This Article Originally Published February 2003
by Jeffrey & Todd Brabec
When the songwriter is also a recording artist and is not only creating the song for the motion picture but also performing it in both the film and on the soundtrack album, the composing agreement will cover, among other things, not only the writing aspects and mechanical royalty issues but also the areas of recording procedures, recording costs, artist royalty percentages, advances and any restrictions placed on the record company distributing the soundtrack by the record company to which the artist is signed.
The following represents some of the basic items contained in this type of agreement, which is many times a 7 to 10 page "short form" agreement rather than the much longer score agreement.
- Basic Project Information: The title of the film, plus the names of the director, the stars appearing in the film, the identity of the distributing film company and the projected release date are mentioned.
- Cooperation: The writer-artist agrees to cooperate with the reasonable requests and instructions of the film company. In most cases, the writer-artist agrees to make any changes reasonably requested to not only the composition but the master recording as well until a satisfactory composition and recording is delivered to the film company.
- Record Company Waiver: The writer-artist acknowledges the right of his or her current record company to the exclusive recording services of the artist and agrees to cause the record company to grant a written waiver of the exclusivity provisions to allow the film company to hire the writer-artist to record the composition for use in the film and soundtrack album.
- Publishing Company Waiver: If the writer-artist is signed exclusively to a music publisher, the writer-artist will also secure a waiver from the music publisher to allow the writing of the composition for the film project. This waiver is vital since most film companies demand all or a portion of the copyright in the newly created composition and this transfer of rights would not be possible if a writer is signed to an exclusive music publishing contract under which all compositions written are owned by the publisher.
- Work-For-Hire: The writer-artist will agree that the newly written composition is a work-for-hire and that the copyright (or a portion thereof) is assigned to the film company. The film company will also secure the right to utilize the composition in the motion picture and in advertisements, trailers and other promotions as well as to distribute the film on video.
- Co-Ownership: Many successful writer-artists are able to retain 50% of the copyright in the music publishing rights with the film company securing the other 50%. If this is the case, the agreement will specify the ownership percentages of the new composition. Even though it is not the norm, certain very successful writer-artists are able to retain 100% of the copyright and publishing rights.
- Fees: When a film company is dealing with a very successful writer-artist, the fees will be substantial. In many cases, there is a so called all-in lump sum recording fund which covers not only the creative fee for writing the composition and for being the recording artist and producer of the composition but also all the costs of recording the master (studio, tape, engineers, musicians, vocalists, equipment rentals and mixing costs). When this all-in fee approach is used, there is also usually a negotiated sum designated as the creative fee for composing the composition (for example, $60,000 of the $200,000 recording fund being the songwriter fee).
There are many variations as to how the monies are paid but the norm is pay a portion on the signing of the agreement with the writer-artist with the remainder being paid when the composition and master recording have been accepted by the film company.
On occasion, a portion of the recording fund is treated as an advance against future recording artist royalties but this is negotiable since the monies paid to the writer-artist for production of the master recording are usually not recoupable from royalties.