Warranties and Indemnification
One of the most glossed over, but legally important, clauses in a composer agreement for television or film is the Warranty and Indemnification clause. In layman's terms, the most crucial parts of this clause are that this is a guarantee by the composer to the producer that the music is original and that the composer will compensate the producer against any claims that it isn't. It makes sense for the producer to get protection for any acts by the composer that result in claims against the producer but whether the composer should be liable if they don't actually do anything wrong is the focus of most negotiations regarding this clause.
While some agreements are better and some worse, a typical clause reads like this:
"Composer hereby warrants, covenants and represents to Producer that it is the sole writer, creator and composer of the Score submitted to Producer hereunder, that the Score is original and does not (in whole or in part) infringe upon the copyrights, proprietary rights or any other rights of any third party or entity; that Composer has the full right, power and authority to enter into this Agreement and shall at all times have the full right, power and authority to transfer to Producer all rights to the Score, free and clear of any claim, lien or encumbrance by any third party; that Composer knows of no adverse claim or litigation by any third party; and that Composer has not made and will not make any use (or allow any use) of the Score which violate the terms of this Agreement or infringes upon Producer's exclusive rights to exploit the Score. Composer agrees to hold Producer (and its parent, subsidiary and/or affiliated companies) harmless from all liability for any breach or alleged breach of the representations and warranties herein and to fully indemnify Producer, its shareholders, officers, directors and employees and its parent subsidiary and/or affiliated companies, successors and licensees and assignees, from any and all losses, penalties, damages and/or expense, including attorney's fees, incurred as a result thereof."
While this boilerplate language taken as a whole can be quite complicated, when broken down, it clearly states what the responsibilities of the composer are to the producer and how the composer is financially responsible in the event of certain types of problems. Let's look at this clause phrase by phrase:
"Composer hereby warrants, covenants and represents to Producer" - this sets out the basic guarantees from Composer to Producer of all that follows in this paragraph;
"that it is the sole writer, creator and composer of the Score submitted to Producer hereunder" - the Producer is hiring a particular composer and wants to make sure that the person hired is the person actually writing the Score. If there is more than one composer that is a formal party to the agreement, they are listed at the top of the agreement with the language "Party A and Party B, (hereafter jointly known as ‘Composer')". Although, in reality, the composer may hire others (credited or uncredited) to assist them in the writing, this makes the composer responsible for the actions of others under his direction. Often, if a composer does hire others, having the other composers sign a Certificate of Authorship will usually comply with this clause;
"that the Score is original and does not (in whole or in part) infringe upon the copyrights, proprietary rights or any other rights of any third party or entity;" - the desire of the producer to have an original score is based upon several things. First, one of the reasons for hiring a composer in the first place is to have a score that is original and unique to their film - that's why you get the big bucks! Second, they want to be able to collect the revenue generated by the score. Third, and most important, they want to make sure that the music in their film is not already owned by some third party, which would require permission and a fee to that third party and would probably also include some restrictions on how the producer can use the music. Using music owned by third parties can not only be expensive, but using it without permission can cause the distribution or broadcast of the film to be stopped. Sometimes, I try to modify this by excluding from this clause music in the public domain andor music specifically requested by the producer;
"that Composer has the full right, power and authority to enter into this Agreement" - this means that the composer has no other legal obligations (such as an exclusive publishing or recording agreement, where his services are already promised to another party) that would prevent him from performing the terms of the agreement;
"and shall at all times have the full right, power and authority to transfer to Producer all rights to the Score, free and clear of any claim, lien or encumbrance by any third party; that Composer knows of no adverse claim or litigation by any third party;" - since most scores are "works-made-for-hire" with the producer owning all rights to the music, the producer wants to make sure that he is actually getting all rights, without the possibility of any claims by an unknown third party. And, since most producers are not musicologists, it is the composer who is in the best position to know if any of the music delivered isn't original and would infringe on someone else's copyright;
"and that Composer has not made and will not make any use (or allow any use) of the Score which violate the terms of this Agreement, or infringes upon Producer's exclusive rights to exploit the Score." - since the producer will exclusively own the score (both compositions and recordings), they want to make sure that the composer has not granted any rights to any third parties in violation of this exclusive ownership;
"Composer agrees to hold Producer (and its parent, subsidiary and/or affiliated companies) harmless" - the composer not only makes these guarantees to the producer who hired him, but to all their affiliated companies, such as the studio, network, other broadcasters, etc. who might be sued in the event of a problem. Remember, those whose pockets are deeper are more likely the target of any claims;
"from all liability for any breach or alleged breach of the representations and warranties herein" - this is one of the most dangerous clauses for composers. It not only makes the composer liable for an actual breach of the agreement but for an alleged breach, which means that even if the composer didn't do anything wrong to breach the agreement, in the event of a claim, the composer is still liable for the costs listed in the next phrase;
"and to fully indemnify Producer, its shareholders, officers, directors and employees and its parent subsidiary and/or affiliated companies, successors and licensees and assignees," - there are those deep pockets again, basically everyone in the potential chain of infringement;
"from any and all losses, penalties, damages and/or expense, including attorney's fees, incurred as a result thereof." - you can easily see that the things a composer could be liable for is a potentially long list of costs, most of which are out of his control.
The liability for an alleged breach is the main sticking point of these clauses. If, in fact, a composer breaches his warranty of originality, he should be responsible for the consequences. But what about if a claim of infringement is made that is ultimately defeated? The composer has lived up to the terms of his warranty but still may be responsible for the costs of defending the claim.
In some agreements, the burden of defending the claim falls on the composer and makes him hire an attorney to argue on behalf of the producer's copyright at his own expense. Given the relative financial backing of the parties, this would seem to be inappropriate. Other clauses give the composer the opportunity (but not the obligation) to participate in the defense of the claim at his own expense.
When representing composers, I try to eliminate the "alleged breach" portion of the agreement, making the composer liable only if there is an actual breach of the agreement. Sometime, if this isn't possible, I try to modify the agreement so that the composer is liable for costs incurred for any breach or claim of breach "adjudicated by a court of competent jurisdiction or settled with the composer's consent, not to unreasonably withheld." This allows the composer to have a say in whether a frivolous claim might be settled at a lesser cost than having to litigate it.
Each production company (and each attorney) has their own version of this clause but knowing the basic meaning of the language can assist both parties in signing an agreement that is fair to each side.