Articles & Advice
By Jeffrey Brabec and Todd Brabec
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
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.
| ...film producers
look for professional and disciplined writers who
many times can also produce and record the song
for 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 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.
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 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... |
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 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 favored
nations" credit whereby no other song will
receive more favorable credit size and placement.. |
Screen
Credit.
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.
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.
| The
song will normally be specified as a "work
for hire" with practically all rights and publishing
owned by the Producer. |
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.
| A list of all the
standard songwriter royalties will always be made
part of 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 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.
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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