Composer Royalties on DVDs and Downloads: Why Not?

By • January 29, 2008

For the last two decades, while writers and others have received residual income on the sales of videotapes and DVDs, composers have received nothing from this highly lucrative and expanding income source for films and television programs. We’ve discussed this before here in this column, and I think it deserves another look.

Why no composer royalties for these uses of our music? In the case of DVDs, it was a simple case of those who came before us not fighting for that royalty. In the case of downloads of films and television shows, that’s an ongoing situation that I believe composers should be part of, not sitting on the sidelines hoping ASCAP and BMI will somehow prevail after ASCAP’s initial legal defeat on the issue last year.

But winning royalties for DVDs and/or downloads of film and television productions will be a tough battle and I believe it’s going to take a fundamental shift in the attitude of composers from an attitude of letting “others” take care of things, to an attitude where “we” take care of determining our own destiny in this industry. That is a huge shift from the current attitudes of many composers which perhaps can best be described as being some combination of the traits of being a mercenary, apathy, fear and hope that others will solve the problems we face. Simply put, if we are going to accomplish change in this area, we need to start thinking like an industry instead of a bunch of individuals who are only concerned for our own well-being and income.

The DVD Problem

DVD royalties are royalties plain and simple, but are based on the sale of an audiovisual product rather than a phonorecord. This difference is critical.

Some definitions:

Phonorecord – As defined by the Copyright Act, a phonorecord is a physical object in which sounds (but not referring to the sounds that go with a movie or audiovisual work) that are fixed, such as a CD. And the good news is that most composer contracts allow for mechanical royalties on phonorecords, such as soundtrack album CDs, etc.

Audiovisual Work – The Copyright Act defines an audiovisual work as being a series of related images that are capable of being shown by some device, such as a projector, along with any sounds (including music) that accompany the visual portion of the work. This is the category for movies and television shows, and includes these productions are they appear on DVDs, and the bad news is that virtually no composer contracts allow for composer royalties on audiovisual works.

So the question is, why don’t composers receive royalties for the sale of audiovisual works (aka, DVDs)? There is no legal reason why composers cannot be paid royalties for DVD sales, only a very ugly business precedent where the studios basically say “no.” But let’s not forget that other crafts, including writers and others, receive residual payments for the sale of DVDs. These “reproduction royalties” (“mechanical royalties” typically refers to phonorecord royalties) simply need to be fought for by composers who are willing to do so.

The Download Problem

A major legal decision went against ASCAP last year where they claimed that downloads of films and television shows were public performances and therefore they should be able to charge license fees for these transactions and pay them to the writers and publishers involved. Whether that case will ever be won by ASCAP is a matter yet to be determined, as they seem intent on appealing the case. I think composers would be much, much better off if ASCAP and BMI administered download royalties, but would hate to see the “background instrumental” music penalty (as discussed here ad nauseum the last few days) get locked into yet another stream of royalties. Still, some royalties would be better than none.

A Possible Solution

So the question becomes: what can we as composers do about this situation. I think there’s a couple of thing we can start doing now:

1. Work with some qualified music attorneys familiar with film and television work to develop some standard contract language to cover these areas and provide reasonable, fair royalties for composers in these circumstances.

2. Fight to have them included, even if on small films, in our contracts.

It will take time, and there may be much resistance from filmmakers and production companies, but I refuse to believe that this terrible business precedent needs to be treated like a problem that can’t be solved.

We can start the solution today, and while it may take some time and there may some hurdles along the way, isn’t it better to have said that we, as an industry, tried to improve things than to simply accept something bad and assume we can do nothing?

Comments

By Stephen Caraccia on June 10th, 2008 at 10:12 am

Hi, Mark – I am the owner of Main Street Music in downtown East Greenwich, RI. Your name has been given to me by Mr.Dale DeJoy as a person who both publishes and performs music. Here’s my question – where can I purchase transcriptions of some of the jazz/rock greats, for example, “Turn It On Again,” Genesis, “Synchronicity II,” the Police, for my better students? Can you point me in the right direction?

By Just Saying... on June 25th, 2008 at 12:42 pm

The problem is the studios will never honor this. They will always keep saying its company policy or network policy. The rates for composers are already dropping significantly and no longer are studios honoring other studio precidents. It is a bad time for composers and yet SAG thinks they should strike. Composers need a union so they can strike and really show the hollywood community just how important music can be to a film…

By Agreed. on November 18th, 2008 at 3:06 am

i completely agree with Mark and the previous comment- it sickens me to see how poorly composers are treated.

By Marlon Bishop on April 10th, 2009 at 10:59 am

Isn’t this a matter of law? Mechanical royalities for CD pressings and ITunes downloads are not up for grabs. Why are DVDs any different? This makes no sense. Is is just that the publisher of the film (the production company or studio) isn’t required to pay a portion of the royalties to composers? This is, obviously, garbage. Revolution anybody?

By Les Hurdle on July 9th, 2009 at 1:22 am

Hi Marlon,

Mechanical royalties for CD’s Downloads etc. are in fact ‘up for grabs’……… I get mine where applicable.
Why, it is in my contract.

If composeers roll over just to get the gig, then expect to also bend and grab ankles.

it’s the fault of composers, no one else.

Les

By Tony on July 16th, 2009 at 10:38 am

I could be wrong but doesn’t the composer typically get paid by the publisher via a “buy-out” for DVD income in the synchronization deal for the song. This typically happens with many gaming companies too.

By Bob on August 13th, 2009 at 6:25 am

I recently realized that just about every show I ever composed has been released on DVDs, and was wondering WHY I never got any residuals for them… After reading this, NOW I know!

Sux… but a composer getting screwed? What else is new!

Thanks for the info!

By Dick on October 22nd, 2009 at 11:36 am

I compose movie scores from my base in the uk and produced my first Hollywood score in 1983 when I was asked to give up the Mechanical Copyright for video sales as a pre-requisite of my getting the gig. All the major studios simply said they needed those rights in order to have control over distribution. Videos were just a very silly novelty. So most of the composers simply said “No probs – stuff your tiny video sales – give me $50,000 commissioning fee (big money then) and you can keep the musical mechanicals profit for a few niche market videos” ….. Ouch-!!

The idea of a potential mass sales market wasn’t really an issue ….. big mistake …… from there the rot set in.
However I do often fight for DVD rights and get them. Even then, there can be difficulties because distributers of movies often assume that as they’ve not been informed by producers of composers interest in mechanical dvd royalty…… this is a problem that the composer should take up with the producers. A movie has to be quite successful before it’s worth paying out for lawyers to chase these rights. It stinks – in the UK we have a saying which is “possession is nine tenths of the law!” …… it certainly holds with many DVD music royalty scenarios – even when you have a contract to say they are yours!

A publisher told me recently that he’d had rather a good week as one of his composers had just received his DVD share for a well known UK TV comedy show that was out on DVD …… it was £1million. I nearly fell off my chair ….. that was the figure because say one million DVD’s which have say a 7% music royalty …… for a cheap but successful TV comedy series …… the earnings can be a lot more than a Hollywood movie!
Grab em when ever possible …… on everything you do! Long live Blue Ray!

By Steve Wolf on November 9th, 2009 at 4:27 pm

Insightful writing. Great comments.

This is yet another income stream which should be subject to standardized minimums. These, and many other income streams, can and should be automatically included in a comprehensive pay package for ANY composer – backed up by unionized teeth!

Spread the word!

By Dan Mallender on February 12th, 2010 at 1:25 am

I work as TV composer in the UK and when I’ve asked for DVD rights I’ve been told it’s a deal breaker and if we don’t like it, they’ll use someone else. This is coercion plain and simple as the TV companies themselves are complicit with publishers who should represent the composer but actually represent the interest of the producers instead. The only way around it is an organised campaign to amend copyright laws to protect composers interests in combination with big name composers insisting on DVD rights for all. Would the studios tell Tim Burton he can’t use Danny Elfman or Ridley Scott he can’t use Hans Zimmer? The campaign needs big names onside. Strike action is not the way forward as blanket license companies such DMX or Audionetworks would fill the temporary vacuum and we’d be even worse off than before!

By Dan Mallender on February 12th, 2010 at 1:26 am

Why long live Blu-Ray by the way Dick?

By toxic avenger on April 23rd, 2010 at 2:37 pm

You guys have got to stop representing yourselves in negotiations. You’ll always give up rights to get the gig ior undercut siomeone else’s bid to get the gig.

And that’s why, over the long haul, the general pay drops.

You don’t need a union–you need to hire a lawyer.

The fault dear brutus is not in the stars, but in yourselves.

Instead of worrying asbout having your ego stroked, you need to face facts. I know that’s tough and you’d rather someone else fought.

Or maybe you think if you complain on some message board, it’ll matter.

By Ronald Vaughan on May 27th, 2010 at 11:36 am

I am a WRITER with both BMI and Harry Fox….however,I never got paid any
DVD (or download) royalties from the use of a movie that I’m also in…and
I’d contributed a song to that music documentary.

I was told by Harry Fox Agency to “negotiate directly with whoever’s using
the music” or something,because there are NO music agencies collecting royalties for DVD use (or downloads from a DVD).

By Jimmy Ginn on June 18th, 2010 at 8:25 am

This a real problem as in my BOOTLEGGERS cut the credits off the movies I own the largest Grindhouse movie “POOR PRETTY EDDIE” and nobody knows, but the so called PRO’s , and as you say you can be with the “contracts” and they somrone else with a computer make the same claim ?

By Toxic Avenger on October 29th, 2010 at 12:13 am

Too many no talents are getting paid for the flatulence they call music. Most scores today are crap and composers of those scores should be flipping burgers which is a noble profession rather than scoring.

Really good film music died with the last century.

By Mike on February 17th, 2011 at 3:03 pm

(Toxic Avenger) – perhaps you are correct, but on the flip side there are some very talented composers out there too. I guess I’m just a half glass full kind of guy

By Tim Hollier on June 25th, 2012 at 1:42 am

Mark, long time!!!!

I have in the last year commissioned and financed over fifty major film scores, ranging from judge dread to great expectations..
Having invested some £5 million I am of course very keen to obtain my DVD mechanicals .. I might be near a breakthrough…
Tomorrow in LOndon at the PRS I am meeting our old friend and chairman of the PRS Guy Fletcher, together with Sarah Rodgers CHair of BASCA and PAul Clements. MD and MCPS..
Subject
Changing the membership agreements when joining MCPS where when a COmposer received a commissioning agreement, it will say “subject to the rules and regulations of PRS. and MCPS, currently they just say”subject to the rules and regs of PRS…

Now this is the case in ITaly for all SAIE members, recently on one small UK film DOrian GRay we received some £40k in mechanicals from the DVD..

I think we should make the centred inEUrope to start with and recommend that as many of your members as possible jointMCPS. They will get all the support they need from Guy and his team. This at least will mean that US composers are getting mechs in most European territories…

It’s early days but we are beginning to get attention..alas one of the biggest UK producers BBC simply say, “we can’t sell a film if we have to pay mechs….Andrew MCrory SHand managed to force them to pay mechs on telletubbys, George FEnton has done well on his catalogue, thanks to the support of his publisher the late Terry OAtes…

If anyone reads this overnight. My meet is at 2pm LOndon time TUesday..

Sorry I have found your site o late in the. Day..

Onwards

Tim Hollier
Director
The Atlantic SCreen Group of COmpanies

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