Production deals: Asking for publishing or licensing?

[dbbubba]

IF... the songs are strong AND the artist is intersting, entertaining and marketable it will not matter if there is a band or not. A band can be built. Also, remember that the process isn't were a label gets a demo and signs an artist. If all of the other ingredients are in place a band will just be neccesary once the record needs to be toured. There is a need for the image of a band if the artist isn't strong on his own, but it isn't always needed to get signed.

Quite often only a key member (or member) has the deal as it is.
I could tick off a list of bands where only one guy is signed and the band guys are salaried.

This would be EVERY C&W act.
I can name some big name rock acts that have the same deal.

Basically, the marketability oif the music and the main srtist is all the label wants to see.
Oh yeah..... and backing to the tune of about $2 million dollars!
I'd be looking for an investor before band members.

I'd also question why he can't keep a band together.
If there are personality issues (temperment, drugs, alchohol) none of this will matter
An investor probebly won't put money into anything risky and the label sure won't.

There are tons of GREAT artists!
They manufacture them all the time!

Danny Brown

[six_wax]

All good points, however, I'd still like to get some insight as to how I might structure a production agreement that would enable me to benefit from the things like licensing for games & movies.

Is the only way to accomplish this to retain partial ownership of the masters? Or can you retain rights to a percentage of licensing?

Additionally, I feel pretty strongly that I'm developing the 'composition' through my arrangement decisions, and I'd like to retain some publishing, even if it's completely without admin rights. Is there an "industry standard" for this, as there is for, say, producer points on mechanical royalties?

(Again, I'm looking at this as something that would be *instead of* my usual points, since this seems to be an unusual case. Even if there are other ways of "trying to make the old model work", I'd like to develop an alternative strategy.)

Other thoughts?

[celebritymusic]

Hi

My opinion would be that if the songs are strong, and they end up making it to TV and movies etc, then that would translate to CD/digital download sales eventually anyway, so your points would still be worth something.

If you are investing time into significant composition as well as production, then you could either ask for a higher up front fee, more points, or if the composition is quite influential, then even negotiate songwriting credit as well. If your artist is reasonable, then they should work with you on this one.

It all depends on what agreement you had from the beginning. If the agreement included you adding to the composition, then you're stuck with the agreement, but if your input has changed, then so too should the agreement.

Hope this helps.

Shaun

[six_wax]

Artist is reasonable, and values my input enough to have the discussion, but doesn't have the cash to frontload the deal with higher fees.

Again, I'd like to come up with some sort of arrangement that allowed everybody to benefit from other modes of exploitation instead of relying on record sales...

Frankly, I'm suprised other folks aren't thinking about this.

[abit]

Originally Posted by six_wax

Artist is reasonable, and values my input enough to have the discussion, but doesn't have the cash to frontload the deal with higher fees.

Again, I'd like to come up with some sort of arrangement that allowed everybody to benefit from other modes of exploitation instead of relying on record sales...

Frankly, I'm suprised other folks aren't thinking about this.

The agreement always a good thing 2do, U a 100% right.
Lawyer would be a good idea.

In this situation it could be something like:
if SONG get placed to TV then residuals blah blah
if publishing goes like ...than blah
in case of a record
in case of a band
and if etc
I would take something upfront from the guy though.
Something..
If he likes what U do for him..
And U can include, that IF blah blah then he'll get refund
for his advance money(amount), cuz at the moment U just have to pay your rent.

Something like this +-
Right amount of self respect is always a good thing.
U can find some basic agreements on line and work from there.

[tzujan]

My thought on asking for publishing/co-publishing is it should be easy to get from the artist, and is not asking too much, if you have a strong licensing track record and a solid past financial performance that you could point to. If not, it is a bit of a sham to ask for publishing because you think you might be able to get something happening. A solution in both scenarios would be to give the artist a reversion clause so their publishing is not tied up if you can’t perform. One idea would be if after three years you can't get a pre-determined amount of licensing then the publishing reverts to the artist. However, if you can get some steady licensing then contract automatically renews or becomes permanent. Also, one thing to keep in mind, if you don’t buy the publishing with upfront cash, not services, any high-powered music attorney would have you and your production deal for lunch, especially if your licensing operation is small and lacks the track record (not to mention the money and time to fight back).

Also, make sure you control the publishing so you don’t have to get their approval of deals. Sometimes in this case you may put in a clause that you don’t need their approval or consultation unless the scene, or use, conflicts with certain guidelines (nudity, violence, specific product, what ever offends the artist).

Cheers

[Bounce]

I do a LOT of licensing of music I compose and tracks I produce and/or cowrite with/for other artists. You may know a lot of this but I'll babble on for some who may not...

There are so many scenarios that come up based on your role and what version of the master is used (vocal only/vocal with instrumental/instrumental only that you played everything on/remix, yada yada, instrumentals versions are very often used in TV). If you are not receiving your normal rate for the tasks you are performing, you need a fair agreement based on the often used "pay X now and it's X rate, pay later and its Y rate which is often more than X" scale.

For those who may not know, there are at least 4 basic monies to possibly be received from tv/film licensing:

MASTER SYNC LICENSE FEE- X amount of dollars paid for the use of YOUR MASTER RECORDING OF THE SONG (this applies to the recording you made only, not the song itself. you own or co-own the master and must be paid for the use of it, kind of like a rental for it's use in synchronization with video)

SONG LICENSE- Y amount of dollars (often equal to the master license fee) for the use of the SONG itself. This refers to someone hearing your song on that show even if it's not your recording (Let's say Jack Bauer is singing your song "boodly boodly, shake your noodly" on 24 while doing the dishes)

These above fees are usually paid once for the use of your song and/or recording of it on that episode. If another episode wants to use it, the fee must be paid again.

Now, the following are residual income (meaning you keep getting paid every time that episode runs or reruns. yippee!):

PERFORMANCE ROYALTIES:

These 2 amounts are usually the same.

THE WRITER'S SHARE- The writer(s) of the song receive this payment usually quarterly from ASCAP/BMI/SESAC, etc based on how many times that episode ran and the amount of time your music was played.

THE PUBLISHER'S SHARE- The publishing company that gets you these song/master placements often receives part or all of this. If you are your own publishing company and can place your own songs/masters, then you can make twice the income. This means you handle all the contacts/cue sheets/collections, etc.


Everything (full version) I produce contains the creative work of both the artist and myself, therefore the masters are owned 50/50. Depending on the viability of the artist and the specific situation, that translates to 50/50 of the master license fees obtained through license of our recording. Income received from the SONG license fees belong to the writer and the publisher (usually 50/50, called 100/100 in percentages to each). If your artist wishes to divide some publishing based on your deferred payment, so be it. You, of course, must both decide what you feel is ethical. If I'm doing something totally on spec and I wrote the instrumental and the instrumental version is used, I am the one receiving publishing and licensing on that version (if the instrumental was arranged around the artist's melody, we would split the master license fees and the artist/writer receives the writer's share). There are so many scenarios being used today and I've had so many new contracts come up for different uses but I think its fair that if you do everything on spec that you work out a deal that both of you are comfortable with that will compensate you for your (time in lieu of money) investment. I say in that case 50/50 on the Master and publishing would be split based on who wrote or contributed to the writing (not arrangement) of the song.

I also get production points on sales of the recording, of course, and have an override of 1% if my recording gets the deal but the label doesn't use my recording (3 songs or more), yada yada.

Hope this helps someone :-)

[Jules]

Originally Posted by six_wax

I'm working with a songwriter/artist who can't keep a band together, which means that the record I'm currently producing will probably NOT have an opportunity to get signed, and will probably NOT have any real promotional support... Basically, I expect the points I earn on the record will be meaningless.

However, the songs are reasonably strong. I feel that we might be able to get the SRs placed in film/TV/video-games, and that the songs (which I'm investing substantial creative capital in) might have some life after the band's inevitable demise...

I'm trying to figure out how to structure the production agreement to allow me to benefit from licensing and publishing downstream, in light of the fact that "points" won't be worth diddly. Any suggestions?

As always, thanks for sharing your saavy and wisdom!

Get the songwriter to assign you a share of copywrite.
You can make your share a 'non controlling' share (so you cant veto any deals he may find) if that make the artist or his lawyer any happier..

Dont forget, 'band style material' is very hard to place - as bands... usually write thier own..

[doorknocker]

Originally Posted by six_wax

I'm trying to figure out how to structure the production agreement to allow me to benefit from licensing and publishing downstream, in light of the fact that "points" won't be worth diddly. Any suggestions?

It seems to me that you're having some terms mixed up.

If you're having 'substantial creative input' then you might get songwriting or at least arranging credits which therefore will let you benefit from all royalties collected eventually. I can only tell how this is handled here in Switzerland: It doesn't matter if you're co-writing or arranging, you just make a split concerning all credits. If I'm credited as arranger then 15% of the royalties is standard here. So you'd get your share no matter who performs the song or what labels's gonna release it.

If it's not a paid job then I would retain ownership of the master 'tapes'. After all that's what an artist is paying a studio for: To make a recording AND to have all rights being handed over as far as the eventual use of said recordings is concerned.
Here publishing might come into play but unless you're really willing and able to set up a publishing company I would't do it. Remember that as a co-writer/arranger the artist will need your agreement before he can sign ANY deal. If the artist might consider foolishly handing over most of the publishing to a company you can still just say no, as you're co-owner of the copyright (no matter how the split is done, like say 75% songwriter/15% arranger (you)

I would still insist on producer points (2-5% is standard). You never know what will happen eventually but if you retain ownership of the 'tapes' then that obviously can be written down later.

And in the end, should things get moving, there's only one thing you can do:
GET A GOOD LAWYER!

[Jules]

Here attached is a sample ageement.

WARNING:
1) DO NOT USE THIS AGREEMENT - it is not for use, was designed for UK law and is made available here for casual reference only
2) ALWAYS CONSULT A PROFESSSIONAL MUSIC INDUSTRY LAWYER FIRST

[tomwehrle]

Originally Posted by Bounce

Let's say Jack Bauer is singing your song "boodly boodly, shake your noodly" on 24 while doing the dishes

I dont mean to sidetrack this, but personally, if Jack Bauer was singing one of my songs while doing the dishes on 24, I think all my goals in life would come to rest, I could die a happy man!

[Mike Caffrey]

Originally Posted by six_wax

Artist is reasonable, and values my input enough to have the discussion, but doesn't have the cash to frontload the deal with higher fees.

Again, I'd like to come up with some sort of arrangement that allowed everybody to benefit from other modes of exploitation instead of relying on record sales...

Frankly, I'm suprised other folks aren't thinking about this.

I thiknk about this all the time and do deals like this all the time. There are too many options and then when it comes down to the agreement, personailties and egos involved, so every deal is different.

You can ask for partial or compelete ownership of the masters or publishing or both.

You could also assign a value on the production work and then have a certain percentage of an licensing or other deals go towards paying that back. Maybe they pay you 50% of every deal until they've paid off your "loan". Maybe it's 100% or intbetween. Maybe the value is your hourly rate times the number of hours you worked. Maybe it's plus 10%/year or maybe it's double or triple to reflect the risk taken as a spec deal.

It's whatever you want and they agree to.

[six_wax]

Some great replies, thanks very much for the suggestions!

Yep, there's definitely a large number of possible ways to arrange things, I was just hoping to get a few starting points for the discussion from some folks with some more experience in drawing up agreements...

Any other pointers? I'd love to hear them!