By Chris Cooke, | There has been lots of chatter in recent weeks about the way songwriters and composers get paid when their work is used in TV programmes, prompted – in the main – by moves at the Discovery Network to change the way it licenses music for its US telly channels. Netflix’s deals with music-makers have also been debated, while yesterday songwriter groups in Europe hit out at the innovative production music company Epidemic Sound.
When TV producers, film studios, gaming companies and advertising agencies want to use music in their productions they basically have three choices: license commercially released music (ie sync deals), commission some original music or utilise a production music library.
It’s the latter two options that are part on the current debate. The question is, when a producer commissions some original music for a specific project – or a production music library commissions music to subsequently license to third-party producers – who owns the copyright in that music? Plus, when and how does the songwriter get paid?
With music rights, of course, nothing is simple. First of all, if a writer/musician both writes and records a piece of music for the producer or library, there are both recording rights and song rights being created, which copyright law treats separately.
Then, on the songs side, the music industry
Then, on the songs side, the music industry has traditionally distinguished between the ‘mechanical rights’ and the ‘performing rights’. From an audio-visual perspective, the former is exploited when music is synchronised into the video, and the latter every single time the resulting product is broadcast, screened or streamed.
Now, the writer/musician could seek to retain all elements of all the copyrights they are creating and then license them to the producer or library. That licence would allow the producer or library to use the music in certain ways for a certain fee, but the musician would also be free to monetise their music in other ways with other parties.
However, because the aim of the production music business is to simplify licensing for the producer, libraries usually seek to own as many elements of the copyrights in the music they commission or buy as possible. As for original commissions by TV, film, gaming and advertising firms, there has long been a trend for those companies to also try to negotiate rights ownership from the music-makers they work with.
However, when libraries and producers seek to take ownership of the rights in the music they commission – what the songwriting community tends to refer to as ‘buy outs’ – there is usually a limitation. That being that the library or producer gets the recording rights and the mechanical rights of the song, but the performing rights of the song are not part of the deal.
This means the songwriter or composer receives an upfront fee for composing the music (and possibly recording it to, if they are involved in that), but will also receive additional royalties every time the finished product is broadcast, screened or streamed. That performing rights money will be collected through the collective licensing system.
It’s the latter payments that Discovery Networks – which operates the Discovery Channel, Animal Planet, HGTV and Food Network – is seeking to remove by changing the deals it does with the songwriters and composers that it works with.
Variety reported last week: “Discovery has informed many of its top composers that, beginning in 2020, they must give up all performance royalties paid for US airings, and that they must sign away their ability to collect royalties on all past shows on its networks”.
Amid widespread criticism of that move in the songwriter community, the Discovery Network sought to defend itself, albeit in somewhat vague terms, by telling reporters: “Our 8000 hours of original programming a year drives enormous economic value to the global music community. We compensate countless composers and musicians for their valued contributions, and will continue to do so”.
The news of Discovery Networks seeking to change its music-maker deals followed another report in Billboard that Netflix now has a template agreement for songwriters and composers that also ensures no future royalties will be due beyond the upfront buy-out fee. Although Netflix insists that its songwriter agreements are negotiable, and signing up to a full buy-out arrangement is not mandatory if a music-maker wants to work with the company.
Technically, outside the US, most songwriters and composers would not be able to sign a deal that assigned the performing rights in their work to the library or producer, and/or which excluded the future payment of performing right royalties.
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