86594426 rap film scoring presentation

Film Scoring Contracts Understanding Your Rights

March 7, 2012

© 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College) 1

The Plan   Introduction   What is a contract? What is its purpose? Who can help?

  The Contract in Practical Terms

  Rights allocations

  Important Contract Miscellany

 Case Study

 Negotiation Points

3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)

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What is a contract?

Contract

Consideration

Offer

Acceptance


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What is the purpose of a contract?

Set expectations

that will govern the relationship

Delineate the mutually agreed

obligations of each party.

In the event of a default, having an

enforceable document.


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When do you need a lawyer?  As early in the process as possible

 Why do you need one?   To help negotiate the deal

  To review terms

  To advise on the quality of the agreement

  To advise on the specific terms

  If you don’t have the money, you can still get help!


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Pro Bono Resources

University Services

• Harvard Recording Artists Project

• Harvard Transactional Law Clinic

Pro Bono Services

• Volunteer Lawyers for the Arts


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Harvard Law School Recording Artists Project

• Pro bono legal services for local musicians, venues, producers, labels, and anyone with a music industry tie What?

• Teams of eager Harvard Law students under the supervision of Harvard Law professors

Who?

• www.recordingartistsproject.com Where?


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Who are the parties?

You (the composer)

Who are you contracting with? • A producer? • Multiple producers? • A company? • Multiple companies?


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What are your services?

What are you providing?

How many minutes?

Write the music AND record it AND spot it AND mix it?

Are costs (musicians/studio time) included in your fee? Budget?

Subject to approval? Revisions?

Nature of the music?

All underscore?

Theme music? Original songs?

Separate promotional music?

Versions?

Purposes?

Film only?

Promotional uses? • Theatrical Trailers? • TV/Radio spots?

Soundtrack albums?


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What are you expected to deliver?   Score in notation?

  Recorded mix?   Stereo or surround sound reduction?

  Sample rate and bit depth?

  Stem mixes? Versions?

  Multi-track session files? (i.e., Pro Tools files)

  On a CD or hard drive?


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Where is each party?

Where should they

send the raw elements?

Where should you turn in the

deliverables?

Upon completion,

where should they send

the check?


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What are the relevant time commitments?   By when must you have completed your

obligations?   Watch out for “time is of the essence” clauses!   EXCLUSIVITY!

  By when must they have completed theirs?

  Are there any other landmark obligations?   Completion of the score by a certain date?   Recording by a certain date?   Delivery by a certain date?   Attendance required on a certain date?

  Spotting? Film Mix? Premiere? Press?


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When do you get paid?

Package deal? • All up front or upon satisfactory delivery? •  In installments?

• Execution/delivery/approval • Spot/commence/complete

Back end compensation? • When/how is your compensation calculated

and distributed? • When/how/how often can you verify?


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R I G H T S 1 0 1


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Copyright Basics

Sound Recording • Works that result from the fixation of a

series of musical, spoken or other sounds

Composition • “Musical works, including any

accompanying words” that are fixed in some tangible medium of expression.


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Rights in the Composition

Synchronization Right • Right to record the music in

synchronized or timed relation to the pictures in a film or video.

Performance Right • Right to perform publicly the music

that is recorded under the Sync right.


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Rights in the Sound Recording Master Use License Right to the

Master Recording for a motion picture


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Rights Allocations

• Grant specific uses to the film company for limited time

License

• You give the rights to the film company

Assignment • Rights belong

to the film company

Work-for-hire


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F I L M S C O R I N G


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Authorship

• Copyright of a sound recording rests initially with the “author” or “authors” of that recording.

The Copyright Act

• A composer enters into an agreement with a film company to provide the underscore for a motion picture.

• Who is the “author?”

Scenario


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The Work-for-hire Classification

Work-for-Hire

Hiring party (the employer or

qualifying commissioning party)

No written agreement to the

contrary

Hiring party = author and copyright holder

of work


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Answer

Composer’s contribution is characterized as a

work-for-hire Film company

= “author”


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Belt and Suspenders

What if, by law, it is not a work-for-hire?

What will the contract stipulate?

Assignment in perpetuity


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Ghost Writing

Work-for-hire relationship

Additional Confidentiality

agreement

No Work-for-hire

relationship

In exchange for $, you sign over your

right to receive credit for your

work.


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S O U N D T R A C K S


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What the Composer Typically Receives


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 Mechanical license   The right to reproduce and distribute to the public

copyrighted musical compositions

  On any fixed, tangible mediums other than what accompanies motion pictures and other audiovisual works

  Usually paid 50% of the mechanical license receipts of the original publisher   No fixed statutory rate

  Little leverage to negotiate

Industry Standards

Motion picture producers are reluctant to grant film composers the right to collect royalties on sales of soundtrack recordings.


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Miscellaneous Deal Points   Screen Credit

  Performing Rights Organization

 Notices and Payments

  Representations and Warranties


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Screen Credits


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Single-card credit in

the main or end title

Same length and duration as

other relevant parties

Credit in paid, print ads where

the full billing block

appears

Remedy: Company’s best efforts

to fix the error

Soundtrack Albums

You must ASK.

At a minimum, insist on back cover credit.

The record company controls.


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Performing Rights Organizations  Which performing rights organization represents

you will be specified.

 Matter of convenience.   The information remains easily accessible and

contained within one document.

  It makes it easier to communicate and bargain with other parties if they know everyone involved.


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Notices and Payments

Sent to the address and in the manner

specified in the contract.

Information contained is

important. Pay attention!

Notify the company of any changes in

your address or contact

information.


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Representations and Warranties What you promise is true. • The originality of the composition • No violation of third party rights • No liens or encumbrances rest on the score at the time of

contract • The producer is free to use the score

What if it is not? • Company can terminate the contract • You may be able held liable for the resulting damages

What the company promises. • Recognizes originality • Will not contest copyrightability


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Case Study – Sample Film Contract


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Who are you licensing to?

On what are they basing

your fee calculation?

For what can they use your score?

Is the contract

complete?

Who are you licensing to?

The licensee will be specified in the opening paragraph of the contract.

Make sure you are licensing your music to just one entity.

The artist’s contract licensed his score to each of the three producers meaning that any one of them could use his music as specified in the contract.


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On what are they basing your fee calculation?  Different bases allow for manipulation and favor

certain parties.

  It is likely you will not be compensated properly.

 Audits are time-consuming and expensive.

  Relevant statutes of limitations and incontestability clauses could lock out your claim.


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Compensation Bases • Clear and easily verifiable

Variety Box Office

• Most favorable to studios • All costs are recouped

before you are paid so this allows for the most manipulation.

Net Profits

• This includes box office receipts plus any ancillary revenue from TV, soundtracks, video games, etc.

Gross Receipts

• This is the same as gross receipts with the only reduction being the “off-the-tops,” which are standard industry expenses and easy to calculate and verify.

Gross After First Dollar

• This is the same as gross receipts but you do not start collecting until the company breaks even.

• The breakeven level is set initially at the time of contract based on current projections.

Gross After Actual Breakeven

• The studio will set the level of cash it must recoup before sharing profits with artists.

Gross After Cash Breakeven

• The studio sets a level it thinks it ought to recoup before the artists accrue fees.

• This can be set anywhere within the studio’s discretion.

Gross After Artificial Breakeven


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For what they can use your score?

• The picture itself • Trailers • Advertisements

“Only in connection with the picture.”

• What if the score is used at film festivals and but rescored before its general release?

• What happens if only some of the score is used?

Producers do not have to pay if the Masters were not used in the “final

edited version of the Picture as generally

released.”


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Is the contract complete?


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All terms are complete • All expectations, rights,

and obligations defined and clear

Incomplete • Terms are left “to be

negotiated in good faith”

• Contract may be held invalid by a court

• Missing terms may be interpreted according to set statutory frameworks

Negotiating Your Contract Identify Parties

Issues

BATNA

Interests

It is not really a negotiation

Approach the discussion as if you are asking for a favor.

Figure out what your counterpart is willing to give.

Know what is most and least important to each party.


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Negotiating Your Contract – Be Prepared


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Think through various options.

List negotiable terms and set acceptable

ranges.

Are there any objective

standards or criteria?

How are you going to present

yourself?

Consider your current

relationship.

What reputation does his

company have in the industry?

Even if you are desperate, hide

it!

Negotiating Your Contract – Increasing Your Leverage


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Leverage

Alternatives

Ego

Momentum

YOU

Process

Allies

Passion

Assumptions

Resources Available National

• Local Volunteer Lawyers for the Arts: http://www.vlany.org/legalservices/vladirectory.php

Harvard Law School

• Recording Artists Project: http://www.recordingartistsproject.com/

• Transactional Law Clinic: http://www.law.harvard.edu/academics/clinical/tlc/clients/entertainment.html

Further Reading

• All You Need to Know About the Music Business by Don Passman


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