Q: I am writing a musical with a talented writer and filmmaker. We have agreed to a  60%-40% split on the scriptwriting. Since I am the sole writer for the music and will pay for it’s production, we have mutally agreed that I keep 100% of the music rights. We plan to sell the script.

In part, the Writer Collaboration Agreement mentions that

“… all sequel remake and television spin-off rights, novelization, merchandising, play, radio
and audio rights to the screenplay be shared by…

How can we reword this to clarify our 60%-40% shared rights in the scriptwriting, and my 100% ownership of music?

A: Yes, it is possible, in a collaboration agreement, to separate rights in certain components of the work, so that a composer retains all rights in the songs, while the parties share equally (or according to some other formula) in the other components.  Unfortunately, each situation is different, so there’s no set ‘form’ or ‘standard’ way to handle this wording.

Split-rights collaborations are actually very common, just not in the film industry.  In the world of theatre, it’s usual that musicals are created by a team of collaborators.  Specifically, a book writer (libretist), a composer (who writes the score), and a lyricist.    Generally, they split things equally, but where a song is used outside the context of the show, the composer and lyricist retain the rights to their songs.

It’s important to be very specific about what IS and what IS NOT shared.  For example, in the question presented, what happens to the so-called ‘performance rights income’ collected by ASCAP, BMI or other performance rights societies, when that income is derived from exhibitions of the film?    What about the soundtrack album for the film?  Does the non-musical co-writer still get a percentage of the mechanical royalties?  After all, the album wouldn’t have happened if not for the film, right?

The best advice I can offer here is to prepare a new, comprehensive collaboration agreement that properly addresses this situation.  It’s not always appropriate to just ‘re-word’ an existing contract.  The help of a knowledgeable, experienced entertainment lawyer is essential in this kind of situation, so you can make sure all bases are covered.

One other thing: Since you plan to sell the script, you’ll need to be very careful in negotiating the option/rights agreement to ensure that the songs aren’t covered by the expansive ‘all rights, any media, in perpetuity’ language.    Don’t try to do this yourself.  Even if you have an agent, this situation absolutely requires an entertainment lawyer who ‘understands’ music rights, as well as film deals.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

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Earlier this week,  BMI filed a suit against a restaurant called “Pianos”  where the song “Talk Dirty To Me” by the band Poison  (among other songs) proved a toxic brew.  The suit filed by BMI and a number of copyright holders seeks an injunction, attorneys fees, and statutory damages, which can amount to as much as $150,000 per infringement.

The bottom line rule of thumb is this:  If you’re operating a bar or restaurant,  larger than 3750 square feet, and/or playing music through a system of more than 6 loudspeakers, you need licenses from these Performing Rights Organizations, or you could find yourself on the receiving end of one of these lawsuits.

n.b:  It’s important to recognize that neither the square footage, nor the number of speakers is a hard-and-fast rule.  Courts look to many factors in determining whether an unlicensed use is copyright infringement.  It should also be noted that the cases dealing with smaller establishments have involved radio being played in the business.  Playing music from CDs or other sources will most likely require licenses from the PROs. (revised 1/3/2011)

If you’re  a bar or restaurant owner and you don’t already have your license(s)., you may wish to consult your entertainment lawyer, to determine what’s required.  Of course if you’re contacted by one of these organizations, consult your attorney right away… BEFORE you respond.

Check it out the first installment of his multi-part article at  Multimedia Entertainment Law Online News.

This article will discuss licensing prerecorded music, a future article will address the engagement of a composer to create an original score.

Using Pre Recorded Music

The use of pre-recorded music in a motion picture soundtrack requires two separate licenses, a “master-use license” from the record company, and a “synchronization license” from the music publisher . Needless to say, negotiating and obtaining these licenses can be a time consuming and expensive process. Filmmakers should be sure to budget not only the money, but the time required to secure the necessary rights and permissions.

When to obtain the necessary licenses

Timing of your contact with the rights-holders is an important consideration in the selection and use of prerecorded music. If the film will involve an on-screen or foreground performance of the song, where, for example, the actors are singing along, or making on-screen reference to the particular song, it will be important to secure the rights before the scenes in question are filmed, since a record company and/or publisher could refuse to grant the rights, or set a prohibitive license fee. By contrast, if the music will be used as background or underscoring, it is reasonable to wait until post-production, when exact timings and context can be more readily determined. For these reasons, it’s a good idea to involve a music-supervisor at the pre-production phase. The supervisor will be very helpful in the budgeting and planning process.

Determining who owns the rights needed.

First off, the owners of the rights must be identified. In many cases, this is a rather simple matter of reviewing the liner notes of the CD in which the song is contained. If the CD in question is a compilation or ‘sampler’, the inquiry must go a bit further, to determine who owns the actual recording, since a compilation is often itself a licensed use.

ASCAP and BMI offer very useful, searchable websites, in which songs can be searched by title, songwriter, artist, album, etc. From the search results, you can locate the contact information for the record companies and publishers who control the rights you’ll need.

The Master Use License

Obtaining the master use license is a matter of contacting and negotiating with the owner of the recording. (This recording is referred to as the “Master” recording, hence the term “master-use” license. An initial phone call will tell you exactly to whom you should address your request, and what additional information will be required.

In most cases, the record company will want to see the script (or a rough-cut of the film, if it’s already in post-production) to determine the nature and context of the use, and whether the label and artist are interested in being affiliated with your project. In many cases, Artists retain some level of control over such matters, and may object to the context, language or situations portrayed in the scene(s) where the music will be used. Your request will also have to be specific as to the exact length of the clip that will be used, and the exact nature of the use. (i.e., background, underscore, opening titles, end credits, etc.)

Another important consideration for the record company is the budget of the film, and whether the producers can afford the music requested. Obviously, very popular songs, by big stars will cost considerably more than lesser-known recordings and artists. In some cases, however, record companies are eager to promote their newer, lesser known artists, and will help filmmakers select affordable music that will work with the film. Again, and experienced and connected music supervisor can be invaluable at this stage of things.

Assuming the label is willing to grant a master-use license, the fee involved will vary depending on the nature of the use requested. For a festival-only or student-film license, fees are measured in the hundreds of dollars, but for commercial distribution, the most popular songs can cost a producer tens- or even hundreds- of thousands of dollars.

So, assuming you’ve come to terms on the nature, duration, scope of license and price, the record company will issue a master-use license authorizing your use in the manner specified. Unless already discussed and addressed in the contract, additional uses (such as soundtrack albums) will require additional licenses.

The Synchronization license

The synchronization license covers the musical composition itself, as distinguished from the particular recording in question. Where the record company controls the Master, the music publisher (or sometimes the composer himself) controls the use of the composition. The synchronization license permits the filmmaker to play the composition in timed-relation (i.e., synchronized) to the film. In most cases, obtaining a synchronization license involves a process similar to that of obtaining the master use license.

After determining who controls the rights, you’ll be expected to provide the same information about the use, including the timing, context, etc., and will again likely have to provide the script or a rough-cut for review. Here again, the publisher and composer may have objections to a use based on the events or themes portrayed in the film, particularly those scenes which will contain the song in question.

Fees for synchronization licenses are typically equal to those for the master-use.

Once again, if you’re able to come to terms, the publisher will issue a written license agreement specifying the exact scope of the license granted.

Guild and Union fees.

Once you’ve obtained the Master-use and Synchronization licenses, But your work is not quite done. The Master-use and Synchronization licenses will invariably stipulate that the filmmaker is responsible for “all guild and union fees and payments.” What many filmmakers don’t realize is that these payments can be significant. Unfortunately, this realization often comes only after the film is in distribution, and it’s too late to change to something more affordable.

The American Federation of Musicians (AFM) requires that whenever a piece of prerecorded music is used in a new project, the musicians who performed on the recording receive a ‘new use fee’, essentially a session-payment for the new use. Fees range (depending on the budget of the project in question), from approximately $150 to over $300 per player, plus an 11% contribution to the union’s pension fund. For a full-orchestra recording, this could amount to $30,000 or more, so it’s important to consider this expense when selecting music.

Alternative solutions

One solution some filmmakers use is to license music only from small, unsigned bands, who control all of the rights themselves, and who are not members of AFM. This kind of one-stop shopping can be an affordable way to incorporate new, interesting music into a film, all for affordable fees.

Another approach is to hire a composer to create new, original work just for your film. In many cases, this is not as costly as it might seem. In many cases, composers can create an electronic score that sounds almost as good as a full orchestra recording. Sometimes these scores can be enhanced with a few featured instruments played by professionals.

I’ll detail the composer-agreement in a forthcoming article. Stay tuned.

In the case at hand, mechanics for a Scottish car repair service played their personal radios in the work-bays of the company’s garage. Obviously, an auto-repair shop is a noisy place, so the radios’ volume settings were on the loud side. Consequently, customers, other mechanics and passersby could also hear the music being played.

The Performing Rights Society responsible for collecting royalties for songwriters and performers in the UK, sued the shop for damages of two hundred thousand pounds (around $400,00) for copyright infringement on grounds that this is a “public performance” within the meaning of copyright law. But is it?

The repair shop asked the Court to dismiss the case, but the judge refused, stating that the plaintiff was entitled to present its case. If evidence at trial supports the Performing Rights Society’s claims, the repair firm will be liable. The judge was careful not to express an opinion that the society would succeed, but only that the case should be allowed to proceed.

So, is this really a public performance? Unlike the argument in cases involving restaurants and nightclubs, where the music adds to the ‘atmosphere’ and may be part of the customers’ reason for choosing a particular place to dine, customers probably aren’t patronizing this business because of the music played, are they? Suppose you play hour home stereo with the windows open, and loudly enough that neighbors can hear it? Are you inadvertently giving a public performance? Suppose the windows are closed, but you live in an apartment with thin walls, so your neighbors can hear your musical selections? How about your cubicle at work? Should a taxi service be prohibited from turning on the radios in its cars, unless it first obtains a special public performance license?

ASCAP and its competitor BMI (Broadcast Music International) are the two largest American performing rights societies, charged with collecting royalties for songwrites and publishers for “public performances” of songs in their respective catalogs. ASCAP’s catalog boasts over 8 Million Songs. a public performance occurs whenever a song is played on the radio, television, or the internet, and most performances (live or recorded) of music in public spaces, such as restaurants.

Both ASCAP and BMI employ investigators to roam the country identifying new restaurants, bars, theme parks or other establishments where music is used. Venue owners are required to purchase a license, typically for a single annual fee based on the size, seating capacity and type of venue.

While many businesses aren’t aware of these rules, entertainment attorneys say that suits to enforce these licensing requirements are increasingly common, and ASCAP’s senior vice-president Vincent Candilora is quoted in the Seattle Times as saying that the recent lawsuits are intended to spread the word that performing such music without permission is a federal offense.

Although the societies have targetted bars, restaurants and nightclubs, any business can be the target of enforcement actions. More and more, shopkeepers play music in their establishments to entertain customers and set a mood. If unlicensed, doing so can result in a costly lawsuit.

New and established business owners should consider carefully how music is used on their premises and obtain the necessary licenses.