Cinema Canada (Dec 1979-Jan 1980)

performance of his music. The application by the MPTA under Section 28 of the Federal Court Act has not yet been heard by the Court. Furthermore, it is not an appeal from a judgment of a court; rather, it is application for review of a decision of a tribunal, the Copyright Appeal Board to approve the amount of royalties which are to be paid by theatres to the societies. The tariffs in dispute have been in effect in Canada for many years. At the present time CAPAC collects from theatres in Canada a royalty equal to ten cents per seat per annum for theatres of a seating capacity of 499 or less seats and PROCAN collects an annual fee of $12.00 for equivalent theatres. This is to be contrasted with the significant theatre tariffs in Europe which equal a portion of box office revenues. In the United States theatres do not pay a license fee for performing rights; therefore, the composers have negotiated with the film producers for synchronization fees for reproduction of film music in the United States which compensate the composer for the lack of such performance royalties. The Mechanical Right Section 19 of the Copyright Act provides for a royalty of “two cents for each playing surface of each record” where film music is produced on phonograph records and pre-recorded tapes. In practice, the producer of the soundtrack LP pays a royalty to the owner of the mechanical right equal to two cents ($0.02) per song per record sold. The CMRRA administers the mechanical rights in Canada as it is a form of a reproduction right. Ordinarily, a negotiation takes place between the film producer and the CMRRA. In the instance of an impasse. the compulsory provisions indicated above may be invoked. For example, in the United States, the statutory royalty for such use is generally equal to two and three quarter cents ($0.0275) per song per record and in some countries. the royalty is based upon a percentage of sales. The Print Right The consent of the copyright owner in the music is also required for a film producer to produce “sheet music.” The market for music in this form has grown recently and is significant for successful films which include themes and featured performances of popular songs. Should the film producer wish to exploit this aspect of the promotion of the film. the print right must be acquired. The Agreement Between the Composer and the Film Producer Elements of Film Music Costs When original music is to be created, the film producer negotiates with the composer or his representative. In determining the compensation to be paid for the creation of original film music, the reputation of the composer is significant. The scope of the work is also considered: that is whether the composer is simply to underscore the film or, in addition, to create themes and feature songs. The markets in which the film will be exhibited and whether a film is to be produced in foreign language versions are also relevant. Non-theatrical uses such as broadcasting and video discs are also considered. The production of an LP recording of the soundtrack involves additional considerations of mechanical royalties for the sale of the recording and the performing right royalties for the broadcast performance of the music. Apart from expenditures for the creation and use of music in film, the film producer must also absorb the cost of arranging the music, the cost of production of the music including the costs of musicians, vocalists, recording studios and all technical support and materials. Film producers sometimes resort to pre-recorded film music libraries which provide various types of music which can be edited to conform to the needs of the film producer. Criteria such as exclusivity of use of music and adaptability to the artistic requirements of the film must be considered in addition to the above elements. The Transfer of Copyright in Original Music The Canadian Copyright Act is specific in requiring an assignment of copyright to be in writing. Assignmentis the transfer of the ownership of copyright and is to be distributed from a license or permission to use the copyright. The Canadian Copyright Act contains an exception to the general rule of assignments in writing. This exception is set out in subSection 12(3) of the Copyright Act, as follows: “Where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall in the absence of any agreement to the contrary, be the first owner of the copyright. . .” The issue of “contracts of service” where “the work was made in the course of his employment” has been considered by the courts and it may be concluded from these decisions that the composer must be ade facto employee to vest rights of copyright in the film producer. In determining whether a “contract of service” exists, the courts will examine the relationship between the film producer and the composer including the services rendered, the relationship between the parties, the exercise of the person rendering the services, and the place where services are to be rendered. This position contrasts with that of the United States copyright laws which permit a transfer of copyright by an agreement fora “work for hire.” In Canada, the composer must actually be an employee to lose his rights to ownership of his music. In the United States, by stating in a contract that a work GOLDEN TOAD MUSIC ORIGINAL SCORES AND SONGS FOR FILMS AND TELEVISION Whether your film or video production is high or low budget, short or long, expressive and appropriate music can add greatly to its impact. Our credits include scores for C.B.C., C.T.V., Western Films, Cotter Films and Eaton’s, Sears and Safeway commercials. Call Victor Davies. He’ll be glad to consult with vou on your requirements and play vou samples or our work. Phone (416) 698-5995 102 Lyall Ave., Toronto, Ont. M4E 1W5 Cinema Canada/23