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
