Copyright Information: Film Songwriter Deals

This Article Originally Published July 1998

by Donald S. 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:

1. The writer writes the song and gives the company an informal demo recording for a small amount of money.
2. 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.
3. 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."

From "All You Need To Know About The Music Business" by Donald S. Passman. ©1991, 1994, 1997 by Donald S. Passman. Reprinted by permission of Simon & Schuster, Inc.