Tuesday, December 16, 2014


     Producers should be aware of their legal rights when it comes to working with recording artists in the studio. These days the music business, particularly the pop and urban markets, is producer-driven more so than ever before. Producers not only help capture the sound in the studio and use the available technology to mold it to be as commercially acceptable as possible, but more and more producers are finding and discovering new talent and developing the artist’s sound and even co-writing the songs with the artists.

     As a producer there are two copyrights that come into play in your business under the copyright law: one in the sound recording and one in the underlying musical composition or song. I usually suggest to my producer clients that they file a copyright registration with a Form SR covering both copyrights as soon as they begin to circulate a finished track (whether passing it around or posting it on a website or social media). The filing of a copyright registration in Washington D.C. gives you additional protection in so far as it establishes evidence of the existence of such copyright and gives you the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of attorneys’ fees to the prevailing party. Forms are available at www.loc.gov.

     Under copyright law, when a producer and an artist work together to create a sound recording in the studio they become co-authors in the work. The producer and the artist become joint owners of the copyright in the sound recording. In urban and hip-hop music, the producer who creates the musical bed or track becomes a collaborator with the artist who writes the lyric and performs the vocals in the recording studio so that the producer and artist become joint owners not only in the copyright in the sound recording but also, by current custom in the industry, in the underlying musical composition. Copyright vests in the creator as soon as the idea is “fixed in a tangible medium”, so as soon as you write it down or record it the copyright is created. Under the copyright law, although a non-exclusive license can be verbal, you can only transfer your right in the copyright by signing a written agreement to transfer them - so be careful what you sign.
     Although it is generally standard operating procedure when dealing with the major record labels to be asked to sign contracts to transfer your sound recording copyright to the label in exchange for an advance and royalties, you must be cautious with any agreement you are asked to sign whether by the artist or the record company. In addition, the underlying song copyright and the related “publishing rights” have an important value that the producer should know how to monetize whether through a publishing deal or acting as his own publisher. Producer contracts address numerous issues and the language can be a minefield - it is best to have an experienced entertainment lawyer navigate your way through that minefield.

      Producers earn revenues from advances and royalties paid for the sale of the sound recording, and may also earn mechanical royalties and performance monies (e.g., ASCAP, BMI, SESAC) if the producer is deemed a co-author of the musical composition. In addition, the producer should earn income from all use and exploitation of the record just as the artist does, whether from synchronization licenses for film and TV use, from social media, and from streaming services like YouTube and Spotify. Producer agreements should also provide for payment to the producer of SoundExchange revenues. Most of these issues are dealt with in the producer contact. In the absence of paperwork concerning the producer’s work in the studio and the producer’s share of income, then the producer and artist are joint owners of the sound recording copyright and the issue is then how to divide the revenues that may arise from the use and exploitation of the recording.

     Never sign anything - other than an autograph - without having your entertainment lawyer review it first. Do not rely on anyone else (or even their lawyer) to tell you what your contract says. And never let anyone rush you or pressure you into signing any agreement. There is really no such thing as a standard "form" contract. Any such contract was drafted by that party's attorney to protect that party's interests. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you.

     Keep in mind that it may, in fact, be in your best interest to "get it in writing" if you have an arrangement with someone. This is especially true in collaborative situations. Otherwise, you run the risk of a disagreement later over the actual terms of the oral agreement, and it becomes your word against that of the other party. That is not to say that an oral agreement is not a binding contract, but a contract is easier to prove if the terms of the arrangement are in writing. A simple contract may not necessarily require extensive involvement by lawyers. A contract can be as basic as a letter describing the details of your arrangement which is signed by both parties to the agreement. However, at the end of the day, if you believe in yourself and your talents, give yourself the benefit of the doubt, and invest in good legal representation - all the successful producers do.

Wallace Collins is an entertainment and intellectual property lawyer with more than 30 years of experience based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com