Guest post by Canadian entertainment lawyer Byron Pascoe
Whether you’re a music producer, or a performing artist working with a producer, it’s important to discuss the terms of your arrangement with each other.
While it’s better late than never to formalize the artist-producer relationship, it’s easier to start the conversation before heading into the studio, and much easier before the music generates interest and money.
What does a producer do? They generally oversee the production of the song, record the artist’s performance and produce artistically, commercially, and technically viable masters.
On one end of the spectrum of formalizing the relationship is not talking about the relationship. On the other side is a producer agreement negotiated by a music lawyer for both the producer and artist. Many people land somewhere in between. The reasons why relying on a music agreement you found online are problematic could fit an entire other blog!
One purpose of this blog is to touch on some of the relevant issues when negotiating a producer agreement.
Some of the logistics questions answered in a producer agreement are where the song will be recorded, the artist’s approval process, and the producer’s deliverables.
2. Master Recordings
Will master recordings be owned and controlled by the artist? Controlling the masters should include the exclusive rights to manufacture and distribute the masters. Also, for publishing opportunities, if a music supervisor wants to use the recording in an ad, TV series or film, the master use license (from whoever controls the master) is one of the required licenses needed to place the song.
3. Share of the Composition
What percentage, if any, is the producer entitled to the song’s copyright as the artist’s co-author of the composition? The outcome may be that the artist and producer each own a percentage of undivided interest in the copyright. Perhaps it will be 50/50 split, 80/20, or some other division, which may easily include more than two parties.
Regardless of the percentage of the composition held by an artist or producer, each of their consent is required for copyright holder decisions. As such, it may be preferable for an artist to get the producer to pre-approve in the producer agreement as much as possible instead of asking later. It may be reasonable that the producer provides the artist with the right (a mechanical licence) to reproduce their share of the composition in respect of the commercial exploitation of the master, featuring the artist performing it, in return for their pro-rata share of the mechanical royalty (head to the Harry Fox Agency in the U.S. and CMRRA in Canada for more details).
What financial compensation should the producer receive, up front and on the back end from sales of the music being produced? Perhaps the producer will be entitled to a percentage of the published price to dealer (known as the PPD) for physical copies, but will be entitled to receive a percentage of the gross revenue generated from digital revenue. A related question is whether or not the producer will be paid before or once the artist has money in their pocket from sales.
Along with money, credit is key. The agreement may indicate the specific credit that the producer will receive.
6. “General” Clauses
There are a variety of standard reasonable clauses that should be considered to be in a producer agreement, including regarding the work of the artist and producer being original, and clarifying what happens should the contributions not be original.
While the artist may be given the right to license or assign their rights to others (for exploitation purposes), it’s not as reasonable that the producer be allowed to get someone else to do their job.
The producer agreement is likely either a spec deal between an unsigned artist and producer, or an agreement between a producer and the record label who signed the artist. If the former, it’s important for the artist to consider what rights the label will want held by the artist, such as control of the masters.
This blog merely highlights a few relevant concepts that are generally considered and negotiated in a producer agreement. Ideally this blog encourages artists and producers to talk about the relationship from the start.
The conversation should be more than what amount of cash is switching hands. If the conversation concludes that the artist is giving the producer a certain fee to produce a song, the expectation of the artist might be that the money covers all rights, whereas the producer might think it’s an advance against their future royalties as a co-author. The result of such incomplete discussions is far riskier if the song is successful, and if you’re doing this to be successful, you might as well plan for success.