86594426 rap film scoring presentation
DESCRIPTION
scoreTRANSCRIPT
Film Scoring Contracts Understanding Your Rights
March 7, 2012
© 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College) 1
The Plan Introduction What is a contract? What is its purpose? Who can help?
The Contract in Practical Terms
Rights allocations
Important Contract Miscellany
Case Study
Negotiation Points
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
2
What is a contract?
Contract
Consideration
Offer
Acceptance
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
3
What is the purpose of a contract?
Set expectations
that will govern the relationship
Delineate the mutually agreed
obligations of each party.
In the event of a default, having an
enforceable document.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
4
When do you need a lawyer? As early in the process as possible
Why do you need one? To help negotiate the deal
To review terms
To advise on the quality of the agreement
To advise on the specific terms
If you don’t have the money, you can still get help!
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
5
Pro Bono Resources
University Services
• Harvard Recording Artists Project
• Harvard Transactional Law Clinic
Pro Bono Services
• Volunteer Lawyers for the Arts
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
6
Harvard Law School Recording Artists Project
• Pro bono legal services for local musicians, venues, producers, labels, and anyone with a music industry tie What?
• Teams of eager Harvard Law students under the supervision of Harvard Law professors
Who?
• www.recordingartistsproject.com Where?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
7
Who are the parties?
You (the composer)
Who are you contracting with? • A producer? • Multiple producers? • A company? • Multiple companies?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
8
What are your services?
What are you providing?
How many minutes?
Write the music AND record it AND spot it AND mix it?
Are costs (musicians/studio time) included in your fee? Budget?
Subject to approval? Revisions?
Nature of the music?
All underscore?
Theme music? Original songs?
Separate promotional music?
Versions?
Purposes?
Film only?
Promotional uses? • Theatrical Trailers? • TV/Radio spots?
Soundtrack albums?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
9
What are you expected to deliver? Score in notation?
Recorded mix? Stereo or surround sound reduction?
Sample rate and bit depth?
Stem mixes? Versions?
Multi-track session files? (i.e., Pro Tools files)
On a CD or hard drive?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
10
Where is each party?
Where should they
send the raw elements?
Where should you turn in the
deliverables?
Upon completion,
where should they send
the check?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
11
What are the relevant time commitments? By when must you have completed your
obligations? Watch out for “time is of the essence” clauses! EXCLUSIVITY!
By when must they have completed theirs?
Are there any other landmark obligations? Completion of the score by a certain date? Recording by a certain date? Delivery by a certain date? Attendance required on a certain date?
Spotting? Film Mix? Premiere? Press?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
12
When do you get paid?
Package deal? • All up front or upon satisfactory delivery? • In installments?
• Execution/delivery/approval • Spot/commence/complete
Back end compensation? • When/how is your compensation calculated
and distributed? • When/how/how often can you verify?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
13
R I G H T S 1 0 1
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
14
Copyright Basics
Sound Recording • Works that result from the fixation of a
series of musical, spoken or other sounds
Composition • “Musical works, including any
accompanying words” that are fixed in some tangible medium of expression.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
15
Rights in the Composition
Synchronization Right • Right to record the music in
synchronized or timed relation to the pictures in a film or video.
Performance Right • Right to perform publicly the music
that is recorded under the Sync right.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
16
Rights in the Sound Recording Master Use License Right to the
Master Recording for a motion picture
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
17
Rights Allocations
• Grant specific uses to the film company for limited time
License
• You give the rights to the film company
Assignment • Rights belong
to the film company
Work-for-hire
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
18
F I L M S C O R I N G
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
19
Authorship
• Copyright of a sound recording rests initially with the “author” or “authors” of that recording.
The Copyright Act
• A composer enters into an agreement with a film company to provide the underscore for a motion picture.
• Who is the “author?”
Scenario
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
20
The Work-for-hire Classification
Work-for-Hire
Hiring party (the employer or
qualifying commissioning party)
No written agreement to the
contrary
Hiring party = author and copyright holder
of work
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
21
Answer
Composer’s contribution is characterized as a
work-for-hire Film company
= “author”
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
22
Belt and Suspenders
What if, by law, it is not a work-for-hire?
What will the contract stipulate?
Assignment in perpetuity
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
23
Ghost Writing
Work-for-hire relationship
Additional Confidentiality
agreement
No Work-for-hire
relationship
In exchange for $, you sign over your
right to receive credit for your
work.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
24
S O U N D T R A C K S
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
25
What the Composer Typically Receives
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
26
Mechanical license The right to reproduce and distribute to the public
copyrighted musical compositions
On any fixed, tangible mediums other than what accompanies motion pictures and other audiovisual works
Usually paid 50% of the mechanical license receipts of the original publisher No fixed statutory rate
Little leverage to negotiate
Industry Standards
Motion picture producers are reluctant to grant film composers the right to collect royalties on sales of soundtrack recordings.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
27
Miscellaneous Deal Points Screen Credit
Performing Rights Organization
Notices and Payments
Representations and Warranties
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
28
Screen Credits
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
29
Single-card credit in
the main or end title
Same length and duration as
other relevant parties
Credit in paid, print ads where
the full billing block
appears
Remedy: Company’s best efforts
to fix the error
Soundtrack Albums
You must ASK.
At a minimum, insist on back cover credit.
The record company controls.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
30
Performing Rights Organizations Which performing rights organization represents
you will be specified.
Matter of convenience. The information remains easily accessible and
contained within one document.
It makes it easier to communicate and bargain with other parties if they know everyone involved.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
31
Notices and Payments
Sent to the address and in the manner
specified in the contract.
Information contained is
important. Pay attention!
Notify the company of any changes in
your address or contact
information.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
32
Representations and Warranties What you promise is true. • The originality of the composition • No violation of third party rights • No liens or encumbrances rest on the score at the time of
contract • The producer is free to use the score
What if it is not? • Company can terminate the contract • You may be able held liable for the resulting damages
What the company promises. • Recognizes originality • Will not contest copyrightability
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
33
Case Study – Sample Film Contract
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
34
Who are you licensing to?
On what are they basing
your fee calculation?
For what can they use your score?
Is the contract
complete?
Who are you licensing to?
The licensee will be specified in the opening paragraph of the contract.
Make sure you are licensing your music to just one entity.
The artist’s contract licensed his score to each of the three producers meaning that any one of them could use his music as specified in the contract.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
35
On what are they basing your fee calculation? Different bases allow for manipulation and favor
certain parties.
It is likely you will not be compensated properly.
Audits are time-consuming and expensive.
Relevant statutes of limitations and incontestability clauses could lock out your claim.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
36
Compensation Bases • Clear and easily verifiable
Variety Box Office
• Most favorable to studios • All costs are recouped
before you are paid so this allows for the most manipulation.
Net Profits
• This includes box office receipts plus any ancillary revenue from TV, soundtracks, video games, etc.
Gross Receipts
• This is the same as gross receipts with the only reduction being the “off-the-tops,” which are standard industry expenses and easy to calculate and verify.
Gross After First Dollar
• This is the same as gross receipts but you do not start collecting until the company breaks even.
• The breakeven level is set initially at the time of contract based on current projections.
Gross After Actual Breakeven
• The studio will set the level of cash it must recoup before sharing profits with artists.
Gross After Cash Breakeven
• The studio sets a level it thinks it ought to recoup before the artists accrue fees.
• This can be set anywhere within the studio’s discretion.
Gross After Artificial Breakeven
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
37
For what they can use your score?
• The picture itself • Trailers • Advertisements
“Only in connection with the picture.”
• What if the score is used at film festivals and but rescored before its general release?
• What happens if only some of the score is used?
Producers do not have to pay if the Masters were not used in the “final
edited version of the Picture as generally
released.”
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
38
Is the contract complete?
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
39
All terms are complete • All expectations, rights,
and obligations defined and clear
Incomplete • Terms are left “to be
negotiated in good faith”
• Contract may be held invalid by a court
• Missing terms may be interpreted according to set statutory frameworks
Negotiating Your Contract Identify Parties
Issues
BATNA
Interests
It is not really a negotiation
Approach the discussion as if you are asking for a favor.
Figure out what your counterpart is willing to give.
Know what is most and least important to each party.
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
40
Negotiating Your Contract – Be Prepared
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
41
Think through various options.
List negotiable terms and set acceptable
ranges.
Are there any objective
standards or criteria?
How are you going to present
yourself?
Consider your current
relationship.
What reputation does his
company have in the industry?
Even if you are desperate, hide
it!
Negotiating Your Contract – Increasing Your Leverage
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
42
Leverage
Alternatives
Ego
Momentum
YOU
Process
Allies
Passion
Assumptions
Resources Available National
• Local Volunteer Lawyers for the Arts: http://www.vlany.org/legalservices/vladirectory.php
Harvard Law School
• Recording Artists Project: http://www.recordingartistsproject.com/
• Transactional Law Clinic: http://www.law.harvard.edu/academics/clinical/tlc/clients/entertainment.html
Further Reading
• All You Need to Know About the Music Business by Don Passman
3/11/12 © 2012 Recording Artists Project of Harvard Law School (President and Fellows of Harvard College)
43