Articles & Advice

By Jeffrey Brabec and Todd Brabec

PART THREE

The world of the feature film background music composer is not only one of the most creatively stimulating and financially rewarding areas of music, it is also one of the most demanding in terms of musical expertise and training, conducting experience, and discipline in the meeting of rigorous timetables and deadlines...Having a song in a motion picture or composing a score to a film can open up an unlimited number of opportunities and prove to be a lifetime annuity for writers and music publishers.

THE UNDERSCORE The Score.

The underscore, sometimes referred to as the background music score, is the music that makes up the majority of 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 nonstandard 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 has 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 12 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 a 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 costs 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-known composer.

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 all 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-known 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 times. 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 movie 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 the composer and spouse."

Ownership of the Copyright.

...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".

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 from 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 rights 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.

There is a performing right organization (PRO) in every major country of the world with the largest in terms of revenue and royalties, ASCAP, located in the United States.

For most film composers, performing right payments represent their main source of royalty income. There is a performing right organization (PRO) in every major country of the world with the largest in terms of revenue and royalties, ASCAP, located in the United States. These PROs negotiate music license fees with the users of music (television stations, cable, radio, web sites, live concerts, etc.), collect those fees and then distribute them to writers and music publishers based upon surveys of performances in different media. Practically all composer contracts will have a clause requiring membership in 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 organization, 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. organization 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 license 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 has 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 caliber, 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, Terminations 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 has 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.

Part Four discusses music cue sheets and their importance.

Part 1 | Part 2 | Part 3 | Part 4

FAQ: How To Acquire Music For Film | ASCAP Film & TV

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 specializes in evaluating, analyzing, 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 formerly head of business affairs for Polygram Music, the Welk Music Group, and the Arista-International Music Groups, as well as a legal services attorney.

© 2007 Todd Brabec, Jeff Brabec
For more information, check out the book Music, Money and Success: The Insider's Guide To Making Money In The Music Business (Schirmer Trade Books/Music Sales/502 pages) available for sale at Amazon.com, Barnes & Noble, Borders, Music Sales Group and www.musicandmoney.com.

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