# Work for hires and writer's share?



## bwmusic (Apr 11, 2015)

I read somewhere that even if a composer is recruited under a work for hire agreement they still get to keep their writer's share.

Is this true and how common is it in practice in the film and game industries?


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## windshore (Apr 11, 2015)

"Work for Hire" - at least in the States can mean just about anything. In the advertising business it means they buy out all rights to the music... so upfront money has to be significant. On the other hand, I've had contracts that use the same term yet they just take the publishing share and I own all writer's share.


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## rgames (Apr 11, 2015)

Yes - I think it can mean just about anything but the WFH contracts I've done have all given me the writer's share of the royalties as part of the contract.

Technically there's not requirement to do that but I think most often it's written that way in the contract.

rgames


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## JohnG (Apr 11, 2015)

Work for hire means they own everything and are the authors, which includes the writer's share. 

Only if the contract says something else to grant the writer's share back to you will you actually be entitled to that writer's share.


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## José Herring (Apr 11, 2015)

Just to add to the already fine comments.

Unless it is a great job with big upfront, I would never do a work for hire these days. Do a licensing deal instead and keep all the rights. If they say no, then there's no need to give it away.


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## Daryl (Apr 11, 2015)

It depends on where you live. In the UK it wouldn't matter what the contract said, if you were a PRS member, because by doing so you automatically assign all your rights to PRS, and any company that effectively wanted a buyout would have to negotiate with PRS, not with you.

D


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## pkm (Apr 11, 2015)

The "standard" WFH in the US lets you keep your writers. I have never done or seen a WFH where that wasn't the case. I believe it is technically against the rules of most PROs to assign writers share to a person who did not actually write the music, although as we all know, it happens all the time.

From the SCL:



> ASCAP’s statement reads, in part: “even in work-for-hire situations, the writer and not the employer will be paid the writer’s share of ASCAP performing royalties.” BMI’s statement reads, in part: “in no case will the writer’s share of royalties be paid to the employer.” SESAC’s statement reads, in part: “ SESAC does not condone coercion of composers to give up any portion of his or her writer’s share of performance income to any third party.”



Directly from ASCAP:



> At ASCAP, We Always Pay Our Writer Members Directly
> As a condition of membership, all ASCAP members agree that the writer - and not the writer's employer - will be paid the writer's share of ASCAP performing rights royalties, even in work-for-hire situations. ASCAP's Articles of Association provide that writer royalties "shall not be sold or otherwise disposed of." Therefore, with very few exceptions, ASCAP will not honor an irrevocable assignment of writer's royalties. We strongly believe that music creators should benefit from their work. Period.


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## José Herring (Apr 11, 2015)

There are people out there that will make the composer sign away writers share and claim it for themselves....beware nothing is sacred when it comes to money.


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## Daryl (Apr 12, 2015)

josejherring @ Sun Apr 12 said:


> There are people out there that will make the composer sign away writers share and claim it for themselves....beware nothing is sacred when it comes to money.


That's where the PRS agreement is better than the one ASCAP uses. Unless someone else fraudulently signs that they were the composer (hello all you composers who use ghost writers) no company can stop you keeping the Writers' share. And yes, I agree that they would if they could.

D


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## bwmusic (Apr 12, 2015)

pkm @ Sat Apr 11 said:


> The "standard" WFH in the US lets you keep your writers. I have never done or seen a WFH where that wasn't the case.



Does this mean if someone is not affiliated with a PRO, then have no say regarding keeping the writer's share in an exclusive buyout deal?




pkm @ Sat Apr 11 said:


> I believe it is technically against the rules of most PROs to assign writers share to a person who did not actually write the music, although as we all know, it happens all the time.



Then whats actually the point of ASCAP, BMI or PRS stating that a composer cannot give away all rights to their employer under Work for hire if the rules are frequently broken...?


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## JohnG (Apr 12, 2015)

There are plenty of instances in which composers surrender all their rights, at least in the USA. I don't think it's technically legal here either but that's how it is. I have never done that but it happens.

That said, in most work for hire situations I've seen, the Producer (buyer of one's music / production company) undertakes:

1. To put composer down on cue sheets for PRS,

2. To negotiate in good faith some fee to composer for licenses and any soundtrack releases (or agreement specifies up front composer's share),

3. To give composer credit in advertising and credit in film / game credits of equal size to writer of screenplay (TV varies), and

4. Pay composer fee, either a package or a separate amount for the creation of the music.

In exchange for that, plus some money, the composer has to:

a. Surrender all copyright, the publishing rights and other rights -- such as ownership of the masters (and often, it's specified, "moral rights") to his or her work. This is often drafted in a 'belt and braces' way, so that even if the 'work for hire' paragraph is overturned or made invalid, other paragraphs that essentially accomplish the same thing would be invoked,

b. Represent that his work is original and doesn't infringe on others' compositions,

c. Provide the music specified in the agreement and 

d. Other stuff.

Work for hire isn't the end of the world. I've made tons more money off compositions done as work for hire than (most) of the situations in which I kept the rights.

What's frustrating is situations in which the producer insists on owning the music even though he / it doesn't have any intention, means, or track record in exploiting it.

I probably left some things out but someone else can correct me.


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## JohnG (Apr 12, 2015)

Daryl @ 12th April 2015 said:


> Unless someone else fraudulently signs that they were the composer (hello all you composers who use ghost writers) no company can stop you keeping the Writers' share. And yes, I agree that they would if they could.
> 
> D



Apropos ghost writers, there was a high profile suit over music for Xena, Warrior Princess (I believe over 100 episodes, so a ton of music). Here's one article about it:

http://www.filmmusicmag.com/?p=278

Reads, in part:

"The case involves the highly controversial practice of film and television composers hiring “ghostwriters” – lesser known composers who are paid to secretly write music for film and television projects but who are denied authorship of the music while another composer, usually the “name” composer who is officially hired to score the projects, takes credit for authorship of the music on official production company documents including royalty cue sheets which direct the distribution of hundreds of millions of dollars of music performing rights royalties collected and paid by royalty organizations ASCAP, BMI and SESAC."

"....Film Music Network founder Mark Northam noted that “If Kolton’s allegations are true, this case highlights one of the most exploitative practices our industry faces today: composers using and abusing lesser known composers while keeping it a dirty little secret from the studios. The name composers get all the credit and most of the money, but only because they and the performing rights organizations are willing to look the other way while uncredited and underpaid ghostwriters secretly do much of the work and are duped into giving up a lifetime of royalties for a few bucks. As a leading industry organization representing composers, we’ve taken a very strong stand against this kind of abuse, and I hope other organizations will follow.”


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## Daryl (Apr 12, 2015)

John, my objection (other than the legality) to ghost writers is not just that people give up their Royalties. This happens all the time in other industries, when one is paid to invent/discover something, but we are in an almost unique situation, and every time a composer uses a ghost they are basically telling the industry that it is OK to give up your Royalties in return for up-front money.

Of course the next step is for the named composer to give up all Writers' Royalties as well, because they have already been paid to write the score. A slippery slope, and organisations like ASCAP (who actually have board members condoning this kind of theft) don't help.

D


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## germancomponist (Apr 12, 2015)

> The name composers get ... most of the money...



Not always! 

And sometimes there are scpecial reasons for a composer to work as a ghost.


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## RiffWraith (Apr 12, 2015)

Hey Daryl - I do nat disagree with your standpoint at all. But unfortunately, there is no way (that I see anyway) to stop - or remedy - the situation. But wanted to ask you...

Say a 'name composer' is hired on a film, and then turns around and hires a ghost, who gets upfront money and no royalies (performance and mechanical). But let's say that the 'name composer' properly compensates the ghost. I am just tossing #s around obviously, but, here goes...

The composer's compensation is $250,000 to write and prep the entire score, and as well, he keeps 100% of the writer's share. So, the composer is basically getting paid $2,500 per minute of music written. Forget about whether or not that's how they came up with the fee, but that's the breakdown. He is also making money off of the perf. royalties... how much is impossible to say, as it all depends on how many times the film airs, network vs. cable, timeslots, etc. But, based on prior experience, he estimates that he can potentially earn another $150,000 in royalties in the coming years.

The film needs 100 min. of music, and the composer needs the ghost he has hired to write 10 min. of music - , ie 10%. So the composer feels he wants to do the right thing, and decides to pay the ghost $40,000 - which is comprised of 25k for the 10 min of music (same rate he himself is getting), and another 15k for royalties (albeit upfront), which is 10% of the royalties he will be getting. 

In this scenario, would you be ok with this?


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## Daryl (Apr 12, 2015)

Riff, short answer is "no" because the named composer is committing fraud.

Longer answer is "why is the composer hiring a ghost."? Either he/she can do the job, or not. If not, stop being greedy and taking work away from other people. If he/she can do the job, just do the job, stop being lazy and stop taking credit for other peoples work.

D


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## germancomponist (Apr 12, 2015)

How can you say that a ghost only gets upfront money and no royalies?

Especially I know that this is not always true!

o/~


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## pkm (Apr 12, 2015)

Daryl @ Sun Apr 12 said:


> Riff, short answer is "no" because the named composer is committing fraud.
> 
> Longer answer is "why is the composer hiring a ghost."? Either he/she can do the job, or not. If not, stop being greedy and taking work away from other people. If he/she can do the job, just do the job, stop being lazy and stop taking credit for other peoples work.
> 
> D



One might argue that he/she is providing work to someone who would otherwise not have the chance to write music on such a film rather than taking it away from someone else. Though I agree that they should be properly credited and compensated (additional music and cue sheet)



germancomponist @ Sun Apr 12 said:


> How can you say that a ghost only gets upfront money and no royalies?
> 
> Especially I know that this is not always true!
> 
> o/~



I would think a "ghost" would get its name by not getting cue sheet credit, otherwise they would be considered an "additional composer".

Although I have heard stories about "backdoor royalties" paid out by the composer to the ghost from his/her royalty pool.


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## germancomponist (Apr 12, 2015)

pkm @ Sun Apr 12 said:


> Although I have heard stories about "backdoor royalties" paid out by the composer to the ghost from his royalty pool.



This! No question among friends!


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## pkm (Apr 12, 2015)

The big problem I have with that is that most of these I've heard of are done without contracts, so the composer has no obligation to keep paying those royalties and can stop for any reason. It's just way too unregulated. The only thing keeping them paying is ethics, which some composers have shown not to care too much about.


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## germancomponist (Apr 12, 2015)

pkm @ Sun Apr 12 said:


> The big problem I have with that is that most of these I've heard of are done without contracts, so the composer has no obligation to keep paying those royalties and can stop for any reason. It's just way too unregulated. The only thing keeping them paying is ethics, which some composers have shown not to care too much about.



I never would work together with such people!


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## rgames (Apr 12, 2015)

Whenever the WFH discussion comes up I feel compelled to remind folks that WFH is the standard in nearly every industry EXCEPT the music composition business. And even within the world of music composition my strong suspicion is that nearly everyone at the top is signing WFH contracts where the writer's share is assigned back to the composer.

There's notjing fundamentally wrong with WFH agreements. They can be very lucrative. And they can be used to exploit composers (though I've never seen it happen).

WFH is a business decision. It is not an ethical decision. And you certainly don't need a PRO watching out for you because the PRO has no idea what value the work provides to your individual situation. If I got a very lucrative deal where the client wanted all rights and I couldn't transfer them, I'd be be pretty upset.

You don't need protection - if it's worth your while, do it. If not, don't.

It's up to you to decide what's worth your while as a professional composer. That's the essence of being a professional in any field.

rgames


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## José Herring (Apr 13, 2015)

Nobody is saying there is something wrong with WFH. What I am saying is it makes no sense to get paid peanuts for WFH. Nobody should be that desperate.

I've done plenty of low budget film jobs and aside from my first one, I've always insisted on keeping all the rights to the music. It's not even a question in my mind if the job is below a certain threshold.

Budgets for indie films are so ridiculous these days that I would never do any indie film unless I kept the rights. Then you can make a killing if it goes to TV or foreign TV. 

So it's kind of a moot point. Obviously the OP isn't doing studio films, so he's probably on the inide side asking about WFH. Set your limit but given the reality of indie work these days, don't do WFH unless you like pain. I should think it applies to indie games as well.


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## Ned Bouhalassa (Apr 13, 2015)

RiffWraith @ 12/4/2015 said:


> So the composer feels he wants to do the right thing, and decides to pay the ghost $40,000 - which is comprised of 25k for the 10 min of music (same rate he himself is getting), and another 15k for royalties (albeit upfront), which is 10% of the royalties he will be getting.
> 
> In this scenario, would you be ok with this?



40 grand for 10 min? I have to get in on this ghosting action...


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