BASIC LEGAL TIPS FOR RECORD PRODUCERS

     These days the recorded music business is producer-driven more so than ever before. Producers not only create the sound bed and make the singer or rapper sound great performing over it, but producers also discover and develop new talent. It is important as a record producer to understand that each situation is unique, and the relationship between the record producer and the artist varies greatly depending on the arrangement between the parties as well as the genre of music. Producers have traditionally been paid for their services as employees or as independent contractors and their contributions to the creation of the sound recording in the studio are generally contractually deemed to be a work-for-hire for the artist or record label under the copyright law. As such, the copyright in the sound recordings is owned by the artist or the record label. 

     Sometimes a producer may be paid a flat fee for his services in the studio, but more frequently the producer is paid a fee that is deemed an advance against future producer royalties based on sales of the recordings. However, the paradigm keeps changing and has evolved over the years. Recorded music is more producer-driven than ever before. Producers now sometimes not only help capture the sound in the studio and use the available technology to mold the sound to be as commercially acceptable as possible, but more and more producers these days are finding and discovering new talent and developing the artist’s sound and even, in some cases, collaborating as a co-writer of the artist's songs.

     When dealing with recorded music there are two copyrights that may come into play under the copyright law: (1) one in the sound recording or the fixation of sound and (2) one in the underlying  music and lyrics, the musical composition or song. Copyright vests in the creator as soon as the idea is “fixed in a tangible medium”, so as soon as the author writes it down or the creator records it the copyright is created. In general the creation of the sound recording in the studio is separate from the writing of the song. This is usually true in most cases (e.g., in the rock, country and folk genres) where the artist usually comes into the studio with the song already completed or taking shape and the producer will then just assist in creating a recording of the song. In other cases, however, the producer's involvement may cover both copyrights. For example, a producer may create the musical bed or track (often before any artist, singer or rapper is even involved) so he also becomes a songwriting collaborator with the artist who writes the lyric and performs the vocals in the recording studio. In such a situation, 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. It is also true that in today's top pop music world many of the producers actually co-write the songs with the artists in the process of creating the hit record (and sometimes numerous other songwriters as well).

     It is generally standard operating procedure when dealing with an artist, particularly one signed to a major record label, for a producer to be asked to sign a contract to transfer any claim the producer might have in the sound recording copyright to the artist or the label in exchange for an advance, royalties and producer credit. Producers generally earn revenues from advances and royalties paid for the sale of the sound recording (and may also earn mechanical royalties and performance monies under circumstances where the producer is also 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, TV and video game use, as well as from social media and from streaming services like YouTube and TikTok. 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 may be deemed to be joint authors and 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.

      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 written contract is easier to prove since the terms of the arrangement are in a  signed writing. A simple contract should set forth the basic details of your arrangement (i.e., who is paying how much, and for what? advance/fee, royalty, producer credit, etc.) and then be signed by all parties to the agreement. 

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. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you as appropriate. My advice: never sign anything - other than an autograph - without having your entertainment lawyer review it first.

 

Wallace Collins is an entertainment and intellectual property lawyer. He was a recording artist for Epic Records before graduating Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com 

 

HOW TO FIND THE RIGHT ENTERTAINMENT LAWYER: THEY CALL IT “PRACTICING LAW” BUT YOU DON’T WANT YOUR COUSIN VINNY PRACTICING ON YOU!

    As an artist or creator in the entertainment industry you do not need to know everything about the business in order to succeed, but you should hire people who do. When I was a teenage recording artist back in the late 70's, I can remember being intimidated by the "suits". Now that I am on the other side of the desk, I have a broader perspective. I am here to tell you that those "suits" can help you; provided, however, that like any other aspect of your life, you use your instincts in making your selection and find the right lawyer. Your cousin Vinny the real estate lawyer might really want to get into the entertainment field (doesn’t everybody?!), but you need to find a lawyer with experience in this area of practice. They may call it “practicing law” but you don’t want your cousin Vinny practicing on you.

    The best place for you to start building your "team" of representatives is with a competent lawyer who specializes in entertainment law, which is a combination of contract, intellectual property (copyright and trademark) and licensing law. Eventually, your team could possibly include a personal manager, an agent and a business manager/accountant. Your lawyer can assist you in assembling your team. He may then function as the linchpin in coordinating the activities of your team and insuring that these people are acting in your best interests. 

    A good lawyer will navigate you safely through the minefield that is the entertainment industry. Entertainment contracts can be extremely complicated. Proper negotiating and drafting requires superior legal skills as well as knowledge of entertainment business and intellectual property practice. Your lawyer can explain the concepts of copyright and trademark to you and assist you in securing proper protection for your work. In addition to structuring and documenting a deal to maximize the benefits to you, some lawyers also actively solicit deals for their clients. Moreover, if you are not properly compensated in accordance with your contract, you may look to your lawyer to commence a lawsuit to enforce the terms of your contract. 

    When looking for a lawyer, you should not be afraid to speak with a few before retaining one. Some lawyers are with large firms but many are solo practitioners. Lawyers have various personalities and legal skills and you should seek out a situation where the "vibe" is right. Although your first contact may be on the telephone or online, most likely you will have an initial consultation for which there may be a modest charge, although some lawyers may not charge for that first meeting depending on the circumstances. Remember, your lawyer's time is money, so be prepared and be on time for your appointment. 

    It is not necessary that your lawyer like or even understand your creative endeavors be it an app, a book, music, your film or TV pilot idea. It is more important that you feel he or she is a trustworthy and competent advisor. The lawyer/client relationship is known as a "fiduciary" relationship which means that a lawyer must always act in your best interest and not his own or that of anyone else. Your lawyer is also under a duty to keep your conversations with him confidential. It is often in your best interest that it stays that way. 

    Keep in mind that a lawyer with other big name clients is not necessarily the best lawyer for you; if it comes down to taking your calls or those of a superstar, which do you think will get preference? 

    You are probably wondering, "How much will this cost?" Well, remember that the only thing a lawyer has to sell is his time. A lawyer, much like a doctor, is selling services, so if you go to him for advice you should expect to pay. With the odds of success in this business being what they are, very few lawyers will agree to work for you and wait for payment until you are successful and can pay your bills. A lawyer specializing in the entertainment field usually charges an hourly fee or a percentage of the money value of your deal. Hourly rates generally run $500 and up. Percentages on a pending deal are based on the "reasonable value of services rendered" in connection with a particular contract and generally run around 5-10% of the deal. A few lawyers may charge a set fee, such as $1,000 or $5,000, to review and negotiate certain documents. Check around to see if the fee arrangement proposed is competitive. Most lawyers will require a payment of money in advance or "retainer", which can range anywhere from $500 to $10,000 (and more for litigation matters). Even those who take a percentage of the deal as a fee may require that you pay some amount as a retainer. In addition to the hourly fee or percentage, you are usually required to reimburse your lawyer for his out-of-pocket costs, including long distance telephone calls, photocopies, postage, fax, etc. 

    You should realize that in retaining a lawyer you are making a contract even if your agreement is not written. In return for a fee, the lawyer promises to render legal services on your behalf. However, some lawyers may want a fee arrangement in writing (specifically in connection with a percentage deal) and/or a payment direction letter. A cautious lawyer will advise you that you have the right to seek the advice of another lawyer as to the propriety of a percentage fee arrangement. 

    You should consult a lawyer if you are asked to sign anything. Too many aspiring creative artists want to get a deal so badly they will sign almost anything that promises them a chance to do it. Even successful careers have a relatively short life span, especially when it comes to careers in music, movie and television. Therefore, it is important for you to get maximum returns in the good years and not sign away rights to valuable income. 

    Do not rely on anyone else (or even their lawyer) to tell you what your contract says. Your lawyer will "translate" the deal for you and explain to you exactly what you are getting into. Do not 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 help negotiate more favorable terms for you. Everyone needs someone to look out for his or her interests. That is why you need a lawyer. If you believe in yourself and your talents then give yourself the benefit of the doubt, invest in legal representation and do not sign anything without consulting your lawyer and making sure it is the right deal for you.

    As a final piece of free legal advice, never sign anything – other than an autograph - without having your own lawyer review it first.

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 30 years’ experience in music, film, television and emerging technology, and he handles many current digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Website: http://www.wallacecollins.com 

USPTO Announces Increased Filing Fees in 2025

The USPTO has announced that it is increasing its fees in 2025 as follows:

•Application fees are presently either $250 or $350. The USPTO has done away with the $250 fee; every application will be $350 for each trademark in each class.

•There’s a new fee for “insufficient information” including failure to provide a translation of the applied-for mark. The new fee is $100 per class, per mark.

•Another $100 increase is for Madrid Protocol filings. The USPTO then sends these international applications to WIPO and will charge $600 per class on top of the filing fee that each country’s IP office may charge.

•If an applicant has a long string of words to describe the goods/services for their trademark, there will be a new $200 fee to file more than a thousand characters of text.

•Note that if/when a registration is audited the USPTO charges a $250 fine per class to delete any goods from the class of goods.

•To file an amendment to allege use, or to file a statement of use, is going up from $100 to $150 per class.

•Filing a fifth-year declaration of use and incontestability will increase by $150 per class, up to $575 and filing a 10th-year renewal application will increase by $125, up to $650.