Music, Money, Success & the Movies: Part Two
By Jeffrey Brabec and Todd Brabec
One of the most difficult types of songs to write for any lyricist or composer is the song specifically written for a movie.
The Song Written For A Film ... The Contract ... Writer Services ... Writing Fee ... Screen Credit ... Ownership and Publishing ... Grant of Rights ... Songwriter Royalties ... Songwriter/Recording Artist
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.
When a producer hires a composer or lyricist to write a song for a film, the compensation as well as the rights of all 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 of any synchronization income from the uses of the song in a 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 the exception of his or her share of royalty income) under an employee-for-hire or work-for-hire contract.
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 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.
The writing fee will be negotiated depending upon whether lyrics, music or both are being contracted for as well as whether a producer and 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).
Most song credits will appear in the closing credits of the film but some writers negotiate single frame credit as well as a "most favored nations" credit whereby no other song will receive more favorable 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.
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.
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".
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.
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 songs 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 company a 50 percent interest in the copyright to the newly created composition. In virtually allinstances 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.
Part Three continues the process of getting your songs into movies and making the right deal, with a special focus on the underscore.
© 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.