Copyright, Publishing & Licensing
There is really no short and simple way to cover this, other than perhaps to say:
Copyright, publishing agreements, and terms of licensing all have significant value and, as such, can (and arguably should) be factored into your negotiations.
The importance of this point cannot be overstated, and understanding it in depth may well be critical to your career sustainability. Copyright, publishing and licensing agreements are your assets just as your keyboard, guitar, computer or car are assets. They all have a value and their value needs to be factored into your agreements.
Every composer will need to find a solution that is right for them given their professional relationships, experience and track record.
Copyright, publishing and licensing are complex issues to get across, especially when you are early in your career. Want to know more? Then read on.
(Or at the very least click here to read the summary of the below information)
Clearly, the time required to create a musical work for the screen has value, and you should set your fee accordingly (taking into account your level of experience and expertise, the amount and detail of music required, whether you will need any live musicians or a music mix, among a myriad of other considerations). However, what may be less obvious is that the following also have significant value:
Copyright in the master recording
Copyright in the music
Music license territories
Music licence length/duration
With this in mind, when negotiating the terms of your next commission, it's worth factoring in the following…
There are two parts of copyright to consider when composing and producing music for the screen;
copyright in the composition itself (the Music)
and copyright in the recording of that music (the Master).
Unless there is a written agreement, the author of a musical work (you, the composer) will automatically own the full copyright in that musical work or composition upon its creation.
If the composer also funds the recording of this composition they also automatically own the full copyright in that recording of the Music (usually referred to as the Master recording).
Typically the client who commissions the musical work will wish to own the copyright in the recording (The Master) of that musical work or composition. So, depending upon the agreement you sign, it would not be unusual for you to own the copyright in your Music with the client owning the copyright in the Master recording of that Music. This would mean that you could no longer use that recording of your Music, but it may be possible to re-record your composition and use this new recording on subsequent projects should your agreement permit this (more on this in the Licensing section below).
On low-fee jobs you may wish to negotiate to retain (or sub-license back) the copyright in the Master recording, allowing you to reuse that particular recording in subsequent projects. This is one of many possible ways to retain part of your assets' value without needing to increase your fee.
However, unlike releasing an album of existing songs, or performing a public concert, the act of putting music to pictures requires specific permission from the owner of the Music and also the recording. This is called a synchronisation (or sync) license.
Music licensing is specific type of permission to use copyrighted music, and can only be granted by the copyright owner of that music. Such licenses always come with terms and conditions which are negotiable. For example, the duration of the license and the territories in which the Music in the Master can be licensed for use are negotiable, as is the context in which you can permit your music to be used. Each of these considerations may be factored into your fee.
There may also be further important considerations. For example, an exclusive license to use the Music embodied in the Master recording would have more value than one which was not exclusive. This is because you would be able to re-record and then reuse or re-synchronise your Music in this new recording if it were not exclusively licensed in an earlier recording (provided you retained copyright in the Music itself). Therefore, if a client wishes to license a track, cue or entire score exclusively (thus preventing you from ever re-recording and exploiting that musical work) then the fee would typically be adjusted to reflect this.
Reducing the period of exclusivity to one or two years from the date of broadcast is one of many ways in which you can retain a degree of ownership over your asset while keeping the fee lower for the client. However, provided the budget is adequate, a music license may be given “exclusively, for the universe, and in perpetuity”. Note however, that
It is not necessary for a client to own either the copyright in the Music or the Master to license your music, it is simply permission to use the music under certain specific conditions.
It is also important to note that this type of licence is to synchronise the Music to the production. Any further use of the Music, such as printed sheet music, and/or a soundtrack album, is an additional right, that also has value, and should be negotiated as such.
Occasionally a client might request an assignment of copyright in the Music itself, not just the Master recording. You might see this type of assignment referred to as a 'buy-out', or 'work-for-hire' agreement.
Historically, assignment of copyright in the Music has not been commonplace in Australia. This is because the up-front fees here are often quite low, there is generally less work available, and our industry is partly made up of many smaller players as opposed to large corporations (studios) who have a disproportionate strength in negotiations.
Owning the copyright in the Music would entitle the new owner to reproduce or re-record the Music, to re-synchronise the Music on any subsequent production of their choosing or re-license the Music to third parties. In other words, the Music and any recording they also own or subsequently commission is theirs to do with as they please. You, the composer, no longer have any right to further use or exploit the Music.
Copyright in the Music is a significant asset and assignment of this copyright would usually only occur were the upfront fees high enough to adequately compensate the composer for the loss of potential future earnings.
Note that even if you assign the copyright in your Music to a third party you are still entitled to 100% of your public performance royalties unless you have explicitly granted part or all of your publishing in the Music to a third party. If you have granted a publisher a share of these royalties you have a statutory right to a minimum of 50%, of these APRA-administered royalties in Australia (but not necessarily for works commissioned and registered in other territories). This is known as the ‘writers share’. If anyone tries to convince you otherwise, then please contact us.
While you will retain a minimum of the ‘Writer’s Share’ of APRA royalties if you assign copyright in the Music to a third party, potential future earnings may be forfeited to the new copyright owners of the Music depending on the terms of your agreement.
Read more about royalties here.
What is a publisher? Traditionally at least, if you signed with a publisher for a fixed term they would exploit your musical works composed during the period of this term with a view to generating income for you both via (in part) the 'Publisher's Share' of public performance royalties (more on royalties here). The term “exploit” in this case is a good thing and means to maximise the placement or use of the recording of your music to generate income. Some publishers are expertly equipped to do this.
Although there are composers in Australia who use this model with great success, most screen composers are not published in this traditional sense. Partially this is because while many publishers are expert at exploiting pop/rock/dance/etc tracks, it can be more challenging to exploit music cues outside their original context. Also, screen composing commissions won't allow you (or your publisher) to exploit the music outside the film if you have licensed it to the client “exclusively”, and depending upon the terms of your contract, if your original client owns the Master recording you may not be able to re-use cues unless they are re-recorded.
However, some production companies or broadcasters have now set up 'de-facto' publishing companies or have an affiliated publisher collecting for them as a means of generating further income and to offset the cost of hiring you in the first place. In essence you would be 'published' but just for a single commission. This in itself may not be a bad thing. For example, if your publisher (in this case your production company or broadcaster) has a proven track record of successfully exploiting their properties (ideally worldwide and in free-to-air markets where the potential revenue stream is greatest) then granting a proportion of your publishing may be sensible or desirable. However,
in Australia it is not routine to hand over your publishing rights.
If, for a given commission, assigning part or all of your publishing is non-negotiable, you may wish to see an increase in your up-front fee to compensate you for the loss of up to 50% your royalty income stream. If this is not possible, then negotiating to retain a higher proportion of your publishing royalties, modifying the terms of your license, including a guarantee of future work on subsequent productions in your contract, (known as ‘first right of refusal’) or permitting you to reuse and re-exploit the Master recording are all possible ways to compensate you for the loss of your publishing should the fee remain low.
Remember though that in the absence of a contractual agreement, the publishing automatically resides with the composer!
Remember that the two main rights in a recorded piece of music are copyright in the Master recording, and copyright in the Music. These rights are assets which means that they have considerable value! They may be less tangible then your computer or car, but they may have an equivalent value to your potential earnings now and into the future. Likewise your publishing or the terms of your licensing agreement are also valuable assets that should, and indeed need to be factored into your negotiations.
However, composers are increasingly being asked to grant assets such as publishing and copyright in the Music to clients without a commensurate increase in up-front fee or compensatory concessions in their music agreement or elsewhere. To give away assets as valuable as copyright or publishing with little in return is certainly not a path to career longevity, nor is it a way to build respect and trust in an ongoing relationship with a client. Often the scope of rights you negotiate with a client the first time sets the precedent for future contracts!
Remember, for a client to use your music for the screen, at a minimum they need to obtain a synchronisation license. A client does not need to own your publishing to use your music, nor do they need to own the copyright in the Music. They don't even have to own the recording of that music! And so all of these assets are up for negotiation should the fee or other conditions not compensate you for the granting of these rights and loss of these assets you automatically own.
Negotiating successful outcomes for both parties is challenging for all of us, especially when you are just starting your career. Compromise is part of negotiations, but there is almost always a way to get to “yes” if your client respects you and what you can bring to their project. Start from the perspective of what you can deliver within a given fee rather than what you can't. Perhaps you might negotiate to deliver less music, or less complicated music if the fee is low. Perhaps you could retain copyright in the Master recording but sub-license it to the client (or the other way around), or agree to the fee on the condition the license is not exclusive. There are many different approaches. However, if you are making concessions, being reasonable and respectful, you will likely find the same approach reciprocated by your client and collaborator.
Please contact us for general advice and support if you need it. While we are unable to assist with contract wording for specific cases (this should be discussed with an entertainment lawyer who specialises in these sorts of agreements) we can tell you broadly what has been done in the past and what is standard industry practice.
Advocate for yourselves and for each other and share what you have learned!
(Please note the following disclaimer: The information provided on this page or any other part of this website is general in nature only, and is under no circumstances to be construed as legal advice. The Guild cannot advise you on specific points of your music agreement. Any questions relating to a contractual agreement should be directed to a qualified lawyer. Also, for any readers from overseas, the information above is referring to industry practise in Australia and may differ in your territory.)