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Composer Agreement Basics
by Steven Winogradsky
Copyright © 1998
In last month's column, I wrote about the basic principles of copyright law in the United States. This month, I want to present an overview on the key terms of the typical composer agreement with a motion picture or television production company. Future columns will focus on many of these points in more detail.
The agreement between the production company and composer sets out the basic relationship, duties and obligations of each party. Generally, it assigns complete ownership and control of the music created to the producer, subject to the composer sharing in the royalties earned from exploitation of the music. These royalties would come from the music used within the context of the production and by exploitation of the music by the producer licensing it to others.
The services to be provided by the composer should be spelled out completely. In some cases, the composer will only create the music for the production and leave it to others to orchestrate, conduct, produce and record the music. Usually, however, the composer will perform all of these functions, under the direction of and in consultation with the producer. Included in these services may be producing the soundtrack album from a motion picture.
As music is usually done in post production, the composer's services generally begin after the principle photography is complete unless there are scenes in the production where the music is an integral part, such as a concert or nightclub scene where singers or musicians are on camera. As such, the term can usually be clearly defined from the date of "spotting" the picture (reviewing the production with the producer and director to determine where and what kind of music will be used) until the music is dubbed in to the final edited version. In cases where music must be pre-recorded for use in the film, the term may be designated to cover both situations.
Compensation for a composer is determined by the budget of the film and the composer's stature in the industry. Fees range from zero to $750,000.00, depending on the situation. This is merely a creative fee and does not cover the costs of recording, such as studio time, engineers and mixers, rental of recording equipment and recording tape. Payments to the composer are usually staggered and triggered by certain events in the composing and recording process taking place. Payments to third party musicians, orchestrators and copyists as well as studio time and engineers are made by the producer.
Sometimes, however, a composer will deliver a "package deal", where the composer assumes all responsibility for payments to musicians, copyists, orchestrators, studio time, instrument cartage and rentals and recording tape. Any overages are their responsibility and any money not spent is their compensation. This is more common with scores consisting primarily of synthesizers, since many composers have their own equipment and recording facilities.
If the composer is required by the producer to travel outside their local area in order to record the music, they are usually given first class air fare and a weekly per diem to cover their expenses.
Whatever the nature of compensation, the composer's fees include any payments they might receive as a result of their services being under the jurisdiction of the American Federation of Musicians (AFM). Upon completion of the composer's duties, the producer's only responsibility is to make the appropriate payments. He is under no obligation to actually utilize the music in the production. More than one music score has been dumped by the producer and a new one created instead.
Perhaps the most important part of the typical composer agreement is the section whereby the parties agree that the music created is deemed to be a "work made for hire". Section 101 of the Copyright Act of 1976 (17 U.S.C. §101) defines a "work made for hire" as:
(2) a work specially ordered or commission for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work....if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
This gives the producer complete control and ownership of the music and recordings created and all associated elements, such as musical scores, instrumental parts, outtakes, etc. This allows the producer to use the music in any way he sees fit, including exploiting the music in the production in any and all media now known or hereafter devised, including trailers, advertisements and other types of promotions. It also eliminates the reversion of any ownership rights to the composer, as might be the situation in the case of a typical songwriter agreement. In addition, the producer may employ others to change, modify or re-write the music to meet his needs in the event that the composer fails to do so. In many cases, the producer will require language allowing it to use the music in prequels, sequels, television programs based upon the film or in any other production produced by this producer at no additional fee for the composer.
The producer has all the powers of a music publisher, such as licensing of the music to third parties and collecting most types of royalties. He may also assign his rights to an actual music publishing company to administer, subject to the composer receiving their share of royalties.
There may be occasions, however, where the producer will allow the composer to keep all or part of the publishing of the music. This is usually done on a low budget project in lieu of compensation to the composer. This allows the composer to receive all or part of the publisher's share of royalties from all sources and to exploit the music in other ways. Certain restrictions may be placed on the future use of the music so as not to compete with the producer's film. Irrespective, however, the composer is entitled to collect the "composer's share" of public performance royalties from their performing rights society (ASCAP, BMI or SESAC) directly, without any interference by the producer.
If a soundtrack album from the film is released, the composer would normally be entitled to royalties for the use of their music or their services in connection with creating the music. If his underscore is included, the composer is considered the artist and record producer and would receive a royalty based upon the retail sales price of the album. If there is another artist on a track produced by the composer, only a record producer royalty would be payable.
The composer's soundtrack royalties would be subject to the same terms and deductions that the producer receives from the record company. In addition, no royalties would be payable to the composer until a negotiated portion of the recording costs and "conversion" costs are recouped. Conversion costs are those incurred in transforming the music recorded for the production into a format suitable for release on the soundtrack album. This usually involves editing, re-mixing, any studio costs for each and any additional talent payments.
The composer must warrant that the music created for the film is original and indemnify the producer against any costs incurred by the use of the music, including any claims based upon a breach by the composer of these warranties. Some agreements will contain language making the composer indemnify the production company upon “breach or alleged breach”. While the composer should be responsible for any breaches of his warranties and representations, a mere claim of breach should not be sufficient for him to bear the costs of defending against the claim. More appropriate is language holding the composer liable for cost incurred for a “breach reduced to judgment by a court of competent jurisdiction or settled with Composer's consent, which shall not be unreasonably withheld”.
If the composer has a "loanout company" that employs them for these types of services, the agreement is actually between the producer and the lending company. As such, it is important to have a letter of inducement directly from the composer to the producer. This letter states that the composer agrees to abide by all conditions of the composer agreement, will look solely to the lender for compensation and that if the lender should cease to exist, the composer will become personally responsible for all obligations.
The agreement also includes a provision that, in the event of a breach by the producer, the composer's remedies are limited to damages at law and not equitable relief in the form of an injunction inhibiting or preventing the exhibition or distribution of the project. This clause is crucial because it would disastrous to the producer for a composer paid $200,000.00 to be able to enjoin the release of a $50,000,000.00 movie
The Certificate of Authorship reiterates the "work made for hire" language and also waives all moral rights, or "droit moral". It also reinforces the warranty of originality contained in the primary agreement.
Lastly, there should be a schedule of royalties to be paid to the composer in the event that the music is exploited by licensing its use to a third party. These royalty provisions are similar in nature to those between a songwriter and a music publisher and define the various types of exploitation and the composer's share of each source of income. Since the producer/publisher collects all license fees and royalties (except the composer's share of public performance royalties, which are paid directly to the composer by their performing rights society), there is also an accounting provision that states how these royalties are to be paid and an audit provision on the composer's behalf.
Composer agreements can range from 4 to 20 pages but, for the protection of both parties, all of them should contain the basic terms listed above. As these are legally binding agreements, you are encouraged to engage competent legal counsel before entering into this type of agreement.
(1) a work prepared by an employee within the scope of his or her employment; or