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by Donald Passman
Let's now look at film songwriter deals. By songwriter deals,
I mean deals for songs (both music and lyrics, or sometimes
instrumental only) written for the film, as opposed to what's
known as the score or underscore, which is the background
music used underneath dialogue, action, etc.
Deal Points
The payment for writing a film song is a fee plus songwriter
royalties. If you're a songwriter of sufficient stature, you
may be able to keep a piece of the publishing as well.
Fees
The range of fees is anywhere from zero--for someone who just
wants to make performance monies--to $40,000 plus for established
writers. There are occasionally deals even higher in the stratosphere,
but they're rare; the vast majority fall in the range of $5,000
to $25,000 with most in the $7,500 to $15,000 range. Whether
or not the writer gets a part of the publishing also affects
the size of the fee. (By the way, the film company will never
obligate itself to use a song. The most it will do is agree
to pay the fee, which is known as pay or play because it can
either use you [play] or pay you to go away.
Step Deals
Songwriter deals are sometimes done on a step basis, meaning
the deal is done over a series of "steps." The steps are:
- The writer writes the song and gives the company an informal
demo recording for a small amount of money.
- If the film company doesn't like it, the company either
passes or goes to step two, which requires the writer to
rewrite the song for a small additional fee (or maybe no
more money). If the company then likes it, it's a firm deal;
if not, the deal is off.
- Once the film company people are happy, it goes forward on a prenegotiated deal to use the song. At this point, the deal is the same as the songwriter deals we just discussed, although I like to ask for more money because we've covered their downside.
All
of this is a fancy way of saying the writer does it on spec
(meaning "on speculation", i.e., he or she writes the song
without a commitment from the film company to pay a full
fee for it). The deal may be completely on spec, meaning
a film company pays nothing or perhaps a few hundred dollars
for the cost of a demo. Or the film company may pay a smaller
fee ($1,000 to $5,000) for writing the song, and then have
the option to go forward if it likes it (by paying a full
fee).
If
you're a major songwriter you shouldn't do anything on spec,
because you don't want to spend your time working on a project
that may pay you less than your normal fee. Also, rejection
is not good for your self-image unless you get your full
fee. (It isn't great even then, but at least you didn't
totally waste your time).
If
you have to take a step deal, at least try to get some guaranteed
money for your trouble, such as $1,000 to $2,500. (Major
songwriters can sometimes get up to half their normal fee
guaranteed in spec deals). You should also provide that,
if they don't go forward, you get the rights to your song
back. The film company will want its money back for this,
but you can usually resist it by saying the money was for
the right to purchase the song if the company went forward,
and it chose not to. A compromise is to give the company
part of the money back, or better yet, only give back part
of the money (or all if you have to) when you use the song
(which means that if it's never used, you don't owe anything).
Buy-Outs
The fee to write the song is a buy-out, meaning it "buys
out" all usages of the song in any media (including home
video, television, etc.), as you would expect. What you
might not expect is that it also normally buys out usage
in sequels, remakes, television series, and, "any other
film produced by this producer or studio." When I represent
a writer of sufficient stature, I always try to get a separately
negotiated, arms-length fee for any usage other than in
the original film. A compromise is that it can be used in
this film plus sequels and remakes, and perhaps even a television
series based on the movie, but anything else requires a
fee. This is not an easy point to get; it requires a lot
of muscle.
Publishing
Until the last several years, writers got no share of the
publishing on film songs. Now, with clout, you can get from
25% to 50% of the publishing income, but the film company
will want to keep the copyright ownership and the exclusive
administration rights. You may be able to keep control of
certain types of synch licenses (such as commercials), just
like in any other songwriter deal, but this again takes
muscle. At a minimum, try for consultation rights on commercials,
which means that they have to discuss proposed usages with
you even though they can make the final decision alone.
Donald Passman is a Los Angeles-based
music attorney with the firm of Gang, Tyre, Ramer & Brown.
Specializing in music business law for over 20 years, his
clients include major publishers, record companies, film companies,
managers, producers, songwriters, and artists such as REM,
Janet Jackson, Quincy Jones, Tina Turner and Green Day. On
a regular basis, we will be excerpting from Mr. Passman's
best-selling book, "All You Need To Know About The Music
Business."
©1991, 1994, 1997 by
Donald S. Passman
From "All You Need To Know About The Music Business"
by Donald S. Passman. Reprinted by permission of Simon &
Schuster, Inc.
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