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.
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?