New Buyout Clauses Raise Concerns for Music Creators

The Music Creators North America (MCNA) alliance and its global affiliate the International Council of Music Creators (CIAM), together representing hundreds of thousands of songwriters and composers throughout the world, have recently launched a crucial, international education project designed to encourage all members of the music creator community to recognize the dangers inherent in assigning the rights in their works on a “full buyout basis.” I am writing to share their informative message below so that you may evaluate its application to your own career and circumstances:

To: All Music Creators

You may already be aware through personal experience that many music producers, distributors, and other music-related entities currently appear to be accelerating their attempts to utilize work-for-hire and other types of agreements to take advantage of uninformed music creators, insisting upon “full buyouts” of their musical works. Full buyouts, as currently defined, seek to acquire all rights and to eliminate any possibility of future royalty participation for creators beyond a one-time fee, even to the extent of eliminating the composer’s participation in the writers’ share of performing rights royalties.

In light of that troubling trend, we urge you to read the SCL’s current Buyout Study carefully (available at, and to discuss with your legal and other advisors the potentially devastating ramifications of full buyouts to your career. Naturally, all individual decisions concerning such matters should take into account the unique circumstances of each individual music creator. Due to the potential dangers presented by full buyouts, however, we suggest that before “selling” all rights in your work without the provision for future royalty participation in some form, the securing of personalized legal and accounting advice should be considered as absolutely essential to protecting your rights in the manner that is best for you.

To assist you and your advisors in evaluating various agreements that may be presented to you for signature, here are some examples of clauses that may currently be in circulation in various forms that should be subject to the highest levels of scrutiny:

  • Example 1: Notwithstanding anything to the contrary express or implied in this Agreement, no further fees, royalties or other compensation (fixed or contingent) shall accrue to Composer in connection with the foregoing exploitations, and Composer shall have no claim in and to any income generated by Company or its affiliates or designees in connection therewith, it being understood that the one-time Fees (as applicable) constitute sufficient and valuable consideration to Composer for all such rights.
  • Example 2: Except for the [one-time] fee payable pursuant to this paragraph, there shall be no other monies, including without limitation, any synchronization fees or any royalties of any kind (including without limitation, public performance royalties), payable to Composer in connection with the creation, acquisition and exploitation of the Musical Composition or any Services rendered by the Composer, including without limitation, in connection with any advertising, publicizing or exploitation thereof, regardless of the method, media or types of devices utilized for the exhibition or exploitation thereof.
  • Example 3: Subject to Company paying Composer the Fees, all results and proceeds of the services provided hereunder by Composer will be created as a ‘work made for hire´ (for the purpose of U.S. copyright law and all other copyright laws throughout the universe) for Company. Accordingly, the following provisions shall apply to such “Work(s):”
    • i. All rights, title and interests in and to the copyright and one hundred percent (100%) of the rights in and to the Work, including, but not limited to, the publishing, administration, synchronization and performance rights of the Work, will be exclusively held by Company. For the purpose of clarity, Company shall be entitled to collect one hundred percent (100%) of any and all income in connection with the exploitation of the Work.
    • ii. Company shall own one hundred percent (100%) of the right, title, and interest in and to, including without limitation, the copyright of, the Works.
    • iii. If or to the extent for any reason in any country, the Work is not recognized to be a work made for hire, then Composer hereby irrevocably and absolutely assigns to Company all rights (copyrights, rights under copyright and otherwise, whether now or hereafter known) and all renewals and extensions (as may now or hereafter exist) thereof, in and to such Work throughout the universe and in perpetuity, for all media/formats/methods/manner whether now or hereafter known.
    • iv. For purposes of clarity, Company shall have no obligation to greenlight the Project, and in the event the Project is not greenlit (as confirmed by Company in writing), Company shall not have any obligation to pay Composer hereunder any further fees, and, all rights in and to the Work shall be frozen and may not be exploited by Company or Composer without the other party’s prior approval.

The scope of the language in the above examples can be read as running contrary to more than a century of custom and practice in the music industry. The traditional safeguards that such clauses seek to eliminate have for over 100 years served to protect and defend composer and songwriter rights, and to support the abilities of Collective Rights Management Organizations (ASCAP, BMI, etc.) to collect and distribute to music creators the revenue those rights generate when works are performed and enjoyed by the public. It bears repeating that what’s important for you and your advisors to consider is that if you give away all rights in the manner of a full buyout, you are giving away any chance of future income from your music for the project, even as the producers go on to exploit the work and earn potentially substantial revenues for themselves. As such, it is prudent to take seriously the potential threat presented to you by the full buyout trend as you discuss these matters with your advisory teams.

The Collective Management system was put in place many decades ago to ensure that as a project succeeds, music creators will have the opportunity to receive a fair share of the resulting proceeds. Your score or song is a hugely important part of the project to which you have contributed, and the Collective Management system recognizes and protects your right to fair remuneration with that principle in mind. The protections afforded by this system have been hard won, and continue to be fought for at great expense. We therefore also suggest that as you make your individual determination as to what terms are or are not acceptable, keep in mind the long-term effects that your determination may have on the health of the entire music creator ecosystem in which you earn your living.

Finally, in order to help us address the full buyout issue on a Congressional basis if necessary, we ask that if you see language like the above examples (and provided you are not contractually or otherwise prevented from doing so – check with your legal advisors in this regard prior to revealing any information), please bring it to our attention. This will assist us in building a database of such clauses that may be extremely useful in helping to defend your rights, and those of all other music creators, in future legislative initiatives.

Members should also be reminded that their ability to collect performance royalties is by custom and practice, as embodied in their contract. There is nothing in the Copyright Law that mentions “writer royalties”, so there must be language in the contract stating clearly that the writer has the ability to collect their share of performance royalties directly from their PRO.

We look forward to your input on this important issue, and to your assistance in carefully monitoring the situation in anticipation that seeking governmental assistance and oversight may be necessary to fully protect your rights to fair remuneration.

In regard to the collection of the data referred to above, the PMA will be pleased to receive and pass along to MCNA any such information you may wish to convey. Please, however, remember to check first with your legal advisors to ensure that to do so is permissible under the terms of your agreement, and pursuant to other applicable facts and circumstances. Such information can thereafter be delivered to us at or submitted below.

PMA Academy Series – Avoiding Legal & Reputation Problems From Sampled Loops, Beats, Tracks & Hooks

“Does this work include samples, yes or no?“

Have you ever seen this question in a contract or submission form? Has it ever given you pause? Most production music composers realize that they can’t sample unlicensed music from other recordings. And, they know that they’re usually safe using sampled instruments from their favorite piano and orchestral libraries. However, many don’t know about the serious problems from using even LICENSED pre-composed loops, beats, tracks and sample packs which have recognizable hooks and phrases, for example vocals, instrument phrases and complete grooves. Not only do some sample library End User License Agreements (EULAs) outright prevent many sync uses, but even where there are no legal restrictions automatic tune recognition software is triggering copyright claim clashes between different publishers, causing infringement accusations and reputation damage for composers and publishers. They are also unpopular with publishers and clients because they lack the originality that they expect. In response, production music publishers are increasingly banning these type of sample uses, so it’s important to know the facts.

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Music, Money and Success – a Q&A with Todd Brabec

How they recommend libraries and composers approach royalty tracking? What is the best method for composers to learn PRO methods for defining their rates for broadcast television royalties?

As I mentioned on the panel, there are many factors that affect what a particular performance royalty payment will be for any type of use. One first has to look at the license fees being paid to the PRO by a particular media (network tv, cable, streaming services, radio, etc.). These fees are arrived at either via voluntary negotiations with industry wide committees, individual users (broadcasters, streaming services, etc.) or federal rate courts, mandatory arbitrations or other types of dispute resolution procedures.

The number of total performances in a quarter in a particular media also comes into play. In the audio-visual area (broadcast tv, streaming services, cable, etc.), many different factors come into play including Type Of Use (score, visual vocal, background vocal, theme, logo, promo, trailer, jingle, copyrighted arrangement of a public domain work etc.) as all have different values relative to each other. Time of day and audience measurement of the show, duration of the use, history of past performances, whether the composition is eligible for a bonus payment and what type of PRO license the user is paying under (blanket, per-program, carve out/adjustable fee blanket, through to the audience, direct or source, etc.) all come into play in determining a final royalty payment.

Our book, “Music, Money and Success: the Insider’s Guide to Making Money in the Music Industry” (8th edition) contains a 60 page chapter on ASCAP, BMI, GMR and SESAC and goes into detail as to the payment formulas and rates.

As to tracking, there are many companies and systems employing either fingerprint, watermark or other forms of music recognition technology (MRT) including BMAT, Soundmouse, SourceAudio, Shazam, Numerator, Tune Sat, Landmark, Nielsen, Gracenote, Audible Magic and DJ Monitor, among others. A number of these companies are in partnerships with the U.S. PROs helping to track and identify musical compositions on television, radio and other media. It is important to remember that this technology only identifies recorded music. As to each particular PRO, both in the U.S. and in foreign countries, it is best to check directly with them as to what technology and music recognition systems they are currently using.

Keep in mind, correct cue sheets as well as correct registrations are essential in getting paid what you are due. For any type of audio-visual production, cue sheets are always necessary. Digital fingerprinting technology has now also entered into the cue sheet creation process. As to the registration of any work, it is important that you understand each PRO’s requirements needed for a correct registration as the requirements differ based on the type and use of a work. In some cases, only cue sheets are necessary. In others, cue sheets and individual registrations are needed. For example, commercials, movie trailers, promos, infomercials and public service announcements require additional information than is normally the case with other types of uses. Always check with each PRO’s website or staff for up to date registration and other requirements.

With most of the business world embracing technology, why have the PRO’s been slow to adopt a technology that more accurately detects performances of my music around the world?  

My understanding is that many of the major PROs around the world are currently using sophisticated tracking systems which are being updated as technology permits. Again, one should check with each PRO as to the technology being utilized.

As terrestrial television is increasingly challenged by streaming and OTT platforms, how can we best ensure composers’ royalties aren’t undermined?

It is important that any new type of user, whether in traditional media or in the online/digital world, have an appreciation of the role that music plays in its productions. In many cases that is evidenced in the license fee negotiations between the user and the PROs and other collection agencies as well as with other copyright owner representatives (music publishers, agents, lawyers and managers, collective bargaining entities, etc.). The producers of audio-visual programming are also important in the equation.

One also has to understand that in the online world (audio and audio-visual streaming services, etc.), there are many trillions of performances occurring and being processed annually as opposed to the much more limited number on broadcast television and cable (of the 5 trillion performances being processed by ASCAP and BMI annually), 98% are digital). Consequently, per performance values vary greatly depending on whether a performance is on a traditional media outlet versus a streaming service. For example, in a recent quarter, 1 network television primetime series theme performance would need in the area of 6 million views on an audio-visual streaming service to equal the same amount of composer or publisher royalty.

It is important to note that as viewership migrates to these AV streaming platforms, their revenues and license fees will grow resulting in increased performance royalties for composers, songwriters and music publishers. In time, these services will most likely eclipse the traditional broadcast model in viewership and as a source of performance royalties . It is critically important that composers strive to retain their performance royalties in their work-for-hire production music agreements during this media transition.

As sampling technology allows for increasingly convincing music production, is there any value in recording real instruments and ensembles or is it simply a waste of money?

Live instruments always improve the quality of any type of recording. Many times, you will see an underlying electronic bed with select live instruments added subsequently. In most cases, it’s a budget consideration.

When providing tracks for library music labels, it seems to be the norm to give up publishing for eternity and the world so when is it legitimate to have an end date or some form of limit depending on the profit made or other? Especially if there is no upfront fee paid for the track?

As was discussed on the panel, in “work for hire agreements”-whether they occur in the production music area, feature film or episodic television area, the actual creator of a work is not the legal “author” of the work. The employer/buyer/company becomes the author and exclusive owner of all rights under the U.S. Copyright Law. There is no termination of copyright ownership right for the territory of the U.S. if a composition is a work-for-hire.

Is it realistic for a lesser known composer writing for a music library to ask them to pitch in for lawyers fees?

Under the heading, “I suppose anything is possible in a negotiation depending on bargaining power”.

“Company shall pay composer 50% of net receipts received by company prorated by composer’s respective writer’s share”? I am curious what the term “prorated” means in this sense?

The term “prorated” has to do if multiple writers are involved in a composition. For example, if the net receipts 100% writer amount came to $100. and there were 2 equal writers on a composition, each would receive $50. If there were 3 writers, each would receive $33.33 each.

If you are registered with BMI, is that enough?  Should one also register with SoundExchange?  How do these entities work together or not?

ASCAP, BMI, GMR and SESAC are performing rights organizations (PROs) which license users (radio, broadcast television and cable, streaming services, bars, concert halls, universities, etc.) for any type of music use (audio, audio-visual, etc.). Songwriters, Composers and Music Publishers join or affiliate with these PROs for representation. This right of Copyright is known as the Performance Right and involves the underlying musical composition.

SoundExchange involves a limited performance right in Sound Recordings. This a statutory license created by Congress and applies primarily to non-interactive sound recording performances on satellite radio, (SiriusXM), Pandora and other non-interactive streaming services, the audio only music channels on cable television (Music Choice) and certain business establishment audio music services (Muzak, DMX, etc.) It is an AUDIO only right and has nothing to do with any audio-visual presentation or download. SoundExchange is the sole entity designated by the Copyright Royalty Board to collect royalties paid by services operating under the statutory license.

Record companies, recording artists and background singers and musicians register with SoundExchange and all royalties are split 50% to the sound recording copyright owner (the label, normally), 45% to the featured artist and 2.5% each to background musicians and vocalists on any recording. SoundExchange collected 963 million dollars in 2019 and distributed $908 million dollars and has become a major source of income for creators. As there is no fee to register, anyone involved in any type of recording should join SoundExchange.

What do you think the percentage of production music songs actually get used?

There are many entities these days providing production music in its many forms. As the majority of this recorded music is already pre-cleared for both the musical composition and master recording, you literally have a “universe” to choose from – a universe that is continually expanding with new offerings. Based on the increasing quality of the music and recording as well as the diversity of composition, the use of production music has increased substantially over the years.

Would you be willing to share the document with the survey data you compiled on ranges of rates for different uses, media type and number of plays?

Basically I mentioned figures during the webinar as examples of some recent years PRO royalties for certain types of uses-score, themes and feature performances- on network primetime television (normally the highest paying uses in my experience) as well as various basic and pay cable systems and audio-visual streaming services. As I mentioned previously, there are many factors that affect the value of any type of performance starting initially with the license fees negotiated for that media and the specific payment formulas of each PRO for a particular type of use (keep in mind, that the 4 U.S. PROs have entirely different payment formulas and payments for every type of use and media).

In order to illustrate the importance in any royalty formula of the license fees negotiated for a particular area, I used an example of 1 minute of score for a primetime network tv show, a pay cable channel, a basic cable movie channel and an audio-visual streaming service. Based on the many factors involved in determining values, the composer or publisher royalty ranged from $120-$225 for the network example, $20-$40 for the pay cable channel, $3-$5 for low end movie channel. For the streaming service, I had $18 for 1 million views. These numbers are for illustration purposes only as many factors can either raise or lower these numbers. The point being, where a program airs is the starting point of the royalty equation.

A production music library wants 50% writers share…is it worth it? So hard to find work, it’s hard to say no these days.

As I stated during the webinar, I have always taken the position during my entire career that a writer’s share should only be attributed to the writer as well as any other collaborating influence or participant.

Comments by Todd Brabec – 7/6/20
* The comments and opinions expressed above are those of Todd Brabec alone.
* For more information on film, television, video game and production music scoring and writing original songs contract clauses referred to in the webinar, see the Television, Motion Pictures and Video game chapters in the 8th edition of “Music, Money and Success”.

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