ESSENTIAL AGREEMENTS TO KNOW BEFORE YOU RECORD
This article is the fourth of a six-part series. The series is meant as a legal checklist for musicians as they plan to release their music. In this fourth article, I explain some of the agreements you should consider prior to recording music (note I discussed band agreements in my prior article). In this article you will learn:
The Default Rule for Joint Works
Split Sheets and Collaboration Agreements (and the difference between them);
Work Made for Hire and Side Artist Agreements;
Please make a note! Every explanation of law should start with “With some exceptions.” There are many exceptions and distinctions that exist, and it is far too burdensome to explain each one. It is important to know the basics so you know when legal consequences exist, but it’s also important to hire a lawyer to guide you through the exceptions and distinctions.
The Default Rule for “Joint Works”
You might remember my very brief discussion of joint works in my second article in this series. Having a general understanding of the rule is important prior to considering the agreements I discuss below.
Definition – The definition of a “joint work” is a work (i.e. a song) prepared by two or more individuals with the intention their separate contributions me merged into a single work. The intention of the parties is essential. The parties are known as “joint authors.”
Effect of Joint Work – It’s important to know that the creation of a joint work creates one single work that cannot be separated again. It is like mixing the yolk with the egg white. Once it’s done, there is no way to separate them again. Keep this in mind when you contribute your lyrics to another’s music. Those lyrics can’t be taken out and used anywhere else again.
Default Rights of a Joint Author – Unless otherwise agreed in writing (with the agreements explained below), each joint author is considered an equal percentage owner, regardless of how much they actually contributed. Each joint author is entitled to issue non-exclusive licenses without the consent of the other joint authors, so long as they pay the other joint authors their proper share.
Scenario – You write vocals and a producer creates the underlying music that is then joined into a single sound recording. Without an agreement, you are equal owners. The producer then issues a license to another producer to create a remix (which is considered a “derivative work” as explained in my Copyright 101 article). The producer doesn’t need your consent before allowing the third party to create the remix.
Split Sheets vs. Collaboration Agreements
Split Sheets - The split sheet is your most basic agreement, and it covers publishing (i.e. songwriting) royalties derived from the composition of a song. It’s common that everyone splits evenly (per the default rules above), but other splits can be agreed to by the parties.
Collaboration Agreement – What’s missing from the split sheet is (1) if only one music creator should be entitled to administrating the copyright (i.e. issuing licenses) and (2) it does not address royalties if a sound recording (composition) is created. A collaboration agreement can have a split sheet, but can also address these major points.
Scenario – You bring in another writer to assist with a small piece of the song. The split sheet is agreed upon where the other songwriter gets 25%. However, you want to be the only individual to administer the copyright because it is primarily your song. Without a collaboration agreement, the other songwriter can still issue non-exclusive licenses without your consent.
Producer Agreements are not much different than collaboration agreements, but they address the specific scenario when a producer is getting “points” (i.e. a percentage of the royalties) on a song. Producer agreements don’t have any type of industry standard, though different genres have different expectations.
For example, pop and hip hop producers are considered songwriters in most scenarios because they are producing the underlying music in the song. They often take a percentage of songwriting and points on the masters. However, if you’re a rock band hiring a producer simply to record your songs, you likely won’t consider the producer a songwriter, nor will you want to give the producer points. Instead, you will want them to sign “work made for hire” agreement explained below. This isn’t always the case though, when a major rock producer is involved they will often take points on songs and will also require a large upfront fee.
When negotiating terms, regardless of genre, consider (1) the upfront cost, (2) the contribution to the underlying music, (3) the experience/reputation of the producer and (4) how many percentage points the producer is seeking. You should put weight on all of these factors when negotiating your deal terms.
Work Made for Hire and Side Artist Agreements
When you are simply paying someone (or the person is offering to contribute for free) to contribute to your song in some way, and you have no intention in giving them ownership and/or royalties, then you will want that individual signing a “work made for hire agreement.” This agreement is used to avoid any dispute in the future that an individual should be considered a “joint author” of a song.
Scenario - You write a song on your own (the composition). You hire a producer and head to the studio to record your song. While you’re recording, the producer makes several suggestions that change some essential aspects of the song. The song is cut and released without anything signed. The producer may try to claim he/she contributed enough to the sound recording to take a share of ownership. If he didn’t’ sign anything he might claim he is a joint author (see default rule above) and seek royalties.
Now in reality, most producers would not do this because it would ruin their reputation. But in order to avoid the risk, get your producer to sign a work made for hire agreement.
In a similar vein, a side artist agreement is a term used for “work made for hire agreements” for musicians you ask to contribute in your sound recording (i.e. backup vocalist, sessions musicians, etc.). The side artist could try to make the same claim as the producer did in the scenario above. Therefore, everyone recording on your track should sign something saying they do not take any ownership, regardless of whether they’re getting paid or not.
Colin is the founder of Whiskey Ghost Entertainment Law based in Nashville, TN. Colin has represented independent musicians, record labels and publishers with a wide array of representation including the drafting, review and negotiation of record/publishing deals, distribution and band agreements. He has also assisted in the formation of LLC’s, trademark registration and much more. If you have a legal question, please don’t hesitate to email Colin at firstname.lastname@example.org or call him at 615-721-2233.
This article does not create an attorney-client relationship between you and me. Your use of this website is intended for general information purposes only and is not legal advice or a substitute for legal counsel. You should not act upon any information contained on this website without seeking professional counsel, licensed to practice in your jurisdiction for a particular problem.