A Brief Overview: Composer's TV and Performance Dollars
The “writer’s share” of public performance royalties are the lifeblood of television and film composers, sometimes making the difference between just getting by and financial success. But these back end royalties are not to be taken for granted. It’s vital for one to know how to collect and protect this income.
Performing rights organizations (PROs) like SESAC and its domestic and foreign counterparts license the music in television and radio broadcasts as well as other nonbroadcast venues. To insure the composer gets paid, it is critical to see that their royalties are not waived inadvertently or by virtue of pressure placed on the composer to do soww.winogradsky.com/about.php">Steven Winogradsky is an attorney and the President of The Winogradsky Company
in North Hollywood, California, providing music business affairs and legal support for composers, songwriters, music publishers, recording artists and television, film, video and multimedia producers.
Be diligent, even with good language in the contract
Many composers believe that they are entitled to these royalties as a matter of law. But, the term “writer’s royalties” is not found anywhere in The Copyright Act. In the world of television production, the right to collect these royalties is granted to the composer only by contract between the composer and the production company. Accordingly, unless there is proper language in this contract, the composer jeopardizes the receipt of those royalties.
Even with the correct language requiring that the writer’s share be paid there are still ways the composer might not collect their share of performance income. For instance, many cable networks and local television broadcasters attempt to circumvent PROs and lower the costs of performing rights payments by asking that the producers of local and syndicated programs license these rights directly to the broadcaster. The financial terms of that direct license may be substantially lower than what the license would be worth if collected by a PRO. Furthermore, a clause may be inserted in the contract stating the composer can collect the “writer’s royalties” from his or her PRO. But, the statement is misleading because the broadcaster has direct licensed the work and does not pay the PRO. So, no writer royalties are due to the composer from the PRO.
There are also instances of well known production companies and cable networks issuing agreements forcing composers to waive performance royalties entirely. And, while the PROs try to protect their composers through a variety of payment rules, sometimes the composer doesn’t get paid because of the agreement made by or with the production company.
What A Composer Can Do
The fact that many composer agreements state that the composer’s music is a “work made for hire” for the producer does not, for the most part, preclude the composer from collecting this income. “Work made for hire” has to do with authorship and ownership, not income. But, the composer must make sure that the necessary language is in their agreement and check the PRO to make sure the broadcaster is paying the appropriate license fees.
To protect my composer clients, I attempt to get language in the agreement stating that the producer continues to have the right to issue a direct license, but must do so for fair market value, consistent with industry custom and practice, and pay the composer their 50% “writer’s share” of these royalties, as would a PRO. I am not always successful in negotiating that language but I always ask and am frequently successful.
Another way to try to protect yourself, if the production company will agree, is to license your music to them instead of contracting to create a work made for hire that the production company owns. By licensing the work, the composer retains ownership, is his or her own publisher and controls the performing rights on both the writer and publisher side. But, frankly even in this instance the producer or broadcaster may require a direct license of the performing rights be included in the license fee, thus eliminating the ability of the PRO to license the work and pay royalties.
Having said all of this, a composer sometimes faces the dilemma of losing the job if he or she does not waive these rights. It is a personal decision which must be weighed with the knowledge that there is always someone willing to take a job for less money or on terms that might not be fair, just for the credit or chance to foster a relationship.
In closing, these are complicated issues, and composers need to arm themselves with knowledge and have good representation by an attorney, manager or agent to assist them in preserving and protecting a key source of income that can last for many years. While the PROs can attempt to educate their affiliates, it falls on the composer to decide what is best for their career and to protect themselves accordingly.
Byww.winogradsky.com/about.php">Steven Winogradsky, Esq
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