Music Library Models
There are any number of business models used by various music libraries, all of which have pros and cons in how they work, how much they support your catalog, and how involved they are in the actual licensing process. Following is an overview of music libraries, how they work, and a few caveats about your intellectual property...
There’s a difference between libraries of music and 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, songwriter and/or artist, 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 off the composition and/or the recording of it or do anything they want with it without any additional payment to you. The only revenue you see after the initial payment from them is via checks/statements that come directly from your PRO (in the U.S., 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 yearly fee for membership” deal:
Not really a music library, but it sort of acts like one in one aspect of what a library provides (except here it’s for a prepaid fee, regardless of whether or not your music gets licensed): 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 (usually $5-$10 for each composition/track submitted) to have your music heard internally. If the listener at their end deems it appropriate to send along to the supervisor (or whoever), they do. Whether or not your music is forwarded, you’ve paid up front to get your music heard, and not necessarily by the powers-that-be who can actually license your music. If your music does get forwarded, and the supervisor thinks yours is the right piece for the scene, he or she contacts 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 (4a) 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 “set up your own shop using the tools we provide and we take nothing but a small monthly fee” scenario:
So far, not a usual set-up, and not really a library, but a model which bears consideration. Using the tools they have created at their site, this model allows you to retain control of how you and your music are presented and marketed. You can link sound files from your own website or other third-party server—or park them at theirs—with tracks going into a communal, searchable database with all the other independent composers, publishers and artists at the site, yet you have a unique shop that’s all your own. Basically, you’re creating your own store in a shopping mall—but even though customers can come directly into your store to shop, they can also go to a central information booth to find out if you have what they want/need before they arrive. You are in control of all branding, negotiating, licensing, etc., but are given sample licenses to use, and tips to help you in the process. In essence, you’re being educated and assisted, even though the site and its owners are not doing the negotiating and licensing for you. Payment levels are based on the number of tracks you upload and in what format, and you can start with a free test run for up to 15 tracks that remains free until you’ve licensed three tracks. Subscriptions go from around $50/year for 16 to 1,000 tracks, and there are custom plans for those with 1,000+ tracks in their catalog. It can be a good option for those who wish to be in more control of the business aspect of their career and plan to cultivate numerous, personal relationships with music supervisors, directors, etc.—as opposed to those who would rather plunk their music somewhere and have a library do the grunt work for them.
(6) 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 for the composition/song). The arrangement is usually a 50/50 split of all up-front license fees generated via/at the website. 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 (though they may have additional features available at a nominal monthly fee). With the old-fashioned, “send CDs of all our stuff to everyone”, licensed uses were 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 initially know WHO is listening and/or licensing, you certainly know that they’re doing so. The supervisor is actually coming to you (via the site) instead of you having to beat down their doors to get a listen. 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. And this kind of portal reaches supervisors and directors from around the world.
(7) 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. This is not new—the model has been in use by some traditional music libraries for decades. These are NOT “derivative” copyrights, since we’re talking about the SAME composition and usually the SAME recording; derivative copyrights require that substantial changes be made to the original work, and simply re-titling the work doesn’t change a thing. 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.
So now on to the editorial section about libraries and their practices:
RE-TITLING: Here’s the problem I see with this business model: First off, in some countries it is illegal to do so under certain circumstances (in at least one major market country, for instance, re-titling any work which has received radio airplay can get you into serious trouble). In pretty much every country with copyright laws, a composition receives ONE copyright, and the copyright is issued to the musical work itself (not necessarily the title, which in most countries is not copyrightable for musical works). A bundle of rights comes with that copyright, and in the U.S. it is upon creation of the work in tangible form, whether or not the composer has officially registered the work with the Copyright Office (which SHOULD be done, even if it’s within a ‘collection’ of works whose titles are listed within the copyright documentation). By giving away pieces of the publishing rights to different libraries, a composer could be giving away the copyright itself—even if the library doesn’t re-register the work with the U.S. Copyright Office (which they do NOT do, because they know by doing so it could be officially considered fraud, since previous registration numbers must be included in any amended registration, and in re-registering the work, they’d officially be acquiring a portion or all of the publishing rights to the actual copyright).
How So?
The copyright is on the WORK, not the title. The composer could actually be setting themselves up to having the copyright to the WORK eventually usurped. The general library watchcry is that it’s not hurting anyone, but if you think about the big picture and the inherent dangers of the practice, it actually can be harmful to everyone. Networks, cable companies, restaurants, concert arenas, etc., pay yearly license fees to the PROs for the privilege of using music from the composers and publishers of works registered with the PROs. The re-titled works inflate the size of the respective catalogs, since the PROs go by titles registered with them, not copyrights issued for the respective works. Blanket license fees are based on a number of criteria, including catalog size (and this goes for PROs and libraries). With inflated catalogs comes inflated fees, since catalog size IS part of the formula.
Frankly, anything that is ethically clouded or could put me into a shaky legal standpoint with respect to the ownership of my work or its use is not something I want. As a supervisor, I’m not inclined to want such works either, since I actually care about composers and artists, being one myself, and want to see them getting a cut of the up-front license fees, which most will not if they’ve put their music in most traditional libraries.
From a supervisor’s standpoint, I need to be able to find lots of music—whether it’s the latest angsty chick singer or a bombastic “Carmina Burana” knock-off; original indie music in the style of the 1920s or a rock icon; country to big band—basically anything and everything, depending on the project. I don’t want to wait weeks for an answer; I want ease in dealing with paperwork and simplicity in finding what I need. Ideally, I’d like to get it from one place—or from as few places as possible. The less I have to do in the actual music search is ideal, since I may have a committee of folks to please [producer(s), director, supervisor, some exec I never will meet, etc.]. I don’t want the thousands of CDs already in my office, so online for me is good.
As an artist, I want to maintain my publishing rights, share in the licensing fees and not have to pay up-front to have my music heard. I don’t want to re-title a song because I’m opposed to the practice described in section (7). I do, however, want my music to be heard and licensed, and have no problem with sharing the licensing pie with whoever is making my music available to potential licensees—especially if they’re handling all the paperwork with the studios, production companies, etc. The company that does what’s described in section (6) for me definitely earns their 50% in upfront licensing fees.
In general, I don’t feel artists should have to pay anyone up-front just to have their music heard by a supervisor. It’s why I am opposed to the (4a) model. Your music may go no further than the in-house listener because they’ve decided it’s not good enough or appropriate for the pitch—when, in fact, it may be perfect (A real example: A song one such service deemed “not film friendly” has now been licensed in TEN movies).
Instead of getting your music directly to the supervisor (or the music coordinator or the supervisor’s assistant—which is nearer to the end source and a step closer to being heard and licensed), your music is in the hands of folks who don’t make the final decisions, and it may be a total crapshoot as to the abilities of the listener on whose desk your music arrives. Now, while these listeners may have decent track records in the industry, they may not have many current credits to their names. Frankly, a lot of “Don’t you know who I used to be?” people end up on these listening panels, and many are clueless as to the current trends and changing markets.
Instead, get a copy of Ritch Esra’s “Film & Television Music Guide” and develop relationships with various supervisors. Do your homework and find out what the supervisors have worked on/are working on so you get a feel for the type of music their projects need. Call the supervisor’s office FIRST and ask if you can submit music—and let them know you’re happy to simply send a link to specific tracks. Despite what some supervisors might say, we’re ALWAYS looking for good music—we may not necessarily need what you have right now, but if we hear something that hits us, we’ll file that music aside for when we do (which for me was 2½ years in one instance!). Ask if they have any specific current needs that aren’t being met. Expect resistance if you ask to send a CD—offer to email a direct link to the music you want to present to them. If you get the okay to send a CD, direct it to the person with whom you spoke (or whoever they said should get it) and put “requested material” in big letters on the envelope.
There’s no way you can reach every supervisor—virtually all supervisor lists available in the U.S. include only U.S. supervisors. There are a whole lotta countries with a whole lotta supervisors working on a whole lotta movies. You need to reach beyond borders and seek other placement avenues. The Internet is both a blessing and a curse for this.
Be careful who you choose to handle your music. Find out if they have international reach. Ask the hard questions. Have your attorney review the agreement they want you to sign in order to place your music. Most of all, find out what they want from YOU to get your music heard. If it’s nothing up-front, a split of the license fees and no re-titling or taking any part of your back-end, non-exclusive with no long-term commitments, then go for it. If they want to take any part of your back-end publishing rights, if they want exclusivity to a ‘re-titled’ work, if they want more than 50% of the master use/sync license fees, if they if they don’t handle the paperwork or give you tools to do so, but want you to pay up-front for the privilege of uploading your music to their website—if they want to buy out your works, if they want a supposedly non-exclusive set-up, yet put restrictions on your ability to have your works repped by others as well, then that’s the time to run away. Your music and how you market it is in your hands.
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. (Gael MacGregor is a Los Angeles-based music supervisor, musician, songwriter, author, and advocate for strong intellectual property rights for all content creators)
© 2009-2019 · Gael MacGregor, Independent Music Supervisor
MacMusic Magic · www.macmusicmagic.com · www.imdb.com/name/nm0532320