festival release, student film, etc.), the stature and past success of the writers, the music budget, the type of use (visual vocal, background, etc.) and the experience and clout of the agent involved. Fees can range from below $1,000 to over $100,000 for a song with additional monies due for a master recording.

If the writer is a record producer or an artist, the fees will normally be separated according to the different aspects of the services (i.e. $120,000 payable - $25,000 to write the song, $45,000 to cover the costs of recording and producing the song and $50,000 as an artist advance against royalties).

Screen Credit

Most song credits will appear in the closing credits of the film but some writers negotiate single frame as well as a "most favored nations" credit whereby no other song will receive more favourable credit size and placement. Occasionally, a major writer/artist is able to negotiate a single frame credit in the opening credits, but such placement is rare.

Ownership and Publishing

The song will normally be specified as a "work for hire" with practically all rights and publishing owned by the Producer. Most major studios and production "companies" own their own publishing companies and assign the film songs to these entities. Some major writers are able to negotiate a retention of all music publishing or a co-publishing deal with the studio or production company but this is the exception rather than the norm. Also, some writers are able to get the song back (a reversion) from the studio if the song is not used in the picture, but again, this is a matter of negotiation.

Grant of Rights

The Grant of Rights provision is usually a very broad one and is similar to the grant given in the composer underscore contract. For instance, a clause might read "Composition is specifically ordered or commissioned by the Producer for use as part of a motion picture entitled, __________, and is a "work made for hire". Producer is the author and composer for all purposes and the owner of all right, title and interest, throughout the world, for all purposes, without condition, restriction or limitation subject only to royalty compensation as set forth herein".

Songwriter Royalties

A list of all the standard songwriter royalties will always be made part of the contract. This is so regardless of whether the contract is a "work for hire" or a standard songwriter or songwriter co-publishing agreement. These include the writer's share of performance, synchronization and mechanical income, sheet music and folio income, digital download income, foreign income, etc. If the writer is also the record producer of the song as well as the recording artist, artist and producer percentage royalties will also be negotiated and set forth in the contract.

Songwriter/Recording Artist

There is a growing trend for film producers to contact songwriters who are signed to exclusive agreements with music publishers to write a song or song for an upcoming motion picture. In most of these cases, the songwriter (who is usually a recording artist) and his or her music publisher will give the motion picture a 50 percent interest in the copyright of the newly created composition. In virtually all instances where the writer is a recording artist, the terms of the soundtrack album will also be negotiated, including artist/producer royalties and mechanical licensing arrangements.

In some cases, the film company will provide the writer with a demo budget so that the producer will be able to hear the newly created composition with further payments due upon delivery of the final composition to the film company and inclusion in the motion picture. For example, the film company might pay the writer to produce a demo recording and make an additional payment upon completion of the composition and another payment if the composition is actually put in the motion picture.

The Underscore

The Score

The underscore, sometimes referred to as the background music score, is the music that makes up the majority of the music used in film. It is the music you hear under dialogue, in chase scenes, in romantic settings and throughout the picture. Sometimes it is an orchestral score using the services of a 50 person orchestra; other times it is a small chamber ensemble, or a solo instrument (i.e. a piano or guitar), or created on synthesizers.

The Feature Film Underscore Contract

The contract that a background scorer signs with a major studio or independent production company is standard for almost all composers in some areas, yet completely negotiable in others. Three of the primary factors affecting whether a standard or non-standard contract is finally settled upon are the stature and past success of the composer, the size of the music budget, and the knowledge, power and stature of the composer's agent negotiating the deal.

The basic areas covered in every motion picture underscore contract relate to:

The types of services to be performed by the composer
The length of time during which they are to be completed
The fee for those services
How that fee is to be paid
Transportation and living expenses
Screen, as well as all types of advertising credit
The ownership of the copyright
Composer and artist royalties for uses of the music outside of the film
The handling of performing rights payments

The following clauses form the basis of any composer contract in the world of movies:

Composer Services

The scorer is hired to compose all of the underscore (and in some cases, individual songs) for the film as well as to arrange and orchestrate the score; to conduct an orchestra to record the work; to produce, supervise, and edit the recording of the score; and to deliver the final, fully edited and mixed master recording in accordance with the film's postproduction schedule. Some composers will do everything themselves whereas others will "farm out" some of the duties (i.e. orchestration, conducting, etc.).

Starting and Completion Dates

As many composers are brought into the film shortly before the film is in post production (the point at which the film had been shot and edited), the time to compose and record the score is usually relatively short (for instance, 4 to 12 weeks) and depends on the post production schedule as well as release date of the picture. In some circumstances, a major composer hired to score a big budget picture will be brought in during the early stages of pre-production or shooting, but that is the exception. A sample contract clause might read "Services are to be commenced on the "spotting date of the picture and completed within 112 consecutive weeks from that date".

Composing Fees

The composing fees paid to a feature film composer vary considerably depending on the past success and stature of the composer; the amount of music needed in the film; the type of music required; the total budget for the film; the total music budget; including the cost for licensing preexisting outside songs or master recordings; whether the film producer is major studio, a major independent, or a minor player in the film world; the size of the orchestra needed to record the score; whether the composer is contracting to bear all or most of the cost of music (a package) or only negotiating the composing fee; whether the film is intended for wide distribution or only a limited release; the standard fees paid by a particular studio versus the fees of other studios; and the skills of the individuals on both sides of the negotiation fence - the studio and the composer's agent. Depending on many of the above factors, composing fees can range from $20,000 for a lower-budget film to in excess of $1,000,000 for a big-budget studio release using the services of a well know composer.

A Sample Clause Might Read:

$150,000 payable as follows:

$50,000 upon the signing of the contract or the commencement of spotting (i.e. the composer, director, producer, film editor, music editor and music supervisor watch the film and discuss where the music should be).
$50,000 upon the commencement of the recording of the motion picture score.

$50,000 upon completion of all composer services as well as timely delivery of the master recording to the producer. The master recording has to be acceptable to the producer.

Package Deals

One of the considerations that dictates the amount of the fee negotiated in the composer-studio contract is whether the composer is assuming responsibility for all costs of his or her efforts (i.e. costs of musicians, recording, copying, orchestrators, instruments, and instrument rentals, cartage, payroll and payroll taxes etc.), or is solely contracting for composing and conducting services. If one is contracting for the whole package, all items that the composer is agreeing to furnish (as well as exclusions) should be specifically spelled out in the contract. Some items that should be excluded include the licensing cost of any music not written by the composer (outside songs), and any re-scoring or re-recording costs required for creative reasons after the delivery of the master recording that are outside the control of the composer.

Screen Credit

The type and placement of screen credit for a composer is a negotiable item. A separate card will usually read "Music by (the composer's name)." The credit can be in the main titles and of the same size as the star, the producer, writer of the screenplay, or director, or it can be at the end of the film in a size somewhat less than the other principals. Most well-know composers are able to negotiate the inclusion of their names in all paid advertising (newspapers, magazines, etc.) as well as on soundtrack albums and all printed publications (sheet music, song folios, songbooks, etc.).

Exclusivity

Most film composer agreements state that the composer's services are exclusive to the producer or company during the entire term of the scoring agreement or exclusive during the recording and mix down of the score per the post-production schedule and non-exclusive during all other time. Other contracts state that the services are non-exclusive but on a first priority basis.

Transportation and Expenses

Many composers either live or have accommodations in the cities where the primary production and recording facilities are located. For certain motion pictures, though, the producer will require the composer to travel. A sample clause might read:

"$1,500 a week while away from Los Angeles for hotel, meals, local transportation, and phone (accommodations and expenses), as well as first-class round trip transportation for a composer and spouse."

Ownership of the Copyright

Practically all composer underscore agreements are employee-for-hire or work-made-for-hire agreements; that is, the musical score is created at the specific request of and under the direct supervision of the film producer. For the all-inclusive composing and services fee, the composer "grants to the producer all rights, title, and interest throughout the world in perpetuity, in and to the work and the recordings." By this grant, the producer owns the worldwide copyright for the entire term of copyright protection. The typical grant-of-rights provision signed by composers gives the studio the exclusive right to publish the composition, to make and sell sound recordings, to execute all licenses regarding the use of the work, to change the work, to combine the work with other works, and to transmit the work by any means now available or to be available in the future. This clause is normally of the broadest nature possible, and it is not unusual to see in the contract the inclusion of phrases such as "all other rights of any nature whatsoever," perpetual and unlimited rights," or "any rights throughout the entire universe whether now or hereafter existing".

Under an employee-for-hire contract ("work for hire"), the producer (normally the movie studio or production company) becomes the author pursuant to the U.S. Copyright Law. Any specific rights to the music that the composer may retain must be stated in writing and signed by all parties. The duration of copyright protection for "works for hire" created on or after January 1, 1978 is 120 years from the year of creation or 95 years form the year of publication, whichever is shorter. The copyright duration for other types of works written on or after January 1, 1978 is life of the author(s) plus 70 years. Through this grant, the studio becomes the owner of all right of copyright and is usually free to assign or license those rights to others.

Composer Royalties

The primary composer royalties, in addition to the composing and services fee contained in most background composer contracts include all or most of the royalties as set forth in the standard songwriter agreement including the right to receive performance royalties, mechanical royalties, sheet music and folio royalties, foreign royalties and synchronization royalties, among others. If the composer is also the producer of the soundtrack album as well as the conductor on the album, additional producer and artist royalties will be negotiated. For example, a sample clause might provide 3% of the suggested retail price of a CD (6% wholesale) as a producer and 7% of retail (14% of wholesale) as a conductor with a pro-ration based upon the number of other "outside" tracks on the CD.

Performing Right Society Membership

For most film composers, performing right payments represent their main source of royalty income. There is a performing right organisation (PRO) in every major country in the world with the largest in terms of revenue and royalties, ASCAP, located in the United States. These PROs negotiate music licence fees with the users of music (television stations, cable radio, web sites, live concerts, etc.), collect those fees and then distribute them to the writers and music publishers based upon surveys of performances in different media. Practically all composer contracts will have a clause requiring membership of a PRO. For example, "the composer must be a member in good standing of a performing right society as well as any other applicable labor organisation, guild, or union that may have jurisdiction".

For composers who are members of societies outside of the U.S. (i.e. a writer who is a member of PRS in the UK, or APRA in Australia, SOCAN in Canada, SACEM in France, SIAE in Italy, IMRO in Ireland, GEMA in Germany, or SGAE in Spain, etc.), they can choose on a per film basis who will represent them for licensing in the U.S. The reason for this is that the U.S. is one of the few countries which has multiple PROs, all of which are in competition with each other. That is why it is important that foreign composers writing for film always specify in their contracts what U.S. organisation will represent them for the negotiation, collection and payment of performing right payments for each film as each U.S. PRO has entirely different payment schedules, both short term and long term, as well as very different owners, philosophy and contracts.

Based upon agreements between societies, U.S. writers are covered for performances of their works outside the U.S. just as foreign composers, by being a member of a foreign society, are covered for U.S. performances of their works.

Finally, many contracts have clauses specifying what would happen to performing right payments "if a broadcasting station (or other user) does not have a current valid licence agreement with ASCAP or BMI or if it becomes unlawful for the performance right society to issue a license or if a station or producer requires a direct or source license".

Disposition of the Score

The producer had no obligation to accept the finished score, to use the score in the picture, to promote or exploit it, to release it on a soundtrack album, or even to release the picture. Further, the producer may request certain changes, deletions, or additions to the finished score prior to accepting it.

Warranties/Re-Recording Restriction

The warranty clause states that the composer is free to enter into the agreement, that the music will be entirely original, that the composer's services and skills are unique and of the highest calibre, and that he or she can grant all rights in the music (including the copyright) to the film's producer. The composer will normally submit a Certificate of Authorship to this effect. Under the re-recording restriction clause, the composer agrees not to conduct, produce recordings, or re-record the motion picture score for anyone else for a stated period of time (3 to 5 years normally) commencing from the date of the delivery of the score and master recordings to the producer.

Instructions and Requests of the Producer

The composer agrees to comply with all of the producer's reasonable instructions and requests, to compose the score to the best of his or her ability, and to consult with the producer as to the style, content, and all other elements of the score. In addition, the composer agrees to meet with the producer or the producer's representatives for approval of the recording budget.

Suspensions, Termination and Force Majeure

Scoring contracts will always have provisions dealing with what happens if a composer is unable to, fails to or is unwilling to perform his or her duties (illness or other disability, disagreements, etc.) as well as if the film company had to interrupt the preparation, production or completion of a film due to reasons beyond the producer's control - a Force Majeure (i.e. fire, war, labor dispute, etc.). The rights of both the composer and the film company are specifically set forth in the contract and can range from suspensions, to holding the production in abeyance for a certain period of time to termination if the condition continues for a specific period of time (i.e. a physical disability that lasts for 4 weeks or a labor dispute lasting for 8 weeks).

Infringements

In the event that any infringement or other claim is made against the producer or the publisher in regard to the musical score, any monies payable to the composer shall be withheld until a final determination is made as to the claim.

Notices and Governing Law

All notices, payments, statements, or other documents are made in writing and are sent either by personal delivery, telegram, telex, telefax, or registered or certified mail. The laws of the relevant state govern the agreement, and any modifications or changes in the agreement must be in writing and signed by all parties.

Music Cue Sheets and Their Importance

After a motion picture has been produced and a final version has been edited, the producer will prepare a Music Cue Sheet.

The cue sheet lists:

All of the music used in the film
How the music was used
Its timing in seconds
The identity of the writers and music publishers
Writers' and publishers' performing rights affiliation
If pre-existing master recordings have been used, the identity of recording artists and record companies

The cue sheet is the cornerstone of all royalty payments for a film. Considering the amount of music used in most films, this cue sheet is usually completed within 30 days after theatrical release, but depending on the producer and available staff, it can be longer.

Some music cue sheets contain scene explanations and dialogue details, but most cue sheets do not have specific scene reference points as to how and when music is used in a motion picture. Most contain only chronological information on the titles, writers, publishers, performance right membership, master recording information, timing (20 seconds, 2 minutes, etc.) and generic usage (visual vocal, underscore, etc.) without detailed scene descriptions.

Since performing right organisations and other representatives of rights holders use music cue sheets to determine how music is used, who owns the music and how much on royalty payments are to be made when a film is aired on television or shown in a theatre, it is essential that a cue sheet be completed accurately. Because a motion picture uses so much music in so many ways (underscore, visual vocals, background vocals, background instrumentals, opening and closing themes, etc.), it is not unusual for mistakes to be made on cue sheets, whether it be false timing, mislabeling of a song's use or an incorrect identification of the writer and publisher and their performance rights affiliation. By reviewing a copy of the cue sheet, the writer and publisher can correct any inaccuracies before the producer distributes the cue sheet to performance right and other organisations throughout the world. To this effect, many background composer contract specifically state that the composer will be involved in the preparation of the cue sheet.

Conclusion

Scoring a film or having a song in a film can provide a lifetime of earnings to a composer or songwriter. In addition to the initial writing or synchronization fee, composers and songwriters can earn royalties from many sources including record, CD and tape sales (mechanicals), U.S. and foreign television, cable and radio performances, theatre performances, downloads, streaming and artist and record producer royalties, among others. In order though to make sure you receive what you are due, you must know what is in the contracts you are signing, the many considerations involved, and the areas that are open for negotiation as well as those that are standard for everyone. Writing for film involves creativity but it also involves a multi-billion dollar worldwide business. Knowledge of how the business works is essential of success in this area.

About The Authors

Todd Brabec is Executive Vice President and Director of Membership for the American Society of Composers, Authors and Publishers (ASCAP), and is in charge of all of the Society's membership operations throughout the world. Jeff Brabec is Vice President of Business Affairs for The Chrysalis Music Group where he specialises in evaluating, analysing, and negotiating music publishing acquisitions as well as negotiating movie, television, video, new technology, and advertising commercial licensing agreements for chart writers/recording artists. Brabec was formally head of business affairs for Polygram Music, The Welk Music Group, and the Arista-International Music Groups, as well as a legal services attorney.

The Brabecs, former recording artists and entertainment lawyers as well as graduates of the New York University of Law, are adjunct professors at the USC Thornton School of Music/Music Industry Department where they teach the business of publishing, motion pictures, television and recording. They are also winners of the Deems Taylor Award for excellence in music journalism and are authors of the book, MUSIC, MONEY AND SUCCESS: THE INSIDER'S GUIDE TO MAKING MONEY IN THE MUSIC INDUSTRY (Schirmer Trade Books/MusicSales/435 pages).

Note: The figures and comments contained in this article are based upon the authors' experiences over the years and with many specific situations. Ranges in fees, as well as comments, do vary based upon individual negotiations and situations.