# What if a client wants to sell the track YOU wrote on iTunes?



## DenisT (Aug 1, 2016)

Hi, my question is pretty simple :

A client needs me to write a little piece of music. Then he asked me : "Will I get any rights? For example if I would like to sell my future song on the iTunes store? Could it be possible?"

What would you answer? What is the "rule" in the business? Should I say "yes, do whatever you want with it"? Or should I say that he can use the track for his project and nothing more?

It's kinda new for me, I'm not used to work for clients. I need your advices! 

Thanks a lot guys!!


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## CACKLAND (Aug 1, 2016)

All depends on your contractual agreement


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## DenisT (Aug 1, 2016)

Right now there is no contract. The client is a guy who needs music for a game, he likes my style, and that's why he asks me to compose something for him. Since there are no contract and conditions yet, I'm not sure what I should answer him...

I don't know why, but it seems wrong to me that a client could make money with MY music, just because I wrote it for his project... IF he wants to sell the track I wrote on Itunes, I should ask for a commission on each sale, isn't it ?


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## Mike Fox (Aug 1, 2016)

Unless you get royalties (which might be hard to track), or a BIG paycheck (or both) from your client, there's no way I'd let him do that. I mean, what if the song goes viral on itunes, and then what?

Btw, I would definitely write up a contract with your client that states all the details like these.


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## JohnG (Aug 1, 2016)

From what you are hinting, it sounds as though it's a low budget situation and you are not making, say, well north of $1,000 a minute for your work. If the fee is very low, it might be more reasonable to simply license your music to the game maker solely for the purpose of use in the game and maybe its advertising (they could use the music in a trailer to advertise the game without paying you another fee).

In this case, the low budget case, you would seek to retain the rights to the music including, say, the right to sell downloads of the music, make derivative works, add lyrics, make arrangements for live performance, and so on. You might need to have the right to use artwork from the game in order to market the music.

If, by contrast, you are making a very full fee and the company also is paying for an orchestra and other expenses (and you are not super well known), it is not unusual in the game world for the contract to be in the form of a full work for hire, with no further rights or payments to the composer. In that scenario, the game company would own the music and could exploit it any way they wanted forever, including selling downloads.

There are a lot of things to think about. Maybe you need a lawyer to help you. If you are a member of ASCAP or BMI you could try calling them and see if someone will talk you through some of the issues. If not, you might find some info on their websites to start to get your arms around the issues.

Apologies if this is all basic to you -- hard to tell from the question.


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## dbudde (Aug 1, 2016)

You might want to take some time to learn about mechanical recording licenses. You can read about them here:
https://www.harryfox.com/license_music/what_is_mechanical_license.html


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## DenisT (Aug 1, 2016)

JohnG said:


> From what you are hinting, it sounds as though it's a low budget situation and you are not making, say, well north of $1,000 a minute for your work. If the fee is very low, it might be more reasonable to simply license your music to the game maker solely for the purpose of use in the game and maybe its advertising (they could use the music in a trailer to advertise the game without paying you another fee).
> 
> In this case, the low budget case, you would seek to retain the rights to the music including, say, the right to sell downloads of the music, make derivative works, add lyrics, make arrangements for live performance, and so on. You might need to have the right to use artwork from the game in order to market the music.
> 
> ...



Thanks a lot! It's not basic at all, as I said it's kinda new for me, so it's really useful!

It's a small budget indeed, nothing huge. I don't even know that much about the project right now. I think the first situation might be the wisest. He could use the track for his project and to promote it, and that's all. 

I'll look for more information about that subject, thanks 



dbudde said:


> You might want to take some time to learn about mechanical recording licenses. You can read about them here:
> https://www.harryfox.com/license_music/what_is_mechanical_license.html



Thank you very much, I'll have a look at it!


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## Saxer (Aug 1, 2016)

It's also possible to have/give buyouts for a limited time. So it's possible to get back your rights after two years or so.


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## Mike Greene (Aug 2, 2016)

If you haven't signed any contracts, then you still own the music and are in complete control over it. Copyright law is very clear on this that ownership can can only be transferred through *written* contracts. (Except in the cases of an employer/employee relationship. Don't worry, though, because 99.9% of the time, composers are independent contractors, not employees. An "employee" situation would mean you are given pay stubs with taxes and Social Security deductions, workers comp, and all the other stuff that goes with being a legal employee. That's highly unlikely.)

Since you own the music, you have total control over what you want to allow or not allow, so you can dictate the terms and he can take them or leave them.

I would tell him that you'll host the songs on iTunes yourself, and if he links to them from his site or promotes them in some other way, you'll give him a 25% royalty.


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## JohnG (Aug 2, 2016)

interesting idea, Mike.

On the one hand, many producers have an instinct to want to own the music. But most of the time they don't do anything with it -- even when they say they will -- and because, under a work for hire contract, they (typically) legally control it, you can't do anything without their permission. As a result, many times it just sits on the shelf and doesn't earn you or them a penny. Music may seem important while they're negotiating with you but it's not very often a priority to producers of content, plus they don't often have expertise in how to exploit it anyway. So it ends up gathering dust.

On the other hand, for most smaller movies, TV shows and games, the amount of money to be earned from music sales is not vast so arguing about it and creating bad feelings is not usually worth it -- at all. Sure, it would be great if all of what we do ended up some day on a "classic" radio station and was played in elevators, in dentists' offices, and at the supermarket, because there is a lot of money over many years in those tracks. But those tracks are not all that common from lower budget beginnings. Sometimes, but not too often. So one risks spoiling the relationship if one adopts a harsh stance.

Mike's idea offers a number of attractions: you control the destiny of the music, you offer the producer a bit of the upside to mollify him, he doesn't have to do anything, plus he can't meddle with how you go about what you do. So he gets something and you retain the majority, plus you are running the show.


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## Mike Greene (Aug 2, 2016)

I avoid contracts when possible, just so that I'll keep control and hold all the cards. Plus I want to avoid the dreaded "indemnity clause." With TV shows, it's pretty rare that they don't insist on one, of course, but for commercials, even big ones (Mattel, Sony, AT&T), I've rarely had to sign a contract.

In Denis's case, I would avoid a contract if at all possible. There's nothing in the composers's favor in a contract. Even the _"Composer retains right to collect PRO royalties"_ clause is only there to grant an exception to the much worse _"Producer owns everything"_ clause.

If the producer insists on one, then don't use a typical contract as a template, because as I said earlier, there's nothing good in those. In other words, why on earth would a Composer present a contract with the words "Work for Hire" in it???

Instead, I'd say, _"Lets not waste a bunch of money on lawyers, since this is a pretty simple situation that we can just handle ourselves. Let's just use this:

1. Composer agrees to compose music for film XYZ and Producer has right to use this music in his film forever with no additional royalties. (Word it that way, because it sounds like you're being generous.)

2. Producer agrees to pay Composer $300,000 in advance, then the remaining $200,000 shall be paid upon completion of accepted score.

3. Mike Greene shall be paid $100,000, just because he's so damn good looking._

There. That's it. Maybe add a clause limiting the number of revisions, although personally, I never have them, because it's nearly impossible to write a comprehensive revisions clause that can't be abused by one side or the other. My experience is that they're unnecessary, because Producers tend to be reasonable. Besides, if things do get out of hand, you always have the option to just walk. (Don't tell him that, of course.)


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## Desire Inspires (Aug 4, 2016)

Mike Greene said:


> I avoid contracts when possible, just so that I'll keep control and hold all the cards. Plus I want to avoid the dreaded "indemnity clause." With TV shows, it's pretty rare that they don't insist on one, of course, but for commercials, even big ones (Mattel, Sony, AT&T), I've rarely had to sign a contract.



No contracts? Is that beneficial to you?


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## Daryl (Aug 5, 2016)

Mike Greene said:


> _1. Composer agrees to compose music for film XYZ and Producer has right to use this music in his film forever with no additional royalties. (Word it that way, because it sounds like you're being generous.)_


One small point. This won't work if you're a PRS member.

OK, as you were...


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## Baron Greuner (Aug 5, 2016)

^^^^ Good point. Missed that.


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## Mike Greene (Aug 5, 2016)

Desire Inspires said:


> No contracts? Is that beneficial to you?


Yes, because if there's no contract, then I still own the music I've written. That's beneficial because then I have the upper hand if there are any disputes later on. (U.S. copyright law says that ownership stays with the composer until there is a written contract stating otherwise.)

So for example, a client may decide they want to release a second film and reuse some music from the first film, claiming they already paid me for it. If no contracts were signed, then I maintain ownership and control over the music, so I can make them pay me a re-use fee or even stop them completely if I want.

Or the client may decide they want to sell the soundtrack on iTunes. If there's no contract? Then, _"Not so fast, buckeroo. That music is mine to sell, not yours."_

Daryl makes a good point, though. There are times where you do need a contract if you want to register with ASCAP/BMI to collect performance royalties. However, for my ASCAP experiences, those times are rare. If the producers fill out a cue sheet, then ASCAP does not require a contract. The cue sheet is all they need. However, for commercials where the client doesn't register with ASCAP and I've had to do that myself, in those cases, ASCAP has made me present a contract with language that says I retained the right to collect Performance Royalties.


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## airwavemusic (Aug 5, 2016)

DenisT said:


> Right now there is no contract. The client is a guy who needs music for a game, he likes my style, and that's why he asks me to compose something for him. Since there are no contract and conditions yet, I'm not sure what I should answer him...
> 
> I don't know why, but it seems wrong to me that a client could make money with MY music, just because I wrote it for his project... IF he wants to sell the track I wrote on Itunes, I should ask for a commission on each sale, isn't it ?


you should by all means keep the rights. Register the track ASAP to your local author rights society and performer rights agency. If the client disagrees, tell him to provide a proper contract licensing the music you made for him, and that grants you royalties on each single sale. A 30% rate is a minimum today, and in your case I'd even ask for a 50/50 deal on net income with evidence of all iTunes sales (available through your client's digital distributor), an artist royalty statement should be sent twice a year minimum, within 90 days following june 30th and dec 31st. On a sidenote, I strongly recommend anyone dealing with people to get a third party in charge of deals so one can focus on the music only. I got screwed too many times in my circuit (and you would be scared of the names!), and the digital music business is a MAZE, so I have an agent who now deals with people for me. I never do anything unless my agent sends me his ok. He takes a big chunk of my earnings but at least, I get paid 99% of the time.

Alternatively... if the fee is high enough, you're free to leave the sales percentage, but by all means register the tracks to your local rights society. Apple pays author rights, if you don't do this, that means the client even has the right to put his name instead of yours as the composer and get 100% off the publishing instead of his share. Careful with publishing and master rights, they're completely different things!


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