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Advice on Copyright and Label Issues Studio Headphones
Old 11th September 2007
  #1
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mizzle's Avatar
 

Advice on Copyright and Label Issues

Hey all,
I hoping some of you out there with more experience than I can help for a moment.

Here's the scenario:
I did work for a band (of which I was temporarily a member), including production, engineering, songwiting, and arrangement for some material that a label wants to release as an EP.
This band has a rapidly growing fan base, has been touring with well know national artists, and is getting tapped for major commercial licencing.

In regards to co-ownership of songwriting credits, I think I have a grasp, but;
I'm a wondering if someone can clarify to me what kind of agreement I should be getting into with this label. From my understanding, I have the option to sell the recordings to the label, or retain ownership and collect royalties through licencing.
Are the recording rights all dealt with through a written contract with the label, or are there other angles involved that I am not seeing?

Thanks to anyone with advice!

BTW- the people I am dealing with are rather close, personally, so at this stage the options are rather negotiable.
Old 12th September 2007
  #2
Gear Addict
 

The most likely scenario is that the label will blow you off completely. They could care less about former band members. Your friends won't rock-the-boat; instead they'll make ridiculous promises to take care of you down the road.

Remember when Lauryn Hill got sued by several musicians who claimed co-songwriting credits on "Miseducation"? That could be you.

http://www.sohh.com/articles/article.php/2227

If I were in your shoes, I'd focus solely on songwriting credit. Get your bandmates to write down (or email) who wrote what. Once you have that on paper, you're golden. It will be much easier to assert your rights then.

Production? Arranging? Engineering? Pick your battles, my friend. Not worth chasing what would amount to small potatoes.
Old 12th September 2007
  #3
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Thanks for the reply, but I believe you misread one aspect of the scenario:
I am refferring to material that has not yet been released, and I still have the masters for. The label contacted me to obtain the recordings, hence I am asking what kind of an agreement is appropriate at this point. If they do not come to an agreement, they do not get the recordings.
Old 12th September 2007
  #4
Gear Addict
 

Find an attorney who knows what the going rate is. Of course, I'm sure you already knew that.

Hope it works out in your favor.
Old 12th September 2007
  #5
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3db@1K's Avatar
 

Quote:
Originally Posted by mizzle View Post
Thanks for the reply, but I believe you misread one aspect of the scenario:
I am refferring to material that has not yet been released, and I still have the masters for. The label contacted me to obtain the recordings, hence I am asking what kind of an agreement is appropriate at this point. If they do not come to an agreement, they do not get the recordings.

They need to pay to for the masters... Now the price depends. I would say as far as an indie goes $1500 -$2000 a song maybe $5000 for a major depending on how much the tracks mean to them. Having said that I have had a label just offer me 5Gs for a whole album (11-songs) it was a small indie. Be careful here they may say thanks but no thanks we will just go record them again. Now if you played on the songs that they use you are going to get your artist royalty.

Get an entertainment lawyer to draw up a contract. They deal with this all the time. There are some basic negotiation that woud be best dealt with legal help.
Old 12th September 2007
  #6
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Bounce's Avatar
I'd say since it's still amicable with the band to draw up:

1. a collaboration agreement (which among other things defines what happens when a band member leaves the band. Even though you already have, it will define what you are entitled to) or at least solidify your co-authorship on the copyrights for the songs and recordings

2. a production agreement and define what you will receive in production royalties or an override in case they don't use your recordings and hire an outside producer (since your productions may have helped seal the deal) and any recouping of recording costs/fees

3. if you performed on the recordings adjust your contracts accordingly to accommodate performance as an artist, etc.

4. a publishing agreement with breakdowns of what percentage of the publishing each of you is entitled to on the songs

I'd say discuss these things with the band as absolutely relaxed and politely as possible and I'm sure everyone will be able to get it all worked out fairly :-)
Old 12th September 2007
  #7
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mizzle's Avatar
 

Quote:
Originally Posted by Bounce View Post
I'd say since it's still amicable with the band to draw up:

1. a collaboration agreement (which among other things defines what happens when a band member leaves the band. Even though you already have, it will define what you are entitled to) or at least solidify your co-authorship on the copyrights for the songs and recordings

2. a production agreement and define what you will receive in production royalties or an override in case they don't use your recordings and hire an outside producer (since your productions may have helped seal the deal) and any recouping of recording costs/fees

3. if you performed on the recordings adjust your contracts accordingly to accommodate performance as an artist, etc.

4. a publishing agreement with breakdowns of what percentage of the publishing each of you is entitled to on the songs

I'd say discuss these things with the band as absolutely relaxed and politely as possible and I'm sure everyone will be able to get it all worked out fairly :-)
So, tell me if this is correct:
The collaboration (partnership) agreement is with the band.
The production agreement is with the label.
The performance agreement can be made with either the band or the label.
The publishing agreement is with the songwriters (and registered with the publishing company).

Thanks for your help! I am looking to simplify this so it is fair and easy to understand for all parties.
Old 12th September 2007
  #8
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Bounce's Avatar
All of these agreements are with the band (unless there are outside songwriters in which case some of these will be with them as well). Any negotiation with the label as to masters, publishing, etc. will be done based on the existing agreement (i.e. if the label wants to negotiate for publishing, etc., they will have to negotiate that deal with the owners of the publishing- all of you). Any new agreements with the label should be done after all these are nailed down with you and the band if you are smart ;-)

Good luck!
Old 13th September 2007
  #9
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3db@1K's Avatar
 

Quote:
Originally Posted by mizzle View Post
So, tell me if this is correct:
The collaboration (partnership) agreement is with the band.
The production agreement is with the label.
The performance agreement can be made with either the band or the label.
The publishing agreement is with the songwriters (and registered with the publishing company).

Thanks for your help! I am looking to simplify this so it is fair and easy to understand for all parties.

Band has lawyer ...You have lawyer.... Their Lawyer negotiates with your Lawyer.
Old 13th September 2007
  #10
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mizzle's Avatar
 

Quote:
Originally Posted by [email protected] View Post
Band has lawyer ...You have lawyer.... Their Lawyer negotiates with your Lawyer.
With all due respect, that adds two people to the equation whose involvement can be potentially avoided. I would much rather write up a simple, legally binding agreement at our own discretion. Just saying "get a lawyer" is what can perpetuate the tensions that result in a "business as usual" philosophy. It can be a method for treating the symptoms and not the cause. Throwing lawyers into the mix indicates the presumption of discrepency (it puts both "teams" on offence), when all that may be needed is clear communication. I think there is no need to hire representation if the involved parties can communicate for themselves in a basic legal manner.

Sorry to be touchy, but it's like asking for advice on how to fix your car, and someone chimes in with "hire a mechanic". Obviously the latter is an option, but the question presupposes that I would be seeking independence from a mechanic, or lawyer.
Old 15th September 2007
  #11
Gear Maniac
 

Quote:
Originally Posted by mizzle View Post
With all due respect, that adds two people to the equation whose involvement can be potentially avoided. I would much rather write up a simple, legally binding agreement at our own discretion. Just saying "get a lawyer" is what can perpetuate the tensions that result in a "business as usual" philosophy. It can be a method for treating the symptoms and not the cause. Throwing lawyers into the mix indicates the presumption of discrepency (it puts both "teams" on offence), when all that may be needed is clear communication. I think there is no need to hire representation if the involved parties can communicate for themselves in a basic legal manner.

Sorry to be touchy, but it's like asking for advice on how to fix your car, and someone chimes in with "hire a mechanic". Obviously the latter is an option, but the question presupposes that I would be seeking independence from a mechanic, or lawyer.
I understand your situation and that the relationships between you and the other band members is good and that you require something simple but binding. But from what I understand your original question was what to do about the label. I would absolutley strongly urge you to seek legal representation in dealing with the label. If you're not absolutely sure about what you are or are not entitled to a good lawayer can give you this information and represent your best interest because I promise you they will have someone representing theirs. If you and your exbandmates have it figured out and can come to an agreement then more power to you but when it comes to the label having a good lawyer can be the difference between a happy ending or nightmare.
Best of luck!
Tom
Old 15th September 2007
  #12
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anteupaudio's Avatar
 

Quote:
Originally Posted by mizzle View Post
Just saying "get a lawyer" is what can perpetuate the tensions that result in a "business as usual" philosophy. It can be a method for treating the symptoms and not the cause. Throwing lawyers into the mix indicates the presumption of discrepency (it puts both "teams" on offence), when all that may be needed is clear communication. I think there is no need to hire representation if the involved parties can communicate for themselves in a basic legal manner.
But what happens when you're no longer just dealing with the band? What happens when they have a label and/or management company involved who decides there's a loophole in your contract (that you didn't have an attorney draw up because you thought the members of the band were your friends so they'd, obviously, do the right thing) and they no longer have to pay you for your work?

I completely and totally understand where you're coming from here. You have a relationship with the band... You don't want to look like a prick and risk the relationship... etc.. etc...

I like to think I can trust people too. I'm still in this business because I love making music and I wish I could do things on a handshake and call it a day. However, I've been in this exact same position dozens of times and I can tell you as sure as I'm sitting here typing this that I have been burnt about 90% (if not more) of the time when I've trusted people without a proper contract. Almost ALL of them were people I trusted or even considered friends before the sh*t hit the fan. It's amazing what happens when imaginary money starts to turn into real money... People (even seemingly good people) will climb the walls to cut you out of your small percent if you don't have a solid contract. In fact, I've had people try to screw me over even when there WAS a proper (and very artist friendly) contract in place..... And I'm not just talking about little indie projects, some of these were major label acts!

My best advice would be for you to have a good entertainment attorney draw up this contract for you. It'll cost you a few bucks but you can use it for future projects too so you'll get your money's worth.

The band doesn't need to get an attorney if they don't want one. All you have to do, legally, is put a line in the contract saying that they have been advised to seek legal representation.

If the people in this band are as close to you as you think they are, they should want to see you get paid for the work you did to help them get signed. Having an attorney draw this up propely will assure that the terms you and the band have agreed on will be spelled out in the contract. No more, no less.

If you're worried (in the least) that getting an attorney involved would piss the band off, I think that's all the more reason to have one involved. If they're going to play fair, they shouldn't be offended that you want to do business professionally and properly... For everybody's sake!

Just my two cents...
Old 16th September 2007
  #13
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Pohaku's Avatar
 

I'm not an entertainment lawyer, so I won't presume to give you specific advice in this area, but in my own specialty area (health care, general corporate and business transactions) I seem to spend a lot of time trying to fix relationships and deals after the fact. We often bemoan the fact that we are coming in later to fix problems -- which is usually a whole lot more expensive -- when it would have been cheaper and less of a hassle to have done the deal right up front.

As others have mentioned, it's very commonly the case that the amiable "deal" that was struck between friends back when, later blows up when the financial picture changes or third parties (like the Lables) get involved. Often, the problem with clients putting their own deal together is that they don't know what they don't know. We frequently see this with otherwise sophisticated business people who negotiate and ink their own agreements and later discover that they actually didn't understand the law pertaining to their deal, or left out significant provisions that would have protected their interests down the line.

I often tell my clients that it is fine, and often more cost efficient, for them to negotiate the primary terms of the deal themselves -- for example, who owns what, how an income stream is to shared, how long a deal will last, how disputes will be resolved, how and to whom an interest can be transferred. I'll often give them a list of major deal points that need to be resolved. Once they have done that, then I or another attorney can integrate those terms into an Agreement that states the primary deal terms as unambiguously as possible and that also includes other standard business terms for that area of business. Proper wording is important. If a contract provision is worded ambiguously and is subject to more than one interpretation, you have the potential for trouble and a dispute later on. There are lots of cases out there involving very expensive misplaced commas and semi-colons.

In addition to making sure that all the important deal points are addressed, those standard business terms can also be important. For example, if there is a dispute, which state's law will apply and where will the dispute be litigated or arbitrated? If you live in different states, there may be some advantage to one party if the law of a particular state applies. You can also require disputes to be litigated or arbitrated in a specific state -- which might be important if you live in California and other band members live in Texas.

That's just one simple example of a general deal term that should be addressed in any business agreement that could have a significant impact on how a later dispute is resolved. There are lots of other equally significant provisions that should be addressed in your Agreement. How will notice work? How can the Agreement be amended? How and to whom can a party's interest be assigned? Will any third parties have rights to enforce the Agreement? Etc, etc.

And you should assume that there will be later disputes. Agreements are and should be crafted to attempt to address and preempt potential disputes and problems. You hope that bad things won't happen, but you will be better served to prepare for the worst.

It is not at all unreasonable for everyone involved to recognize that this is a business deal among friends, but that it is still a business deal and that everyone, not just you, would be best served by making sure it is done right. It is in everyone's best interest to have a well written, unambiguous contract that clearly sets out the terms of the deal. A good lawyer will work with you to provide the legal services you need in a way that makes sense economically for you. Since the parties are friendly, it makes sense to let the parties negotiate terms rather than doing it all through lawyers. That alone will save you lots of $$$. But a good entertainment lawyer can make sure that you don't miss an important issue in the negotiation process and help you structure the Agreement so that it is as comprehensive and unambiguous as possible.
Old 16th September 2007
  #14
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Wow. Thanks for the replies! Lots of points to take into consideration. I will respond more in depth later, as I am a bit tired at the moment from studying legal forms, but I will say this: I know it is quite idealistic to say that I don't want to involve attorneys, however I am steadfast at the moment to do so. Why? Because this EP deal is small and isolated (the label is indie and run by friends) and truthfully I get to treat it as an experiment to learn from. If I **** up it will be contained by the boundaries of the contents of the EP. Now, other work I have done and material that I continue to work on, are much larger potatoes to deal with, and I very well may have to consult a lawyer in those cases as they are a bit more complex, but the EP deal coming to the table will not require lawyers on either end.
Old 17th September 2007
  #15
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An update:
I had a meeting tonight with one of the label partners. I made dinner and we went over all the issues involved in the deal, including fees and royalties. Basically, I get to write the contract from scratch, and include anything that can cover me down the line. My main concern here is with 3rd parties or other labels in the future that could potentially buy out the rights or the label itself. How do I stipulate that any buyer must either honor the royalty points, or negotiate some other suitable monetary agreement? Would I state that any future legal agreement pertaining to the tranfer of rights of the material in question must make this a clause?
I just need to make sure my rights don't vanish in such a situation.
Has anyone here written up their own contracts/agreements?
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