# Performing Rights & ASCAP / BMI - My First Feature



## ryanstrong (Jan 11, 2013)

This past summer I was brought on to score my first feature film through a personal relationship with the director of the film. This was his first feature length, and the producer's first too. Friends making a film on a micro budget.

With this being a first time for all of us, and being on a shoe string budget we just drew up our own contracts that all of us were happy with regarding who got paid what from the bottom line and simply just got to work. I was granted full rights to any income made from the sales of the soundtrack in addition to my percentage of the bottom line.

The film finally finished 9 months ago and through a series of festivals, interviews, and meetings, to our surprise the film recently got picked up by major US and international distributers with some really great places of distribution (Redbox, Netflix, Best Buy, Target etc.).

This is great but now comes the contracts and I'm in kind of a bind as this is all new to me and this is the first time I'm coming across phrases like "performance rights" etc. etc.

I am not a member of ASCAP or BMI and understand that I should be? Which one?

The U.S. contract doesn't mention anything BUT the international contract is asking if the director has the performing rights? Is that typical? Why would they ask? Doesn't the composer ALWAYS have the performing rights? I'm assuming because they are wanting the performing rights I'm guessing?

Sorry I know I need to do my homework here but frankly I don't even know where to begin doing my homework other then calling ASCAP on Monday but the distributers are needing signatures quickly, so I wanted to reach out to my friends here on VI for a little help.

Thanks!


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## ryanstrong (Jan 12, 2013)

I guess this should probably go in Working In The Industry. If mods need to move this.


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## Alex Cuervo (Jan 12, 2013)

Hey Ryan, I don't have any answers for you unfortunately, but I wanted to congratulate you on your first feature.

I use BMI, but it's for band stuff, not scoring (yet!), but it's pretty easy to use registering tracks online. A little clunky, but nothing raised any flags. You can see detailed statements after the royalty checks go out. But, I'm sure there are many around here that can offer much better insight.


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## Mike Greene (Jan 12, 2013)

I don't know what they mean when they're asking if asking if the director has the performing rights. My guess is that they're just asking if all rights are cleared and taken care of. They don't want to get sued, so this is a reasonable question (although an odd wording.)

As far as getting PRO royalties, it's pretty easy. All you need to do is make sure there's a clause in the contract saying something like: _"Composer retains right to collect writer's and publisher's share of performing rights royalties."_ You might not get the publisher's share, of course, but if you keep cool and don't draw too much attention to it, you might get it.

Then you need to make sure you're on the cue sheet and that that cue sheet gets submitted to ASCAP or BMI. (Truth be told, it doesn't even matter if you're in the contract, by the way, because ASCAP or BMI aren't going to check. The only reason for having it in the contract is insurance for you that they'll put you on the cue sheet. Cue sheets are all that matter.)

As far as which is better, that's a question that's been asked for decades with no definitive answer. I've been with ASCAP for 25 years and I'm sure I would be just as happy if I had been with BMI. I'd go with whichever one is easier to join, or if you have a cowriter, go with the same as him so that publishing will be easier.


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## ryanstrong (Jan 12, 2013)

Mike Greene @ Sat Jan 12 said:


> I don't know what they mean when they're asking if asking if the director has the performing rights. My guess is that they're just asking if all rights are cleared and taken care of. They don't want to get sued, so this is a reasonable question (although an odd wording.)
> 
> As far as getting PRO royalties, it's pretty easy. All you need to do is make sure there's a clause in the contract saying something like: _"Composer retains right to collect writer's and publisher's share of performing rights royalties."_ You might not get the publisher's share, of course, but if you keep cool and don't draw too much attention to it, you might get it.
> 
> ...



I need to ask verbatim what specifically they are asking, it's just what the director told me.

Can/would a distributor ask for the PRO royalties?


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## Ed (Jan 12, 2013)

Mike Greene @ Sat Jan 12 said:


> As far as getting PRO royalties, it's pretty easy. All you need to do is make sure there's a clause in the contract saying something like: _"Composer retains right to collect writer's and publisher's share of performing rights royalties."_ You might not get the publisher's share, of course, but if you keep cool and don't draw too much attention to it, you might get it.



Is it normal to get publishers, or am I conning a director into thinking they dont usually get it?



> Then you need to make sure you're on the cue sheet and that that cue sheet gets submitted to ASCAP or BMI. (Truth be told, it doesn't even matter if you're in the contract, by the way, because ASCAP or BMI aren't going to check. The only reason for having it in the contract is insurance for you that they'll put you on the cue sheet. Cue sheets are all that matter.)



Any basic steps you can take to make sure you are on the cue sheets?


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## ryanstrong (Jan 12, 2013)

Ed @ Sat Jan 12 said:


> Mike Greene @ Sat Jan 12 said:
> 
> 
> > As far as getting PRO royalties, it's pretty easy. All you need to do is make sure there's a clause in the contract saying something like: _"Composer retains right to collect writer's and publisher's share of performing rights royalties."_ You might not get the publisher's share, of course, but if you keep cool and don't draw too much attention to it, you might get it.
> ...



Yeah this is my question - what is standard? Does the director usually get the performance rights?

I have the question clarified... they are asking if the producer has the performance rights to the songs as the distributer is wanting the performance rights.


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## RiffWraith (Jan 12, 2013)

Director/producer/studio/owner of the film gets publishing/performance rights. This means that they own the music, and the composer can not do anything else with any part of the score, in any part of the world, in perpetuity. Then there is:



Mike Greene @ Sun Jan 13 said:


> All you need to do is make sure there's a clause in the contract saying something like: _"Composer retains right to collect writer's and publisher's share of performing rights royalties."_



Save for the publishing part; the composer doesn't collect publishing, unless an agreement is reached beforehand, but that is unusual.

Cheers.


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## ryanstrong (Jan 12, 2013)

RiffWraith @ Sat Jan 12 said:


> Director/producer/studio/owner of the film gets publishing/performance rights. This means that they own the music, and the composer can not do anything else with any part of the score, in any part of the world, in perpetuity. Then there is:
> 
> 
> 
> ...



So then what's the point of ASCAP/BMI for the composer if generally the director/producer/studio/owner of the film gets publishing/performance rights?


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## RiffWraith (Jan 12, 2013)

rystro @ Sun Jan 13 said:


> So then what's the point of ASCAP/BMI for the composer if generally the director/producer/studio/owner of the film gets publishing/performance rights?



If it weren't for ASCAP/BMI, how would you collect the writer's share?


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## gsilbers (Jan 12, 2013)

rystro @ Sat Jan 12 said:


> RiffWraith @ Sat Jan 12 said:
> 
> 
> > Director/producer/studio/owner of the film gets publishing/performance rights. This means that they own the music, and the composer can not do anything else with any part of the score, in any part of the world, in perpetuity. Then there is:
> ...



there is both copyright and publishing right. 

you get 100% copyright and they get 100% of publishing. 


you can also license your music to the movie. get both. common for lower budgets. 
its a bit weird for some producers/lawyers if they are used to the above. but simple exclusive worldwide license will give you more royalties for those lower upfront gigs. 

for now, sign up for ascap or bmi and the producers will submit a cue sheet with your tracks to the pros.


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## ryanstrong (Jan 12, 2013)

RiffWraith @ Sun Jan 13 said:


> rystro @ Sun Jan 13 said:
> 
> 
> > So then what's the point of ASCAP/BMI for the composer if generally the director/producer/studio/owner of the film gets publishing/performance rights?
> ...



I don't even know what a writer's share is. Sorry for these very stupid questions. There was just zero talk between any of us about copyright/writer's share/performance rights/royalties etc. etc. It was like cool let's make this film, you get x%, I get y%, done.

So... what does the producer then need to tell the distributer? They have the performance rights, but just not the writer's rights? And the writer's share is then handled through ASCAP? How much is the writer's share? How is that negotiated?


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## TheWillardofOZ (Jan 13, 2013)

They can't take the writer's share. That's yours by default. What you can do is negotiate for the publishing share though.

It gets weird when they start talking in percentages because the two are separate entities. I originally thought that they were both two parts of a whole royalties package, but it's actually 100% writers share and 100% publishing share.

I hope that was clear enough to make sense. Good luck and congrats on the feature!


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## Alex Cuervo (Jan 13, 2013)

These cover the basics (and beyond) of PRO royalties:

http://www.macprovideo.com/tutorial/mus ... -royalties

http://www.macprovideo.com/tutorial/mec ... -licensing


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## Mike Greene (Jan 13, 2013)

Ed @ Sat Jan 12 said:


> Is it normal to get publishers, or am I conning a director into thinking they dont usually get it?


I'm more of a TV guy, so take my advice here accordingly. But I'd guess that with lower budget independents, it's common to keep your publishing. If they balk, you could say, _"Well, you guys didn't pay me very much , so I naturally assumed . . . "_



Ed @ Sat Jan 12 said:


> Any basic steps you can take to make sure you are on the cue sheets?


Unless it's a major studio, clients are usually more than happy to let you fill it out yourself. Cue sheets are one of those PIA jobs that no one wants to do.



TheWillardofOZ @ Sun Jan 13 said:


> They can't take the writer's share. That's yours by default.


If it's a work for hire contract, they can deny it to you. Not just out of spite, but also for business reasons. This is a fairly recent trend and is what some "Direct License" shows do. They save the networks money by shutting composers out of their PRO royalties. (Not all Direct License shows are shady, though. Some do negotiate fair alternate rates.)

And although it's against ASCAP and BMI rules (but sadly, not against the law,) there are plenty of instances where producers put their own name on the cue sheets as composer. Saban was notorious for this and made millions in composer royalties off shows like Power Rangers.


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## Mike Greene (Jan 13, 2013)

rystro @ Sun Jan 13 said:


> I don't even know what a writer's share is. Sorry for these very stupid questions. There was just zero talk between any of us about copyright/writer's share/performance rights/royalties etc. etc. It was like cool let's make this film, you get x%, I get y%, done.
> 
> So... what does the producer then need to tell the distributer? They have the performance rights, but just not the writer's rights? And the writer's share is then handled through ASCAP? How much is the writer's share? How is that negotiated?


We're just talking about PRO royalties here. The part where you and the director said, _"cool let's make this film, you get x%, I get y%, done."_ is a completely different thing, where you're talking about what split you each take from sales. (Kinda like "Mechanical Royalties" with records.) None of that has anything to do with your PRO (Performing Rights Organization) royalties.

PRO royalties are just extra money that comes from airplay. The producers of the film don't pay anything. The distributor doesn't either. It's the networks that do. Each network already pays some annual lump sum amount to ASCAP and BMI. Whether your film airs or not, that lump sum has already been paid. ASCAP and BMI takes all these lump sums from all the networks, then sends out checks to us. So it's really just free money that's intended to go you, the composer.

The amount isn't negotiated, by the way. ASCAP just counts how minutes got played, at what time, on what network, and they pay you based on that. There's a set "per minute" rate for each individual network. We have nothing to do with negotiating that.

So there's no negotiating you have to do with your director or producer. Oh wait . . . other than who (you or they) takes the Publisher's Share. Speaking of which, here are the basics of Writers and Publishers shares.

Somebody has to file paperwork, register copyrights, and do all the miscellaneous office work associated with a song. That's the publisher. A zillion years ago, ASCAP (or BMI?) decided this administrative work is worth half (yes, half!) the royalties. Hence the term "Publisher's share." Your half is called the "Writer's" share. This may sound like a bad deal, but back in the old days, publishers would take on a lot of risk by giving advances to new unproven writers, paying studio time for demos, etc., so it kinda made sense.

Today, of course, there's not really all that much "work" to do as a publisher. So it's typical for songwriters to be their own publisher and collect that portion themselves. The Publishers' Share payments from ASCAP are actually _separate_ payments (not even the same day as Writers payments.) So the songwriter sets up his own publishing company, files that name with ASCAP, gets a bank account, and ASCAP send the publishers share to that company. A happy songwriter!

But . . . film production companies, being the greedy bastards that they are, realized they could strong arm us into letting _them_ take the publishing. _"Want the gig, kid? Then we'll be taking the publishing."_ Even John Williams doesn't keep the Publisher's Share. There are rare exceptions, but for major studio gigs, the Publisher is almost always the studio.

Independent films are another matter, though, since composers often don't get paid much, so the Publisher's Share is an extra little bone the producer might throw to the composer, so the composer doesn't feel abused quite so badly. The film hardly ever gets picked up, though, so that Publisher's Share (and Writer's Share) is worthless. Except for you! o-[][]-o 

As far as what to tell the distributor, I'm almost positive they don't care about any of this. All they want to know is whether all music rights are cleared and they won't be sued. They don't give a rats ass about whether the director collects the Publisher's share or whether you do. The producers just need to tell the distributor all music is written by Ryan Strong, and yes, there are signed contracts given them rights to use this music.


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## rgames (Jan 13, 2013)

Mike Greene @ Sun Jan 13 said:


> _"Want the gig, kid? Then we'll be taking the publishing."_ Even John Williams doesn't keep the Publisher's Share. There are rare exceptions, but for major studio gigs, the Publisher is almost always the studio.


That's true but a little misleading because most major studio gigs are work-for-hire. So the composer is paid up front and all music becomes the legal property of the studio. What normally happens is that the contract grants the writer's share back to the composer. So I believe the situation is different than what Ryan is describing.

If it's not work-for-hire and you're paid little or nothing up front then I think it's a lot more common to keep the publishing. If the contract doesn't specify then Ryan has every right to assume he owns both writer's share and publisher's share.

Don't re-negotiate away what you already got!

rgames


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## Mike Greene (Jan 13, 2013)

rgames @ Sun Jan 13 said:


> Mike Greene @ Sun Jan 13 said:
> 
> 
> > _"Want the gig, kid? Then we'll be taking the publishing."_ Even John Williams doesn't keep the Publisher's Share. There are rare exceptions, but for major studio gigs, the Publisher is almost always the studio.
> ...


~sigh~ Which is why my next paragraph started with the words, _"Independent films are another matter, though."_


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## Jimbo 88 (Jan 13, 2013)

Here is my advice...Go back and create a Music Cue Sheet. Put yourself down as both the Publisher and Writer and turn it in to both your PRO and the director. The people I work with (TV just like Mike Greene) always create a "rights bible" for a project. it includes all the legal stuff about the actors and everything else. Get your Music Cue Sheet included with that.

Like everyone says you get the writers royalties and they get the publishing, but if they do not fill out the proper paper work the Publishing royalties will go unpaid. Someone might as well get it and it might as well be you.

If you are asked or called out or told you do not get the Publishing...well then fine, go back and change the Cue Sheet. 

Don't give up the writer's share.


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## rgames (Jan 13, 2013)

Mike Greene @ Sun Jan 13 said:


> rgames @ Sun Jan 13 said:
> 
> 
> > Mike Greene @ Sun Jan 13 said:
> ...


Yes - of course


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## ryanstrong (Jan 14, 2013)

Thanks guys - went ahead and created a Cue Sheet on my own and I think that helped things for sure. Made them feel like it was one less thing they had to deal with. Working through some other things too.

Thank you again everyone. Will update you all - excited to get this music out!


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## Inductance (Jan 16, 2013)

rystro, congratulations! I wish you success. 

I am in a situation very similar to yours--the film I worked on did great at a festival, and now there is talk of a full commercial release. I am not currently registered with BMI, but I plan to before the film hits theaters. It would be kind of unwise for me not to.

To echo what a lot of people here have already said, performance royalties are paid by the venue or network--whoever is playing the film. They aren't paid by the production company that made your film. 

Performance royalties are divided into a publisher's share and a writer's share. The production company is the "publisher," and you are the writer. Usually, the publisher gets 100% of the publishing share, and the writer gets 100% of the writer's share (I think this is the default if it's not specifically spelled out in the cue sheets). But these percentages can be negotiated. For example, the production company might want to give you some or all of their publisher's share, OR there might be two writers credited for a cue (so they'd split the writer's share for that cue).

Again, good luck and congratulations!


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## ryanstrong (Jan 16, 2013)

Thank you Indcutance.

So I am registered with ASCAP as a writer and publisher. I submitted a Cue Sheet to the Producer with me listed as writer and publisher 100% of each and every cue, and they are now submitting that cue sheet!

SO does this cover me? Or do I still need language in the contract that states...

"Composer retains right to collect writer's and publisher's share of performing rights royalties."

Or does the Cue Sheet cover me?


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## Inductance (Jan 16, 2013)

I'm not sure. I'd probably try to put it in the contract as well, just so everything is covered and there are no problems later on down the road. That's what I'll be doing in my situation. 

When I got this gig, it was a verbal/handshake agreement and that was that, but we've realized that we should probably put it on paper. It's a good habit to get into!


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## dinerdog (Jan 16, 2013)

rystro - That should cover you as long as no one from the production company is filing their own cue sheet listing themselves as publisher. 

The best way to keep up to date on things with ASCAP is to activate your online member access. You will (should) have two different accounts once everything is in the system. One for "Writers" and one for "Publishers". When all is said and done they should both list all the cues you've registered and show your share. Also, "very important" for the publishing, your member info (online) should list you as the admin and contact for all publishing info. 

I don't know how long new stuff takes to get set up, but it's vital to keep tabs online. Phone support will often tell you to submit an "inquiry" and wait for a reply. The system generally works, but you need to keep tabs on it. PM me if you have more technical questions about it. : >


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## NYC Composer (Jan 17, 2013)

Go on ASCAPs website and check out digital watermarking. I'm BMI, but a friend who works in radio and is ASCAP was told to encode all his stuff in a particular way. I don't know if it applies to film, but just FYI. Congrats and good luck.


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