The angles aren’t particularly flattering, but here’s the video:

This move, comes in the form of an RFP (request for Proposals) written without any input from the film industry, one of the city’s largest employers. Interestingly, it also comes on the heels of recent announcements regarding city incentive programs designed to keep film production here.

Hat Tip: Nikki Finke’s Deadline Hollywood Daily » Location Managers Lobby LA City Council:

This is the final installment of  a 3-part series on the importance of collaboration agreements for every writing or other creative team.  In Parts 1 and 2, I analyzed some of the important provisions found in properly negotiated and drafted collaboration agreements.  Here, I’ll continue that discussion, and explain the advantages of using entertainment lawyer -drafted agreements.

G.  Division of Royalties and other revenues/expenses

Generally, the authors of a collaborative work  share in the Net Income derived from exploitation of the work.  The definition of Net Income, while  sometimes a hotly contested issue in negotiations with third party purchasers, shouldn’t be a major point of contention among collaborators.  It’s usually a relatively simple formula… Income, less expenses and commission equals Net Income, which is then divided according to the agreed splits among the collaborators.

H.  Small/Grand Rights

Since Musical Theatre projects consist of both musical and literary material, it’s important to distinguish between the sources of revenue for the musical components of the work.

Songs, for example may, in addition to being performed as part of the show, be re-recorded by other artists, played on radio, tv, over the internet, etc.

The rights in such non-dramatic performances of musical works are typically referred to as “small performing rights”, while “Grand Rights” refers to performances within the dramatic context of a staged production.

Since there are different sources of revenue, it’s important that the collaboration agreement address the manner of accounting  for each.     As a general rule, the small performing rights are controlled by the lyricist and composer (or their publisher).  The big question, then, is whether the bookwriter/librettist should participate in such revenues, and if so, to what extent?

Other considerations might include  revenues from merchandise focusing on a particular element, say a song-title on a T-shirt, or a lyric printed on a greeting card.

Similarly,  what about subsidiary uses of only a single element.  (i.e., the publication of the book only, or music only?)

Still further consideration should be given to the inclusion of a buy-sell provision.  This would require that if a collaborator wishes to sell his/her interest in the show, the other parties might  have a right of first refusal, last refusal, or even an absolute right to bar the sale to any third party.  As with many provisions of the collaboration agreement, the better spelled-out the mechanisms, time frames, and procedures are, the less likely that misunderstandings will arise.

J.  Resolving Disputes

Historically, parties have relied on court proceedings to resolve disputes that arise out of collaborations… but the expense of such proceedings  is considerable and is often a deterrent to pursuing  the issue.  Many collaboration agreements now contain provisions for less formal methods of dispute resolution, such as mediation, and failing agreement following a mediation, arbitration of the dispute.  Care should be taken to select mediators and arbitrators familiar with the particular industry involved, so you get an informed and meaningful result.

Special Situations with Company-Created Works

While a typical collaboration agreement  can deal adequately with a 2- or 3-member team of collaborators, it is not well suited to the situation of Company Created Works.

A Company Created Work is a  work that is authored by a collective, such as a theatre company, acting class or improv group.    The questions  (ownership, control, merger, division of revenues, etc.) that arise in such situations are similar to those of collaboration, but the way they’re handled can differ greatly.  I’ll make this the subject of a future article.  Stay tuned.

Why agreements should be drafted by an Entertainment Lawyer, and not simply copied from books or the internet.

While there are plenty of “form” collaboration agreements available on the internet, in books, and elsewhere, entering into a collaboration agreement should be looked at in the same way someone would view starting any other new business.  The advice and counsel  of a knowledgeable, experienced entertainment attorney is invaluable in protecting the interests of all concerned.  The cost of preparing such an agreement is negligible compared to the losses that can be suffered if a project is abandoned, or winds up mired in litigation.

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.