Film Composer Agreement
Re: “[Insert Film Title here]”
The following shall constitute the agreement (“Agreement”) between _________________ LLC. (ASCAP)(“Producer”) and _____________________ (“you”) with respect to your services in connection with the motion picture production tentatively entitled “[Insert Film Title here]” (the “Production”).
a) You shall compose, arrange, orchestrate, produce, sweeten, adapt, conduct and record such original music as may be required by Producer sufficient to constitute the score (the “Score”) for possible inclusion in the Production. You shall perform all services hereunder as are usually rendered by composers of original music for motion pictures at such times and places as Producer shall designate, in compliance with all instructions and requests issued by Producer and in accordance with the following schedule:
(1) You shall commence to render your services immediately, at which time you shall participate in any pre-production, development, thematic, and creative meetings that Producer may require.
(2) You shall deliver the following to Producer:
a. Original lead sheets of the Score (“Lead Sheets”). As used herein, Lead Sheets are defined as sheet music with lyrics, melody and harmony of any vocal within the Production from which all original recorded vocals and choruses can be reproduced in detail for future recordings of performances. The minimum requirements for a Lead Sheet must include all musical notes, lyrics and music notations necessary to re-record the vocal; chorus parts/harmonies; the date each Lead Sheet is created; title of the vocal; and series title.
b. Detailed and accurate cue sheet information.
c. Two copies of the recorded Score in whatever format Producer shall reasonably designate (the “Masters”) together with a protection copy (i.e., a duplicate copy of the Masters in CD format) and all original multitrack tapes, including, but not limited to, any outtakes, incomplete Masters and Demos. If the Demos are not satisfactory to Producer, you shall re-compose the Score and/or re-record the Masters until such time as Masters satisfactory to Producer are delivered to Producer. You shall complete the recording of the Score and the mixing and dubbing thereof at such times and in such a manner so that you will deliver the recorded Score to Producer on or before dates which have been or shall be designated by Producer.
b) You acknowledge and agree that Producer shall have the right to revise any schedule or delivery date upon notice to you.
c) Time is of the essence in the performance of this Agreement.
a) In full consideration of your complete and timely performance of your obligations hereunder, and the rights herein granted, and provided you are not in breach of this Agreement, Producer shall pay as compensation to you the “all-in” sum of Five Thousand, Dollars ($5,000.00), payable as follows:
(1) Two Thousand Dollars ($2,000.00), on ________, 2010, receipt of which you hereby acknowledge; and
(2) Three Thousand Dollars ($3,000.00) payable upon successful liquidation of applicable Illinois Tax Credits.
b) The sums payable pursuant to paragraphs 2. a)(1) and 2. a)(2) above are deemed inclusive of all amounts required to be paid pursuant to any applicable collective bargaining agreement to which Producer is a signatory based upon your services hereunder, including, but not limited to, minimum scale wages for work performed in any category under any American Federation of Musicians (“AFofM”) agreement and fringe benefits. If you become entitled, pursuant to any AFofM agreement, to receive compensation in addition to that set forth in paragraph 2. a) above for any use of the results and proceeds of your services hereunder, then such compensation will be payable at the minimum scale rates provided for in the applicable AFofM agreement.
c) The compensation described above is deemed inclusive of all compensation to which you may be entitled by reason of your rendering services hereunder, or by reason of the exploitation of the Score and Masters as herein provided, except that to the extent the Score is original with you, you shall also receive songwriter royalties in accordance with the provisions of Exhibit “A” attached hereto and incorporated herein by this reference.
4. Ownership and Rights.
a) The Score and the Masters including without limitation, the title, any words, music, arrangements, adaptations or other versions thereof written or recorded under this Agreement shall be deemed the results and proceeds of your services hereunder in connection with the Production (hereafter the “Results and Proceeds”) which you acknowledge (i) were or will be rendered in collaboration with others, (ii) shall be deemed a work-made-for-hire specifically ordered by Producer, (iii) have been paid for by Producer and (iv) are the sole property of Producer for any and all purposes whatsoever. Notwithstanding the preceding sentence, you hereby assign and/or grant, in consideration for the compensation provided hereunder, all rights including all exclusive exploitation rights, of every kind and nature (including any and all copyrights [and extensions and renewals thereof] and neighboring rights, to the extent such assignment is allowed by law) in and to such Results and Proceeds to Producer, subject to the terms and conditions of this Agreement. All rights (including the worldwide copyright) to such Results and Proceeds are owned by Producer solely and exclusively, for the duration of the rights in each country, in all languages, and throughout the universe (the “Territory”). You and Producer are aware and hereby acknowledge that new rights to the Results and Proceeds may come into being and/or be recognized in the future, under the law and/or in equity (hereafter the “New Exploitation Rights”), and you intend to and do hereby grant and convey to Producer any and all such New Exploitation Rights to the Results and Proceeds commissioned hereunder from you. You and Producer are also aware and do hereby acknowledge that new (or changed) (1) technology, (2) uses, (3) media, (4) formats, (5) modes of transmission, and (6) methods of distribution, dissemination, exhibition or performance (hereafter the “New Exploitation Methods”) are being and will inevitably continue to be developed in the future, which would offer new opportunities for exploiting the Results and Proceeds. You intend and do hereby grant and convey to Producer any and all rights to such New Exploitation Methods with respect to the Results and Proceeds. You hereby agree to execute any document Producer deems in its interest to confirm the existence of the preceding and to effectuate its purpose to convey such rights to Producer, including without limitation the New Exploitation Rights and any and all rights to the New Exploitation Methods. You further hereby agree that you will not seek (A) to challenge, through the courts, administrative governmental bodies, private organizations, or in any other manner the rights of Producer to exploit the Results and Proceeds by any means whatsoever or (B) to thwart, hinder or subvert the intent of the preceding grants and conveyances to Producer and/or the collection by Producer of any proceeds relating to the rights conveyed hereunder.
b) Without limiting the generality of the foregoing, you acknowledge that Producer shall have the right, without additional payment, to synchronize and use the Score and/or the Masters in the soundtrack of the Production in whole or in part, in any sequels, prequels and remakes thereof, in any other theatrical or television productions based on the Production or its characters, title or story, in uses ancillary to the Production, including, without limitation, in toys, merchandising and games, studio tours, and in trailers, promotional films and advertisements for any or all of the foregoing, and in connection therewith the parties acknowledge and agree that Producer shall have the perpetual right throughout the Territory to exploit the Score and the Masters in all media whether now known or hereafter developed, including, but not limited to, theatrical release, subscription, satellite, pay/cable and free TV, video-on-demand, audiovisual devices (including but not limited to all such devices intended for home use), phonorecords (as such term is defined in the Copyright Act of 1976), trailers, advertisements and publicity therefor, any computer-assisted media (including but not limited to CD-ROM, CD-I and any other storage and/or retrieval systems), interactive cable and in all other uses associated with any New Exploitation Method.
c) Producer may, in its sole discretion, make any changes, adaptations, dramatizations, translations, edits and arrangements of the Score (and secure all copyrights and any extensions of copyrights in such versions throughout the Territory) including, but not limited to, substitute a new title or titles for the Score, and add English and/or foreign lyrics to the music of the Score or new music to the lyrics of the Score. You hereby waive any so-called “moral rights” of authors which are now or may hereafter be recognized by custom, usage or law.
5. Recording Costs. The Score and Masters as delivered to Producer shall be recorded and produced as motion picture soundtrack recordings in accordance with the rules and regulations of all unions and guilds having jurisdiction over such recording and production. You shall be solely responsible for the payment of all recording costs of the Score and the Masters whether or not such costs exceed the amount payable in paragraph 2. If Producer pays any recording costs for which Producer is not obligated or has not given written approval, you, upon Producer’s request, shall promptly reimburse Producer for all such payments, and if you shall fail to do so, Producer shall, in addition to all of Producer’s other rights and remedies, have the right to deduct any such payments from any monies payable to you pursuant to this Agreement. Promptly following the completion of the recording of the Masters, you will provide Producer with copies of all contracts sufficient to verify your compliance with the requirements of this paragraph.
6. Non-Dramatic Performance License. Notwithstanding any provisions to the contrary contained herein or in Exhibit “A”, if at any time any television network, television station or other entity licensed to broadcast the Production (“Television Entity”) does not hold a non-dramatic performing license from ASCAP, BMI or any other applicable performing rights society covering the non-dramatic performance of the Score, or if a Television Entity so requires, or if Producer so desires in any instance (notwithstanding the Television Entity’s holding of applicable licenses), Producer or its music publishing designee shall automatically have the exclusive right to grant to each such Television Entity the non-dramatic performing rights in and to the Score for use in connection with the Production. Producer shall not be liable to you for the payment of any sums with respect to the performance of the Score; provided, however, that if and to the extent that Producer or its music publishing designee receives, in the United States, a distribution of earned public performance fees from any source which does not make a separate distribution, directly or indirectly, to you as the composer of the Score, then you shall be entitled to receive fifty percent (50%) of such fees as the so-called “writer’s share” of such fees, reducible by any other participating composer’s rights to receive a portion of earned public performance fees.
7. Name and Likeness. You hereby grant to Producer the right to issue, and authorize others to issue, publicity concerning you, and the right to use your name (including any professional name or sobriquet adopted by you), likeness and biographical data in connection with the distribution, exhibition, advertising and exploitation of the Production, phonorecords related thereto and all other exploitation described hereunder.
8. Warranties. You warrant and represent that:
a) You are free to enter into this Agreement and to grant all of the rights herein granted;
b) You are not subject to any obligation or disability which will or might prevent or interfere with you fully keeping and performing all of the agreements, covenants and conditions to be kept or performed hereunder;
c) You have not made nor will you make any agreement, commitment, grant or assignment, or do, or omit to do any act or thing which will or might interfere with or impair the complete enjoyment of the rights granted and the services to be rendered to Producer hereunder;
d) You are a member of the performing rights society indicated on the signature page of this Agreement;
e) All material submitted by you hereunder shall be wholly original with you and shall not infringe upon or violate any right of privacy of, or constitute a libel, slander or unfair competition against, or infringe upon or violate any copyright, trademark, common law, or other rights of any person or entity;
f) You shall obtain any and all rights from all persons whose performances are embodied in the Score and Masters, and all other persons whose rights are involved in connection with Producer’s exploitation of the Production and/or Masters; and
g) You shall not re-record, conduct or produce recordings of the Score or Masters for any party other than Producer for a period of five (5) years after the date of delivery and acceptance of the Masters by Producer.
9. Indemnity. You hereby agree to defend and indemnify Producer, its directors, officers, shareholders, employees, attorneys, representatives, and the respective successors, assigns and licensees of each of the foregoing, from and against any and all claims, demands, causes of action, costs, liabilities, losses, damages and expenses, including attorneys’ fees and court costs (collectively “Claim(s)”), based on, arising out of or connected with any breach or alleged breach of any representation, warranty, obligation or agreement made by you in this Agreement. During the pendency of any such Claim, Producer shall have the right to take such action as it deems necessary in order to protect its interests, including, but not limited to, hiring, or causing the hiring of counsel of its choice at your sole cost, controlling any suit, action or proceeding, including any settlement thereof, and withholding such monies payable to you hereunder as Producer shall deem sufficient to reimburse Producer for any contemplated damages or expenses, including attorneys’ fees and court costs.
10. Utilization of Score and Masters. Nothing contained in this Agreement shall be deemed or construed to obligate Producer to use the Score or the Masters in the Production, to release the Production or to otherwise exploit the Score or the Masters. Producer shall have the right to use the Score and/or the Masters in whole or in part, either with or without other musical compositions.
11. Injunctive Relief.
a) Your services pursuant to this Agreement are of a special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law. Accordingly, Producer shall be entitled to injunctive and other equitable relief to prevent a breach of this Agreement by you, which relief shall be in addition to any other remedies which may be available to Producer.
b) In the event of a breach or alleged breach by Producer of this Agreement, the damage, if any, caused to you thereby would not be irreparable or otherwise sufficient to enable you to seek or obtain injunctive or other equitable relief and your rights and remedies in any such event shall be strictly limited to the right, if any, to recover damages in an action at law.
12. Union Membership. During the term of this Agreement, for such period or periods as it may be lawful for Producer to require you to do so, you shall remain, or become and remain, at your expense, a member in good standing of any properly designated labor organization or organizations (as defined and determined under the then applicable law) representing persons performing services of the type and character that are required to be performed by you hereunder.
13. Enforcement of Rights. Producer may take such action as it deems necessary, in your name, against any person or entity to protect the rights and interests acquired by Producer hereunder. You will, at Producer’s request, cooperate fully with Producer in any controversy which may arise, or litigation which may be brought, concerning Producer’s rights and interests acquired hereunder, and you shall have the right to participate therein with counsel of your choice, at your sole cost and expense. Producer shall have the right, in its absolute discretion, (a) to employ attorneys; (b) to institute or defend any action or proceeding, (c) to take any other proper steps to protect the right, title and interest of Producer in and to the Score and the Masters, and every portion thereof; (d) to settle, compromise or in any other manner dispose of any matter, claim, action or proceeding; and (e) to satisfy any judgment that may be rendered, in such manner as Producer in its sole discretion may determine. Any legal action brought by Producer against any alleged infringer of the Score or the Masters shall be initiated and prosecuted by Producer.
14. Further Instruments. You hereby agree to execute and deliver, or cause to be executed and delivered, to Producer any and all documents and instruments as Producer may from time to time require and to take such action as is from time to time requested by Producer for the purpose of confirming or further assuring Producer’s ownership of the rights granted or intended to be granted hereunder. If you shall fail to do any of the foregoing, you hereby irrevocably authorize, empower and appoint Producer, or any of its officers, your true and lawful attorney-in-fact, in your name, place and stead, to take such action, and to make, execute, acknowledge and deliver any and all of the foregoing documents and instruments. The foregoing power of attorney shall be deemed coupled with an interest and is irrevocable.
15. Payments. All payments due hereunder shall be made to you at the address first above-written, unless and until written notice to the contrary is received by Producer via registered mail.
16. Notices. All notices, statements and payments which either party hereto is required or desires to give to the other party shall be in writing and shall be delivered personally or transmitted by fax, or mailed, postage prepaid, and sent to the following addresses, or to such other address as either party shall designate in writing to the other party from time to time:
You: At the address set forth on page 1
Unless otherwise specified herein, the date of personal delivery or transmittal by fax shall be deemed the date of service; if any notice is delivered by mail, any such notice shall be deemed served on the date of deposit thereof.
17. Assignment. Producer may assign this Agreement or any of its rights hereunder to any parent, subsidiary or affiliated entity or to any third party without your consent, and in such event, Producer’s successors and/or assigns shall be entitled to all rights granted under and by virtue of this Agreement. You may not assign any right or delegate any obligation hereunder without Producer’s prior written consent. Any purported assignment and/or delegation of any obligation by you without such prior written consent shall be void ab initio and of no effect whatsoever.
18. Promotion. You shall acquire no right under this Agreement to use, and shall not use, the name “Roundabout American” or “Roundabout” (either alone or in conjunction with or as part of any other work or name) or any related, affiliated or subsidiary companies, in any of your advertising, publicity, or promotion, to express or imply any endorsement by Producer of your services or in any other manner whatsoever (whether or not similar to the uses specifically prohibited above).
19. Confidentiality of Material. You may, during the course of your engagement hereunder, have access to, and acquire knowledge of material and other information which may not be accessible or known to the general public. Any knowledge acquired by you from such material or otherwise through your engagement hereunder shall not be used, published, or divulged by you to any other person, firm or corporation in any manner whatsoever without first having obtained the written permission of Producer, which Producer may withhold in its sole discretion.
20. Breach. No failure by Producer to perform any of its obligations under this Agreement shall be deemed a breach hereof unless you shall have given Producer written notice of such failure and Producer shall have failed to cure such non-performance within thirty (30) days after receipt of such notice, if such non-performance is reasonably capable of being cured within such thirty (30) day period. If such non-performance is not reasonably capable of being fully cured within such thirty (30) day period, Producer shall not be in breach if it commences to cure such non-performance within such thirty (30) day period, and proceeds with reasonable diligence to complete the curing thereof.
a) This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof, and cannot be modified or terminated, except by a written instrument signed by both parties hereto.
b) A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof.
c) All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
d) This Agreement, its validity, interpretation and legal effect, shall be governed by the laws of the State of Illinois applicable to contracts entered into and performed entirely within such State. If any action or proceeding is commenced under or in relation to this Agreement, the same shall be commenced in the County of Cook.
e) If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect.
f) Should any of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against any party hereunder, but rather by construing the terms hereof fairly and reasonably in accordance with the generally accepted meaning of such terms.
g) It is a condition precedent to the effectiveness of this Agreement that you prove your identity and employment eligibility as required by the Immigration Reform and Control Act of 1986, and you hereby agree to complete, execute and deliver, in person, to Producer an Employment Eligibility Verification (“Form I-9”), together with documentation of your employment eligibility, within three (3) business days of your execution of this Agreement or commencement of services, whichever is earlier. If you fail to verify and deliver the Form I-9 as provided above, Producer shall have the right, exercisable by notice to you, to terminate this Agreement and thereupon your engagement hereunder shall cease and neither party shall have any right, duty or obligation to the other under the Agreement except as such may have accrued prior to the effective date of termination.
h) It is understood and agreed that you are acting as an independent contractor in the performance of services hereunder, and nothing herein contained shall be deemed to create an employment or agency relationship between Producer and you. You shall in no event be entitled to participate in, or to receive any benefits from, any of Producer’s benefit or welfare plans. You shall be solely responsible for the payment of all Federal and state income taxes, social security taxes, Federal and state unemployment insurance and similar taxes and all other assessments, taxes or contributions or sums payable with respect to you and/or your employees and subcontractors as a result of or in connection with your services hereunder and you shall file all returns and reports with respect to any of the foregoing. You will indemnify Producer for and hold it harmless from and against any and all taxes which Producer may have to pay and any and all liabilities (including, but not limited to, judgments, penalties, fines, interest, damages, costs and expenses, including reasonable attorneys fees) which may be obtained against, imposed upon or suffered by Producer or which Producer may incur by reason of its failure to deduct and withhold from the compensation payable under the Agreement any amounts required or permitted to be deducted and withheld from the compensation of an employee under the provisions of the Federal and Illinois Income Tax Acts, the Federal Social Security Act, the Illinois Unemployment Insurance Act and any amendments thereof and any other statutes heretofore or hereafter enacted requiring the withholding of any amount from the compensation of an employee.
Yours very truly,
AGREED AND ACCEPTED:
PERFORMING RIGHTS SOCIETY: __________
(a) Ten cents ($.10) per copy for each piano copy and dance orchestration of the Score printed, published and sold in the United States and Canada by Producer or its licensees, for which payment has been received by Producer, after deduction of reserves and returns.
(b) Fifty percent (50%) of the wholesale selling price upon each printed copy of each other arrangement and edition of the Score printed, published and sold in the United States and Canada by Producer or its licensees, for which payment has been received by Producer, after deduction of reserves and returns, except that if the Score is used in whole or in part in conjunction with one or more other musical compositions in a folio, album or other publication, you shall be entitled to receive that proportion of said royalty which the Score shall bear to the total number of musical compositions contained in such folio, album or other publication.
(c) Fifty percent (50%) of any and all net sums (less any costs for collection) actually received by Producer in the United States from the exploitation in the United States and Canada by licensees of Producer of mechanical rights, electrical transcription and reproducing rights, motion picture and television synchronization rights, and all other rights in the Composition (except print rights which are covered in (a) and (b) above and public performance rights which are covered in (d) below). Producer shall not be obligated to pay any monies to you with respect to any of the forgoing rights if such licensees are affiliated with, owned in whole or in part by, or controlled by ABC
(d) You shall receive public performance royalties throughout the world directly from your affiliated performing rights society and shall have no claim whatsoever against Producer for any royalties received by Producer as a distribution from any performing rights society which makes payment directly (or indirectly other than through Producer or its music publishing designee) to writers, authors and/or composers.
(e) Fifty percent (50%) of any and all net sums, after deduction of foreign taxes, (less any costs for collection) actually received by Producer in the United States from sales, licenses and other uses of the Composition in countries outside of the United States and Canada (other than public performance royalties mentioned in subparagraph (d) above) from collection agents, licensees, subpublishers or others. Producer shall not be obligated to pay any monies to you with respect to any of the forgoing rights if such licensees are affiliated with, owned in whole or in part by, or controlled by Producer.
(f) No royalties or other monies shall be payable hereunder on (1) professional or complimentary printed copies; (2) phonorecords which are distributed free to performing artists, orchestra leaders or disc jockeys or for advertising, promotional, sales or exploitation purposes; (3) any so-called “storyteller” phonorecords; (4) phonorecords embodied in other merchandise; or (5) any advertising, promotional or other incidental use of the Score in connection with the manufacture and sale of such merchandise and/or storyteller phonorecords. Furthermore, no royalties shall be payable hereunder on consigned copies unless paid for, and not until the statement for the accounting period during which such payment was earned is received by Producer.
(g) The royalties herein provided for shall be payable solely to you in instances where you are the sole author of the entire Score, including the words and music thereof. If one or more songwriters are authors together with you in any portion of the Score, including any writer employed by Producer to translate the words or to add to or change the words or to revise or change the music either before or after your delivery to Producer of the Score, all royalties shall be divided equally among you and each and all of such other writers, unless timely written instructions to the contrary are received by Producer from you and all said other writers.
(h) Except as herein expressly provided, no other royalties or monies shall be payable to you with respect to the Score. In no event shall you be entitled to share in any advance payments, guarantee payments or minimum royalty payments which Producer may receive in connection with any sub-publishing agreement, collection agreement, licensing agreement or other agreement in connection with the Score, or any portion thereof.
(i) You shall not be entitled to any publication or other royalties in respect of musical material which is owned, controlled or furnished by Producer, or which is in the public domain, and which you may use or adapt in connection with the Score.
(j) “Net Sums,” for the purposes of this Agreement, shall mean all monies actually received by Producer in the United States or credited to Producer’s account in United States currency which are directly attributable to the uses enumerated above (except public performance royalties) after deduction of all costs, expenses, fees and commissions which are attributable to the exploitation of the Score, including but not limited to, costs of collection and foreign taxes.
(k) Producer will prepare and furnish semiannual statements to you within ninety (90) days after each semiannual calendar period, and each such statement shall be accompanied by payment of any and all sums shown to be due thereby. Producer shall have the right to retain a reasonable reserve against returns provided each such reserve shall be liquidated in equal amounts in accordance with Producer’s then-current standard practice following the period in which such reserve was initially established. At any time within one year after any statement is rendered to you hereunder, you shall have the right to give Producer written notice of objection to such statement and of your intention to examine Producer’s books and records with respect to such statement. Such examination shall be commenced within three (3) months after the date of such notice, at your sole cost and expense, by any certified public accountant designated by you, provided such accountant is not then engaged in an outstanding examination of Producer’s books and records on behalf of a person or entity other than you. Such examination shall be made during Producer’s usual business hours at the place where Producer maintains the books and records which relate to you, and which are necessary to verify the accuracy of the statement or statements specified in your notice to Producer, and your examination shall be limited to the foregoing. Your right to inspect Producer’s books and records shall be only as set forth in this paragraph, and Producer shall have no obligation to produce such books and records more than once in any calendar year or more than once with respect to any statement rendered to you.
(l) If Producer shall not receive payment in United States dollars in the United States, Producer shall, if Producer is able to do so, accept such payments in foreign currency and deposit in a foreign bank or other depository of your choice, at your expense, in such foreign currency such portion thereof, if any, as shall equal the royalties which would have actually been payable to you hereunder in respect of such exploitation had such payments been made to Producer in United States dollars in the United States, and Producer shall notify you thereof promptly. Deposit as aforesaid shall fulfill Producer ‘s royalty obligations hereunder as to such exploitation.