In an infamous footnote to film history, Stanley Kubrick commissioned renowned film composer Alex North to score 2001: A Space Odyssey and personally invited him to the 1968 New York City premiere screening.  North, sitting near Kubrick, was devastated to discover as he sank into his seat that Kubrick had replaced all of North’s music with previously recorded classical music.  Talk about surprise ice picks to the heart.   Kubrick, loved more for his artistic preeminence than his Arctic personality, was nonetheless entitled to trash the score and crush North under foot if he wished. To his credit, North took it in stride, commenting: “Well, what can I say? It was a great, frustrating experience.”  

Can a director or producer simply scrap a score?  In most cases, yes. Composing agreements typically provide no obligation for the filmmaker to use the score, as long as the composer is compensated. But the composer’s compensation from the film producer is only part of the money picture for most composers.   Many times more than half of the income to a composer comes not from the pockets of the producer, but from publishing receipts.  In the United States, when a movie plays in a theater no publishing income is generated. This is thanks to a court battle six decades ago between music publishers and U.S. theater owners (the 1948 Alden Rochelle court decision and consent decree).   But theaters in most of the rest of the world still pay a portion of their box office revenue (between 1 and 5 percent generally) to the owner of the copyright of the film score. In the US, composers will earn money from network and cable television airings and perhaps a soundtrack album if the score is included, but the foreign box office money will dwarf all of these US sources combined.

For example, a major motion picture or breakout independent film released worldwide may net more than $200,000 in income for the composer from foreign theatrical box office royalties in the first year of release.  US network, cable, soundtrack and other sources combined may equal about half that much. Of course most independent films will net only a few thousand dollars in music publishing money. In any event, this money is “gravy” for the composer in addition to the composing fee paid by the producer.  And the producer doesn’t have to pay it.  So for the independent filmmaker, the lure of music publishing income can entice a talented but under-the-radar composer to create a film score at a low fee for a film that may realize a foreign release.

The independent filmmaker will also negotiate with the composer over ownership of the copyright in the film score.  In almost all cases, the publishing money discussed above will be split equally between the music publisher (owner of the copyright) and the composer.  Thus, the filmmaker who retains publishing rights in the score will secure these sources of income.  Allowing the composer to keep the publishing rights is a bargaining chip for the cash-strapped producer willing to forego this income later should the film succeed in foreign markets.

Another issue is instrumentation, which is as much an artistic as a budgetary concern.  All films don’t need large, lush orchestral scores to lavish on an audience. Simple and spare instrumentation can win the day, as in the 2005 Oscar-winning score to “Brokeback Mountain” by Gustavo Santaolalla mainly featuring classical guitar, pedal steel and light string arrangements, or Elliott Goldenthal’s small Mexican guitar ensemble in the 2003 Oscar-winning score to “Frida”.  Goldenthal recalls the scoring process, saying, “The few times I tried to reach for more complex harmony and structure, the movie kicked me out with pointy Mexican boots. These ideas remain on my studio floor under a pile of empty Corona bottles.”  Not only was the simple and gorgeous score the most celebrated aspect of the film, but Goldenthal’s romantic partnership with film director Julie Taymor made an Alex North ending highly unlikely.

Most independent film maker may hire a composer on a “package deal” basis, which includes a budget for all musicians and recording costs, arranging, composing and conducting, if an orchestra is involved.  For those films that simply must have a sweeping orchestral score, eastern European orchestras offer a cheaper alternative to professional orchestras in the United States. Online virtual orchestras in the Czech Republic and elsewhere will record online in real time for a fraction of the expense of a similar treatment in the states.  Others will revert to the trusty old synthesizer score, as in Georgio Moroder’s  ''Midnight Express'' or Vangelis’ ''Chariots of Fire'. ' How well a synthesizers can simulate an orchestra depends on the ears of the listener. But it’s a good deal for the composer who is also the solo instrumentalist.  

Nearly 50% of all film scores are mainly synthesizer based, but usually with acoustic instrument supplementation.  If a very low fee is involved, a composer’s agents or attorney may ask for additional contingent compensation for network TV, blu-ray, and even sometimes a low percentage of producer's net profits.  The indie filmmaker wants to avoid these if possible, as it will be easier to negotiate with a studio distributor without these encumbrances.  Novice film composers may be willing to compromise.

Curiously, it was a novice film composer who scored much of Kubrick’s final film “Eyes Wide Shut”.  But the virtually unknown Jocelyn Pook had much pluck, putting Kubrick on hold when he called to discuss her scoring of his project. She had been chatting with a friend when he called and, "I can't just leave people hanging there," she commented. When she finally got around to picking up the director’s call, it went surprisingly well and in the end  her music survived to the film’s premiere, although Kubrick sadly did not.   

William Hochberg is an entertainment and media lawyer based in Santa Monica, California at High Mountain Law.  www.highmountainlaw.com