Let's say your friend composes your music...

Christopher.Gros said:

....for you low budget film. Let's say you pay him an amount of money for his contribution. Let's say you enter the film into a festival, and in the random chance it gets bought by a studio for distribution. Is the studio then required to give the composer more money (assuming it makes money in a limited run in theaters or online) or is he just stuck with whatever he originally paid (however small the contribution).

This is all hypothetical of course

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No. The studio isn't required to give the composer more money.
No. He is not just stuck with whatever he was originally paid. The
distributor pays YOU for the rights to distribute the movie. You
then decide if you are going to share any of that money with
your friend.

I was talking to the director of RECON 2020, which sold in a couple of dozen countries. He said that while he paid his composer, the ASCAP/BMI royalties from each territory deal netted the composer thousands more dollars; much more than the original salary. A Cue list (sheet) of all songs/composers is part of the distribution deal.

Bottom line: distribution is a good thing, especially for composers who belong to ASCAP/BMI.

Just make sure you have your agreement with the composer (or anyone who works on the movie) in writing.

Christopher.Gros said:

This is all hypothetical of course

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It's actually much more hypothetical than you think! You are assuming that the hypothetical part of your question is the likelihood of a distributor noticing your film at a festival and liking it enough to want to buy it. However, there is a process to buying a film, just as there is a process to buying anything. For example, you might see a car advertised for sale which you want to buy but no matter how much you wanted that car, you're not just going to buy it without knowing that it actually works and that the person selling it is actually legally entitled to sell it. The same is true with buying a film! Before a distributor actually buys your film they will need to be sure that: 1. Your film actually works, IE. That it meets their technical requirements, so that it can actually be distributed/screened in commercial cinemas and 2. That you are legally entitled to sell it.

Setting aside the issue of a distributor wanting to buy your film in the first place, the issue that no/lo budget films extremely rarely meet theatrical specifications and you're left with #2: You are going to have to prove that you are legally entitled to sell the distribution rights and this means that you will need to have legally binding clearances/permissions for anything in your film which anyone else owns. This obviously includes your composer, who owns the copyright/s of the music in your film.

You would therefore need a signed agreement/contract with your composer and this contract would include the composer's permission for use and what they are getting in return (pay, points, etc.). So your hypothetical situation could not happen in the first place and even if there is some later dispute, as directorik said, that would be between you and your composer and have nothing to do with the distributor.

G

yes the above are correct, no obligation to pay more if there's no pre-arranged agreement based on the film's success.
often these types of things are in contracts if there's little up-front budget as a good way of incentivizing a composer

BMI and ASCAP, as I understand it, collect royalties, from the distributor, from television exhibitions. Yes, if you get a distributor to pick up your film, they will require a music cue list. If you are self-distruting, then you are responsible for the royalties.

jpomichter said:

BMI and ASCAP, as I understand it, collect royalties, from the distributor ...

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Er, no. Royalties are payable for the "performance" of the music (to an audience). It's therefore the exhibitor/broadcaster who pays the music royalty, not the distributor. In other words, it's the cinema/s who would pay the music royalty fee, not the studio or distributor. Likewise, when a TV network broadcasts the film/content they must pay the performance royalty but when they distribute the content, say to another channel/territory, they don't (the broadcasting channel pays). An exception to this is in the US where, due to a legal loophole established in the 1940s (when the studios/distributors were also the cinema owners), no performance royalties are payable by the (US) cinemas. AFAIK, the US is the only developed country which does not pay performance royalties for music used in theatrical presentations. However, performing rights organisations in the US do collect music royalties on behalf of US composers (music rights holders) from theatrical presentations in other countries.

G

AudioPostExpert said:

the US is the only developed country which does not pay performance royalties for music used in theatrical presentations.

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Correct no re-occurring US royalties when the film is played, but remember there was a hefty one-time fee paid (by distributor) for that music to be included in a theatrically released film (sync fee) and whatever service fee the composer negotiated to do the work in the first place (paid by producers/investors).

So the money a composer gets is typically an upfront thing with all rights going to the buyer, more or less.

As mentioned TV music is handled differently (generates a royalty based on plays (and a million other factors), except in the case where a theatrical movie is shown on TV - no royalties there as the music was typically all covered by that initial sync fee way back.

The actual figures of the sync fee scale with the size and weight of the budget/production/songwriter/composer

So OP you already paid your guy his requested service fee (beer and tacos) and if you get distribution, the distributor will pay the sync fee negotiated (dollar amount reflective of the level of film/budget) by your guys performance right org for his music which in turn your guy will receive from his performance right org.

Now if the film is pirated this slightly alters the payment model... oh wait.

Guanto said:

Correct no re-occurring US royalties when the film is played, but remember there was a hefty one-time fee paid (by distributor) for that music to be included in a theatrically released film (sync fee) and whatever service fee the composer negotiated to do the work in the first place (paid by producers/investors).

As mentioned TV music is handled differently (generates a royalty based on plays (and a million other factors.

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Sort of!

TV in the US is handled (more or less) the same as music copyright and performance royalties everywhere else, AFAIK: The producer/prodco pays the composer for a licence to copy the music into the program/film (the sync fee) and then the composer gets a performance royalty when/if the program airs. So that's a sync fee PLUS a performance royalty, two different payments for two different things, neither of which is payable by the distributor BTW. The only difference is with US theatrical presentations where, for whatever legal loophole, there is no performance royalty, only the sync fee.

G

AudioPostExpert said:

Sort of!

TV in the US is handled (more or less) the same as music copyright and performance royalties everywhere else, AFAIK: The producer/prodco pays the composer for a licence to copy the music into the program/film (the sync fee) and then the composer gets a performance royalty when/if the program airs. So that's a sync fee PLUS a performance royalty, two different payments for two different things, neither of which is payable by the distributor BTW. The only difference is with US theatrical presentations where, for whatever legal loophole, there is no performance royalty, only the sync fee.

G

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Sorry not seeing what you think I was "sort of" correct on by your response.

I can break down TV music more clearly for you, from personal experience even if you'd like. As a musician I got paid a service fee from the production company to write and record a theme song. This was lucky actually, usually musicians forgo this just to get attached to something, but I was full of myself at the time so I asked and strangely I received. So I got paid directly for the creative process and delivery of the finished broadcast ready product, nothing to do with licensing yet.

Now the production company doesn't pay me, the artist, to license something, because I don't know what to charge them or how to track it. However before I handed my finished song off to the production company I registered it with ASCAP as the publisher (me) and the writer (me)... 50/50. To my surprise the production company hit me back and said they wanted half the publishing. Remembering I already got a chunk of change up front and realizing it was a nice opportunity, I said sure and signed them on legally as co-publisher of just that one theme song. So now I'm at 25/50. Once that was all settled they paid ASCAP to include the song (that they paid me to write/record) in their show. A one time fee (el syncho de mayo) to be used on the show in perpetua. I have no idea what they paid to make that happen, but I'm thinking it wasn't to bad based on my pedigree and the shows budget. It may have even been free. I as the artist don't see any of that, that's how ASCAP makes theirs. Of interest is they rolled up the synch fee with the master fee because I was the owner/creator of the song and the recording. That part gets way more complicated when its separately a writer's song, an artists performance and a labels recording.

[Music for Theatrical Released Films in the US work basically the same way up to this point]

Now it's the networks turn to pay. They take the show they purchased from the production company and its accompanying music cue sheets provided by the production company and submit them, along with the networks own records of the shows air dates and times, to ASCAP. ASCAP crosschecks all the factors and weights (length, placement, number of airings, is it incidental or a theme, etc) and charge the network a performance fee to use those songs. BTW when you go into a bar and hear your favorite song playing, from either the sound system or a cover band, that bar is paying performance fees for that music as well. ASCAP collects these monies, takes 10% and pays me the rest as my publishing and performance royalties quarterly, depending on if (and where and what time of day) the show is airing of course. And don't forget the production company is getting 25% when this happens too, if you recall my deal.

Back to Film for a second, even though an artist doesn't get these performance royalties (as in television) it's worth noting that if they end up on the films soundtrack, they will recoup all of the appropriate royalties based on album sales, digital downloads, radio play, etc. The marketing juggernaut that is theatrical film can propel a little song a long way and boost their royalties in all these other mediums much further than artists receiving standard royalties with hit songs on the radio.

Christopher.Gros said:

....for you low budget film. Let's say you pay him an amount of money for his contribution. Let's say you enter the film into a festival, and in the random chance it gets bought by a studio for distribution. Is the studio then required to give the composer more money (assuming it makes money in a limited run in theaters or online) or is he just stuck with whatever he originally paid (however small the contribution).

This is all hypothetical of course

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Write everything out between you and your friend, so there can be no misunderstanding.

Guanto said:

Sorry not seeing what you think I was "sort of" correct on by your response.

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It's not the distributor who pays the sync fee, that's part of the contract between the composer and prodco and paid by the prodco. The distributor doesn't pay the performance royalties either, that's paid by the broadcaster, cinema or whoever is actually presenting the work to the public. There maybe the odd exception to this general rule but not in my experience.

Guanto said:

I can break down TV music more clearly for you, from personal experience even if you'd like.

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No need. I made a good living as a composer for TV/film for about a decade before I gradually moved over to the sound side of audio post, so I've got a pretty good idea of how it works in practice.

Guanto said:

Back to Film for a second, even though an artist doesn't get these performance royalties (as in television) it's worth noting that if they end up on the films soundtrack, they will recoup all of the appropriate royalties based on album sales, digital downloads, radio play, etc.

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Again, not really. The theatrical performance royalties are never "recouped" (in the US), royalties from album sales of the film's score are album sales royalties not royalties in lieu of the theatrical presentation royalties. Again, comparing with TV (and with how it works in other countries), on the rare occasions when the music score is released as an album, the royalties from the album sales are in addition to the broadcast royalties, not instead of them.

G

AudioPostExpert said:

It's not the distributor who pays the sync fee, that's part of the contract between the composer and prodco and paid by the prodco.

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I suppose I could change my first parenthetical you are referencing from my first post here to "Producer", but in truth it's only a partially true statement either way. Because in the end its solely on the distributor, not the production house, to make sure all the T's are dotted and the I's crossed before they can legally distribute a film to theaters. You should see the sad state some of the films are in that distributors pick-up, and these films being riddled with unlicensed music is hardly an exception. They'll typically scold the filmmakers, pick up the film for substantially less, and then handle the synch fees (and a million other things) on their own. If they even leave the music in at all. Mostly talking independents here of course.

And based on the OP's scenario, the reality of it is, there is no producer, no money to pay a synch fee and ironically no "protected" music to license. So if someone wants to show this film in a real theater, they will have to foot that bill whatever title or role they happen to have. Again if there is even a bill to be footed at all... as far as the music goes. And that footer could surely be a production house, but it could just as easily be an independent distributor dealing directly with an independent director who didn't procure his music properly. Happens all the time at this level.

AudioPostExpert said:

The distributor doesn't pay the performance royalties either,

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Oh my I hope nobody said that here.

AudioPostExpert said:

that's paid by the broadcaster, cinema or whoever is actually presenting the work to the public.

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Cinema's don't pay royalties.

AudioPostExpert said:

No need. I made a good living as a composer for TV/film for about a decade before I gradually moved over to the sound side of audio post, so I've got a pretty good idea of how it works in practice.

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Awesome!

AudioPostExpert said:

The theatrical performance royalties are never "recouped" (in the US), royalties from album sales of the film's score are album sales royalties not royalties in lieu of the theatrical presentation royalties.

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Good grief Charlie Brown, I didn't mean there was some clandestine performing rights organization in place that secretly recoups specific mechanical royalties to replace penny for penny what a composer hypothetically lost from a medium that doesn't pay royalties in the first place. Although I do smell screenplay with that synopsis.

I simply meant there are other ways a composer, be they innovative, aggressive, lucky or connected, can make additional monies from their contributions and often at a much more lucrative scale that would quickly erase any residual bitterness over seat taxes. Getting on a movies soundtrack is a very big, very cut-throat, deal because of this. But I can $ee why. Most European/Asian film composers will happily trade their "home country cinema performance royalties" for even a long shot at the American Billboard Charts.

Guanto said:

... in the end its solely on the distributor, not the production house, to make sure all the T's are dotted and the I's crossed before they can legally distribute a film to theaters.

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Theoretically maybe but not in practice. In practice a distributor will require indemnity from the producer/prodco, usually in the form of E&O insurance, and a producer is not going to get E&O insurance without legally binding music (and other) clearances.

Guanto said:

They'll typically scold the filmmakers, pick up the film for substantially less, and then handle the synch fees (and a million other things) on their own. If they even leave the music in at all. Mostly talking independents here of course.

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Typically, they (the distros) simply won't touch the film with a barge pole if it doesn't have E&O insurance or the appropriate clearances/chain of title to enable the straight forward purchase of E&O insurance. Typically, they will not get involved in re-negotiating, issuing or fulfilling the contracts between the prodco/producer and composer (or other prodco employees/sub-contractors). In practice, it's the producer's job to produce a film which can be distributed and then the distributor's job to market/distribute it, it's not the distributor's job to be the film's producer!

Admittedly, in this internet age the definition of "distributor/distribution" has become a little blurred, there are far more amateur filmmakers looking for "distribution" and many more people calling themselves "distributors" attempting to fulfil this demand or take advantage of these filmmakers' desire. So, I'm sure there are some fly-by-night "distributors" who may take on amateur films without the necessary clearances (usually for a fee!) but the OP stated a "studio", implying a reputable, established distributor who can actually distribute to cinemas.

Guanto said:

And based on the OP's scenario, the reality of it is, there is no producer, no money to pay a synch fee and ironically no "protected" music to license.

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At the amateur level, I agree there is often no one fulfilling all the responsibilities of the producer's role. Virtually without exception though, the music they use is protected and does require a licence. How much (if anything) is paid for that licence must be agreed contractually between the composer (music rights holder/s) and the producer.

Guanto said:

Cinema's don't pay royalties.

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Yes they do, just not in US cinemas! This isn't just semantics because it does directly affect US composers, producers, distributors and the contracts between composers and producers and between producers and distributors, as I've already stated. An actual example was quoted in this thread, in post #3 by Scoopicman.

G

AudioPostExpert said:

Theoretically maybe but not in practice.

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Happens in practice often, just as I described. Even happened to me in'05 personally (but slightly different, on the TV side). I'm sensing your grasp is either a little behind the times, or rooted in big budget academia. I'd venture to guess frequenting the smaller film festivals hasn't been your thing as of late. (You lucky bastard).

AudioPostExpert said:

Admittedly, in this internet age the definition of "distributor/distribution" has become a little blurred, there are far more amateur filmmakers looking for "distribution" and many more people calling themselves "distributors" attempting to fulfil this demand or take advantage of these filmmakers' desire.

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Now you're getting warmer. And also throw on top of this that "distribution" hardly means only brick and mortar theaters now-a-days... yet everything we are discussing applies.

AudioPostExpert said:

Virtually without exception though, the music they use is protected and does require a licence.

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Huh? The vast majority of music I'm exposed to in grass roots indie film (read as not 'Birdman') is either public domain, royalty free or homebaked by drinking buddy musicians, or what I like to call DWC (director with casio), neither of which is typically registered with or protected by a PRO of any sort. All of this music would not only cost zero to license but there would be no one to license it from... unless you are suggesting a musician with a song attached to a film that is not registered with one of the majors fight for his own rights and name his own synch fee prices, which in the scenarios we are discussing would be laughable at best.

AudioPostExpert said:

Yes they do, just not in US cinemas!

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Sorry you didn't clarify and I can't keep up with what side of the pond you jump to from sentence to sentence. I typically default to domestic when perusing here.

Guanto said:

Happens in practice often, just as I described. I'd venture to guess frequenting the smaller film festivals hasn't been your thing as of late. (You lucky bastard).

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Regardless of where I venture, the studios and reputable/legit distributors don't frequent the small film festivals. If a distributor is willing to distribute a film to cinemas without E&O insurance, that's a pretty good indicator that they're not a reputable/legit distributor.

Guanto said:

Huh? The vast majority of music I'm exposed to in grass roots indie film (read as not 'Birdman') is either [1] public domain, [2] royalty free or [3] homebaked by drinking buddy musicians, or what I like to call [4] DWC (director with casio)

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1. While there's a lot of public domain music out there, there aren't many public domain recordings of that music.

2. Royalty free music is not copyright free music! It still requires a licence/contract between composer and producer. This can take the form of a written statement by the composer outlining the conditions under which any producer/filmmaker can use their music without paying a sync fee (or other fees).

3 & 4. The drinking buddy, director or whoever creates the original music is automatically granted copyright protection, regardless of whether or not they register it with anyone. PROs do not offer any protection, they just collect the performance royalty fees on behalf of their registered members. Again, a (legit) distributor will require suitable clearances from the music copyright holder/s, regardless of who they are, where you know them from or what brand of cheap synth they used!

As I stated before, in very few cases will a producer not need some form of contract/licence for the music they use, if a legit distributor is to become involved.

Guanto said:

Sorry you didn't clarify and I can't keep up with what side of the pond you jump to from sentence to sentence. I typically default to domestic when perusing here.

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As I said, there are direct ramifications, even for US composers and producers!

I think we're starting to go round in circles now, so there's no point in continuing this discussion as far as I can see.

G

I often have to sign waivers, disclaimers, agreements, and fill in track lists for registration purposes (imagine having to find imaginative titles for 60 original tracks! when your usual practice is track 1, track 2 etc) and that's when there's no additional money changing hands.
If money is likely to be a thing, you need an ironclad agreement in place covering fees, copyright, ip ownership, residuals and royalties etc

The best directors I have worked with have made belated payments following unexpected distribution, as well as making sure my work was registered and protected. (I will always repeat business for any decent guy)
Paying someone whose work you are benefiting from is of course the right, and best thing for both of you. Not only do you both financially benefit, but will likely continue to work together and benefit from that, as your filmmaking friendship develops.