There’s a difference between libraries of music & sounds and music libraries (it’s all in the syntax!): The former are banks of sounds—sampled from real instruments and/or electronically reproduced and/or created that composers use in digitally recording their musical works—and the latter provide recorded music for film, TV, video games, etc. Composers and artists make their compositions and/or recordings available to the music library that in turn makes those works available to music supervisors, directors, editors, etc. for use in their projects. The music library is basically an intermediary between the composer/artist and the companies licensing their music for use.
There are a number of music library models, most of which seek to own part or all of the composer’s publishing, and are based on the “we come to you (the filmmaker, supervisor, etc.) to try and get you to use OUR music instead of theirs” philosophy.
In the following examples, “you” means you, the composer, and while these deals are made with composers worldwide, I’m addressing things more from a U.S. perspective:
(1) The exclusive buy-out: You receive a certain amount of money to compose a piece of music for a music library—sometimes a pretty good chunk of change. You may or may not also perform that composition, or have a part in creating the recording of it with them. Regardless of your participation, the contract generally states that in return for that up-front money, you share in no part of any fees for the master use license (the license for using a recording) and/or synchronization license (the license for using a song/composition) when the library licenses your composition and/or any recording of it. You keep your writer’s portion only, and give up all publishing rights to the composition and to the library’s recording of it. After your initial creation fee, the only other money you will receive is from the “back-end” (writer’s side only) when any project airs on TV, appears in foreign (outside the U.S.) theatrical markets, etc.—wherever your performance rights organization (PRO) is collecting money for the performance of that work. The composition and recording are exclusive to that one library, since you did everything as a work-made-for-hire and do not own any of the licensable rights. They can sell the composition and/or the recording off or do anything they want with it without any additional payment to you. The only revenue you see after the initial payment from them are in checks/statements that come directly from your PRO (ASCAP, BMI or SESAC) for your writer’s performance royalties. If you were to ever re-record that composition, you could only present your recording (a master) for licensing (not the work itself) because you would own no publishing rights to the composition, even though you wrote it. Anyone wanting to use your new recording of your composition would have to go to the music library to obtain the synchronization license (the license granted by a composition’s publisher). Confused yet?
(2) The exclusive partial buy-out: Again, you get some money in advance (but not much) to compose and record the work. In this case, your contract states you’ll get a portion of the master use and/or synchronization license fees (never more than 50%, often only 10%-25%), and all the back-end writer stuff still applies. Your composition and the specific recording of it are exclusive to that particular library. You’ll receive statements/money from the music library for your portion of any license fees they generate and checks/statements from your PRO for back-end. While not the usual scenario, you can sometimes negotiate the right to co-administer the rights and license the composition/master on your own and pay the library their portion of the master use/synchronization fees that you secure. This is generally an option only if you’ve got at least a 50/50 deal with them.
(3) The exclusive non-buyout: In this case, you are not writing a work-for-hire, nor are you receiving any up-front money for creating the composition or recording. You are, however, allowing your composition and recording to be used for a specific time period (usually 2-3 years) exclusively by a single music library. You will participate in license fee revenue, and depending on how well you or your attorney (preferably the latter) negotiates, you keep 50% (or more) of your publishing and master rights as well as 100% of your writer rights. There’s usually a mutual option built into the contract that says if both parties agree, this arrangement will continue for another year, two, or whatever, and it will come up for periodic renewal periods. You’ll receive money from the library when they license the work, and from your PRO for your back-end. Again, you may be able to negotiate the right to submit the work and its recording for licensing on your own, paying the library their portion for anything you secure via your own relationships/avenues. Again, don’t count on it unless you’ve got at least a 50/50 deal in place with them. Once you sever the relationship, you will get back 100% of your up-front master/sync rights. The music library will still receive back-end monies directly from their PROs from whatever portion of the in perpetuity (forever) publishing rights they obtained with your initial agreement.
(4a) The non-exclusive pay a fee upfront for membership deal (often referred to as the “TAXI” model): Not really a music library per se: You pay $250+ per year to be a member of an organization providing a platform for your music to be reviewed for various projects. Whenever a project is seeking music via the service, that info goes out to the membership. You send what you think the project needs and pay another fee ($5-$10) to have your track heard internally. If the listener at their end deems it appropriate to send along to the supervisor (or whoever), they do. Either way, you’ve paid up-front to get your music heard. If the supervisor then thinks yours is the right piece for the scene, they contact you directly. In addition to your superlative composer skills, you now get to turn yourself into a licensing expert or hire a lawyer to review the license agreements (better option) and/or handle the negotiations and later chase down the money and cue sheets yourself. With some of these services, they may also offer a critique process whereby they’ll tell you why they didn’t forward your composition and recording of it for the specific pitch. This may be useful to the beginning composer or songwriter who is still learning what kind of material to pitch for what project and how to record it well; for seasoned composers, not so much. They own NO part of your work.
(4b) The non-exclusive “pay up-front to have a certain number of songs on our website, but that’s all we do” online deal: This is similar to the TAXI model, and something that’s cropped up more in our über-digital age. You pay an up-front fee to someone with an online portal open to anyone who wants to peruse music for their projects. The fee is based on how many tracks you upload to the service and may also include a monthly service fee for storage. It may not require potential music licensees to register in order to hear your music. If someone’s interested in your music, you’re put in touch with each other. End of the site’s involvement. Again, you’re on your own RE negotiations, licensing and cue sheets. There may or may not be quality control for content and/or supervisor/client vetting. In most sites of this nature there’s no tracking of your music’s activity (how often has each track been listened to, licensed, etc.).
(5) The non-exclusive, “you retain all ownership to your work, we take care of everything and you get free parking” deal: Not too many use this approach, and to be precise, since they’re not seeking to own any part of your compositions and/or recordings, they’re not really libraries, but central repositories for lots of libraries, artists, composers, songwriters, etc. to all park their music to be heard and (hopefully) licensed. Your compositions and/or recordings are represented on a truly non-exclusive basis—meaning you can have others representing the same works and the same recordings with no conflict. Nothing is re-titled, so you keep all your publishing back-end, and (of course) your entire writer portion. You can even record a famous song and have these folks rep your master of it for licensing (whoever wants to use your recording would still have to go to the publisher to obtain the sync rights). The arrangement is usually a 50/50 split of all up-front license fees generated only by this company’s efforts. If the company is making full use of digital technology and licensing via an online web portal, it’s simple to keep track of the source of the license fees and who got what from where, since you’ll get reports from the site or be able to see when/if your music is licensed. Site use for such online portals is free for everyone on both sides of the licensing aisle, but closed, in that no casual listener can hear (or download) your music. Supervisors, directors, etc. have to sign a terms of agreement and are checked out to make sure they are who they say they are. Artists, composers, etc. are fully vetted—not everyone’s gonna get in because there’s quality control in place. Those providing music have access only to their own accounts and music—no poking around and peeking in anyone else’s drawers. You pay nothing up-front to have your tracks included on the company’s website. With the old-fashioned, “send CDs of all our stuff to every supervisor we can find” licensed uses were a little more difficult to track, but most supervisors (myself included) usually went with the “he/she who got the track to me first gets the gig” approach. A supervisor using an online portal such as this has the advantage of finding songs and instrumental music from a myriad of diverse sources in one location, and all the paperwork is handled for them (and you) as well. You just keep making great music and don’t need to be a licensing expert. You can track the activity on your music, and while you may not know WHO is listening and/or licensing, you certainly know THAT they’re doing so. The supervisor is actually coming to you instead of vice versa. They have a vested interest in such portals because they don’t have to deal with thousands of CDs in their office or multiple Licensors. Everything is handled from one spot, and in some cases (depending on the service), licenses and cue sheets are automated.
(6) Finally, the “re-titling” of a single composition so that multiple libraries can have “exclusive” representation: This usually includes a single recording of the composition that goes out to all the libraries and is currently the most common kind of deal out there. The philosophy is this: You have a copyrighted composition to which you own all rights—call it “Love is Blue.” We (Library A) want an exclusive deal on it, but know that you don’t want to give up your ownership of the composition or your recording of it, so we don’t call it ownership, but take an exclusive deal on a new title, “Blue Love” and own some or all the publishing rights for that new title. We’ll re-title your master to correspond with the new composition title and rep that for licensing too. Now, Library B also wants that work, so they re-title it “Blue is Love.” It’s still the same composition and the same recording, but now Library B owns some or all the publishing rights to their newly titled composition, and is also using the same recording as Library A, but have re-titled it “Blue is Love.” This could be repeated over and over again, so there could be numerous titles attached to the same composition and the same recording of that composition. The music libraries say this is so they can easily track the back-end (publishing) revenue, and composers sometimes say this allows them to know how much money they’re earning from each library, thereby knowing which ones they should continue to use to rep their music. You may or may not participate in up-front master use and/or synchronization fees, depending on your contract. The library may or may not choose to let you know whether something has been licensed, or you could be totally in the dark until you receive a check a year (or two or three) later from your PRO. Today this is often referred to as the “Pump Audio deal” although it’s been in use by traditional music libraries for decades. With all the new sound recognition technologies out there (that identify works and recordings of them by sound, NOT by title[s] attached to the recording), and the fact that more libraries, labels and individual artists and composers are starting to avail themselves of such tech, tracking may be a whole new ballgame with a new set of challenges. Only time will tell.
We’ll delve more into direct licensing of your music and the ongoing debate surrounding re-titling in future columns.
And a reminder (from my attorney): All statements above are my opinions and not intended as legal advice or counsel. No warranty or representation is made as to the accuracy of these statements. You should hire an attorney before entering into any agreement or contract. So there!
© 2009 Gael MacGregor, Independent Music Supervisor • www.imdb.com/name/nm0532320
Gael MacGregor is a Los Angeles-based music supervisor, musician, songwriter, author and advocate for strong intellectual property rights for all content creators.