Musicians and intellectual-property rights advocates were outraged earlier this year when highly paid screenwriter Joe Eszterhas took out full-page trade ads soliciting music for his upcoming “An Alan Smithee Film.”

Crying poverty (“considering the expensive nature of my divorce settlement and the number of babies we have running around our house, I can’t afford to finance the music”), Eszterhas informed the music community that songwriters would only be paid if their tunes were included on a soundtrack album.

To composers and songwriters, this was just the latest example of unfair treatment by the filmmaking biz. The reason is simple: They are the only key creative contributors to films and TV whose rights are not protected by a union or guild.

Says Jay Chattaway, president of the Society of Composers & Lyricists: “The concept of free music is a crime. I’m sure that nobody went to (the ‘Smithee’ filmmakers) and said, ‘How about giving us free editing time,’ or ‘we need somebody to make free prints of this film.’ Those things were understood because those people are part of an established guild that would just not tolerate such ludicrous behavior.”

Everyone agrees that Eszterhas’ solicitation was outrageous, but opinions differ about whether his action would have been prohibited if the old Composers and Lyricists Guild of America (CLGA) still existed.

Until 1982, the CLGA was the composers’ equivalent of the Writers Guild or Directors Guild: the recognized collective-bargaining agent that governed working conditions for those who contributed original music and songs to movies and TV. Founded in 1953, it was certified as a labor union in 1955, but was crushed by the studios after a protracted lawsuit (that lasted through most of the 1970s) over ownership rights to the music.

Cinematographers, editors, art directors, makeup artists, grips, you name it: they are represented by guilds or unions. Even the musicians who play the scores have a union (the American Federation of Musicians), but the people who write the music — without question one of the most creative, complex and exacting arts in filmmaking — do not. (Orchestration and conducting, often done by composers, are covered by AFM rules, but the act of creating a song or score is not.)

The result, according to composers and lyricists throughout the industry, is a continuing decline in respect for their craft. Lower pay, less time to write, unreasonable demands by directors and producers ignorant of the complexities of the process, have become the norm, they say.

Says Oscar-winning composer Elmer Bernstein, a former CLGA president: “Composers are being abused in the workplace in terms of work procedures, and are certainly being abused economically. There’s no question that, in terms of the budgets of the pictures, and what (artists and craftspeople) are making in other professions, the composers are very disadvantaged.”

It’s less noticeable at the top of the scale than at the bottom, especially in television, where practically everything is “packaged” (the composer expected to deliver a finished score, including writing, performing, paying the musicians, mixing, etc., for a flat, all-inclusive fee).

Movie-of-the-week fees have tumbled, as have pay rates for weekly series scoring. As little as seven years ago, the average TV-movie music budget was $90,000 (including a $25,000 fee to the composer); now many are $20,000 total. The music budget for a one-hour drama used to be $40,000 (including a $5,000 to $6,000 composer fee); now the flat-fee package can be as little as $7,000.

Back in the ’60s, composers often had two weeks to write a one-hour TV score; now it’s a matter of a few days (and in the case of sitcoms, often just hours).

The CLGA, like other guilds, had a “minimum basic agreement” that prohibited spec writing, set minimum fees for composing for films and television, and outlined essential working conditions. All that went out the window when the CLGA folded.

Its successor, the Society of Composers & Lyricists, petitioned the National Labor Relations Board for recognition in 1984. But the NLRB sided with the studios, and ruled that composers and lyricists were not “employees” but rather “independent contractors” not entitled to union representation. The SCL remains Hollywood’s organization of composers, but serves as more of an educational entity than the CLGA.

Two years ago the SCL again began investigating unionization issues. Then-president Richard Bellis (“Stephen King’s It”) found that refiling with the NLRB would be expensive ($150,000 or more), and discussed the possibility of affiliating with existing unions, such as the musicians’ union or the Intl. Alliance of Theatrical Stage Employees (IATSE), and “hope for voluntary recognition by the producers at the table.”

SCL members, however, split three ways on the issue: some favored the AFM, some IATSE, some desired no union at all. “If we could have our own union, it would be much easier to get a consensus,” Bellis says. “(As it stands now) I don’t think we can achieve the type of majority within the community that would give us the kind of membership that, for instance, the Writers Guild has.”

Bellis points out that the NLRB needs to re-define the terms “employee” and “independent contractor” for the ’90s, but until that happens, “we really don’t have a chance” at achieving union status with the federal labor agency.

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