Proper Registration of the Song with the PRO is Crucial
Each PRO has requirements that make writers responsible for properly registering their songs and for notifying the PRO’s of any audiovisual projects that may generate performance income. I spent a year trying to get one PRO to pay for the theme song of a cable talk show because the writer did not provide a “cue sheet” before the broadcast of the series. A cue sheet is a schedule of the music contained in a film or television program or any other audiovisual work and is essential for the PRO to distribute royalties for musical performances in audiovisual media. It is typically prepared by the production company, but the writer will not get paid unless the production company actually files it in a proper and timely manner. See below for an example of a cue sheet.
Some licenses require a songwriter to yield all rights in a song to the company. In that case, the writer has no right to receive any PRO royalties. However, there are cases in which the company requires the transfer of the copyright in the song, but allows the writer to receive the “writer’s share” of performance rights income (that is, 50% of the total amount payable by the PRO). In that case, the writer has to make sure the company is properly registering the song, providing cue sheets to the PRO and complying with any other forms that have to be completed.
Work for Hire vs. Non-Exclusive License
An issue sometimes even more important than money is whether a license is “work for hire.” In a work for hire agreement, the songwriter, artist or producer loses all rights in her music, including the copyright and the right to use the music again for any purpose. If, on the other hand, the grant of rights to the company is a non-exclusive license, the creator keeps the copyright in her music, and retains the right to distribute it as a record and make other deals. Here is a typical work for hire clause:
It’s always better that the artist, songwriter and producer retain their copyrights. However, sometimes the work for hire clause will be non-negotiable, and then the creator must ask herself: whether the up-front money (and in the case of a songwriter who retains the writer’s share, the potential PRO royalties) adequately compensates for the loss of the right to use the music.
WORK FOR HIRE: Artist [Songwriter and/or Producer] agrees that all of the results and proceeds of his services shall be deemed a “work made for hire” for the Company under the U.S. Copyright. Accordingly, the Artist further acknowledges and agrees that Company is and shall be deemed to be the author and/or exclusive owner of all of the Recordings and Musical Compositions contained therein for all purposes and the exclusive owner throughout the world of all the rights of any kind comprised in the copyright(s) thereof and any renewal or extension rights in connection therewith, and of any and all other rights thereto, and that Company shall have the right to exploit any or all of the Recordings in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all configurations as Record Company determines, including without limitation [name of movie, TV show, TV commercial, etc.] In connection therewith Artist hereby grants to Company the right as attorney-in-fact to execute, acknowledge, deliver and record in the U.S. Copyright Office or elsewhere any and all such documents pertaining to the Recordings if he shall fail to execute same within five (5) days after so requested by Company.
Other Basic Contract Terms
Here are a few other important terms in sync and master use licenses that are not work for hire:
DURATION (or “TERM”): The company will usually want the right to exploit the following durations of use:
• Theatrical Films: Generally for the “life of the copyright.” In other words, the company’s right to use your music will last as long as the song is protected by copyright law, which is as long as you’re alive plus 70 years.
• Television: Generally, the same as above.
• Commercials: Typically an initial term of one year, often with the option for the company to renew for another equal term upon payment of an additional licensing fee (which is usually the same as the original term, although you can try to negotiate for a higher fee, for instance 125% of the original fee.)
• Computer Games: Could be “life of the copyright,” or a briefer term such as three to five years. There are few games which will have a life span of more than a year or two, so in most instances, the company won’t consider it all that important to obtain a long-term license.
MEDIA: The company will want the right to exploit the audiovisual work as follows:
• Theatrical Films: Generally, a movie producer, production company, or studio will want the right to use a song or master in festivals for one year, with an option to exploit the movie, including your music, in all media (“broad rights”).
• Television: Generally, the network or cable service will want all media rights because a TV show can be recycled in any number of platforms such as streaming, downloading, home video, etc. Talent should, however, try to negotiate a separate fee for home video including downloading.
• Commercials: Typically limited to TV and Internet, but the songwriter/ artist/ producer can try to secure an additional fee for use of the commercial on radio.
• Computer Games: Generally all media now or hereinafter developed.
TERRITORY: The company will want the right to exploit the audiovisual work as follows:
• Theatrical Films: Typically “worldwide.”
• Television: The creator may be able to negotiate an additional fee for foreign use.
• Commercials: Local, multiple U.S. markets, national or worldwide.
• Computer Games: Worldwide.
