Movie Musicians Are New Target

Studios Use Loophole to Avoid Film Fund

Volume CIV, No. 12December, 2004

Jay Schaffner with Mikael Elsila

Major film studios have found a new way to cut their costs — and take away money from musicians at the same time. The new practice involves bypassing the AFM’s motion picture agreement in at least two different ways.

The AFM called a special meeting in Los Angeles last month to address the problem. 802 President David Lennon and Recording Supervisor Jay Schaffner attended. Also in attendance were officers from Local 47 (Los Angeles), Local 655 (Miami), Local 257 (Nashville), Local 5 (Detroit), Local 149 (Toronto), ICSOM and the RMA, along with legal counsel from the firm of Bredhoff and Kaiser.


Traditionally, if you are a recording musician, you get paid in at least two ways when you record for a movie under a union contract. First is the recording session itself when you record the movie soundtrack.

The second is the money you receive from the film fund (whose official title is the Film Musicians Secondary Market Fund). Your check from the film fund is proportional to how well your film did in “secondary markets,” which include TV, videocassette, DVD, pay cable and in-flight movies. (For films made for television, secondary markets include DVD, in-flight and those rare cases where a television film migrates to the big screen.)

The movie studios are trying to decrease the amount of money they pay into the film fund. They are also trying to eliminate musicians’ eligibility for earning film fund money. Here’s how.


Movie studios are required under the AFM motion picture agreement to pay 1 percent of all gross income on secondary product (like DVD’s) into the film fund. This gets divided up by all the musicians who performed on the music score.

However, movie studios are only required to pay into the film fund if there was an “original scoring session” or sideline session. That language is important, and that’s how studios are violating the spirit of the agreement.

An “original scoring session” refers to musicians sitting down to record the score to a movie.

Instead, studios are hiring musicians far in advance of a movie’s production to write original songs and other music. They are not telling musicians that this music may appear in a movie some day — they are saying that this is music for a sound recording (like a CD).

But the music ends up in a movie.

Since the music was written before the movie was finalized, and since there was technically no “original scoring session,” the film studios are able to avoid paying any money into the film fund.

The musicians who perform on this music that ends up in the movie are paid a “new use” payment, which is required under the AFM contract. But even if the movie sells millions of DVD’s, the musicians won’t see a penny from the film fund.

Let’s say a Marvin Gaye recording from 1973 ends up as the background music for a new film. The original Marvin Gaye musicians will receive new use payments since their music is now being used in a movie and the original recording was done under a union contract. But they will not receive any money from the film fund, even if the movie is the biggest DVD seller of the year.

Or let’s say Paul Simon is commissioned to write new music that ends up in a movie. But the music isn’t technically a “scoring session,” since the music was written before the movie was finalized. In that case, Paul Simon and his side musicians won’t receive any money from the film fund either.


Another way studios are hurting musicians is an older method: they are using musicians outside of the U.S. Thanks to digital technology and the Internet, it’s relatively easy for studios to record music outside of the country and bring it back in. Since these sessions are not recorded under an AFM agreement, they don’t trigger film fund payments either.

For example, the music to the “Lord of the Rings” movies was recorded by Howard Shore in London and was not filed under AFM contracts. These musicians will not receive film fund payments.


Let’s take the movie “Cold Mountain,” produced by Miramax in 2003.

There are at least three kinds of music in “Cold Mountain.” One is the song “You Will Be My Ain True Love” by Alison Krauss, featuring Sting.

Because Miramax commissioned this song before the movie was finalized, it is not considered a “studio scoring session.” And the side musicians who performed on this track will not receive any money from the film fund, even if “Cold Mountain” goes on to sell millions of DVD’s.

A second musical part of “Cold Mountain” is the actual underscoring. Miramax outsourced this music to a country outside the U.S. and therefore it is not covered by the AFM agreement. If the underscoring music had been recorded in the U.S., the musicians would have been eligible for film fund payments.

(According to the AFM motion picture agreement, a studio is generally required to score its movie in the U.S. if the film is shot here and if the storyline is based on content from our country. But “Cold Mountain” was actually shot in Romania and therefore was not required to file the job in the U.S.)

Finally, “Cold Mountain” also utilizes traditional music to invoke the Civil War. These vocal, guitar and folk tunes were recorded as nonunion cash dates. Again, those musicians will not be able to collect film fund payments.


Musicians like Alison Krauss and her side musicians are not doing anything wrong. They may have no idea that their music is being used by the movie studios to circumvent the film fund.

The film studios are doing this because it is an easy way for them to pare down their expenses.

Studios don’t make most of their money on box office ticket sales. Instead, the majority of profits are made on the “back end,” like DVD profits or when the movie plays on TV. By getting around the film fund, studios save big bucks on their back end payments to musicians.


The meeting in Los Angeles to deal with this situation had several outcomes.

The AFM will make available to all locals a current list of movies that are being scored.

This list will include movies that are in production and where we think the scoring is taking place. Recording musicians will be able to look at this list and be alert to the fact that some sessions advertised as “phono sessions” are really “scoring sessions,” which should trigger film fund payments.

We will also try to monitor artists who have signed deals with studios to write original songs. These songs may actually be a new kind of scoring and, as such, should be considered scoring sessions. Musicians on these sessions have a right to film fund payments.