Here we compile and analyse information about the type of contracts that studio producers and sound engineers are likely to require as part of their work. Our objective is to clarify when and under which circumstances sound engineers are entitled to ownership of copyright and when a one-off fee will suffice.
The Session Musician Contract
Generally, a session musician will be engaged in the making of a record by a producer or a sound engineer. They, as professional musicians, provide instrumental or vocal performance on a track that the producer or songwriter has composed and arranged, and when the songwriter or producer is unable to perform to the standard a session musician is able to.
In the event the song they performed on becomes a hit and starts generating considerable income,
a session musician may feel they are entitled to more than the fee they have been paid for their studio work
To protect the musician and the producer - and to set the record straight for all parties involved in the making of a record - it is a good idea to draft and sign a Session Musician Contract.
In its most basic and common form the session musician agreement will list:
• the name of the songs the session musician performed in;
• a fee payable to the session musician that is often a full and final remuneration for the work carried out by the session musician;
• a section explaining that all the copyright in the recordings and the underlying composition created during the session and paid for will be owned by the party engaging the session musician. Said party can be an artist, a record label or a producer. This section will also state that the party commissioning the recording and paying for the performance will have the right to use the end result and derivatives in whatever manner they may wish, including: selling, broadcasting and editing.
Session musician contracts fall under the category of ‘contracts for services’ (also known as ‘work for hire contract’ in the US) meaning that everything created as part of the performance of said contract belongs - from inception to final form - to the party commissioning and making the payment. The party being paid to perform the tasks described in the contract will have no claim on the ownership of copyright or any related intellectual property rights created as part of their musical performance.
The key to having a session musician agreement is that a sufficient payment ought to be made from producer, label or artist to the session musician(s).
Click here for a Session Musician template from our web-store.
The Music Composition and Recording Service Agreement
This contract is very useful for sound engineers that work as producers of music for adverts, jingles, films and TV programs. It also falls under the category or ‘contracts for services’ as explained above in the ‘session musician contracts’ section.
For work produced under these terms, a flat fee will often be payable to the producer as full and final remuneration for the satisfactory completion by a producer of work commissioned by a company that requires musical content for use in media productions (i.e., film, TV and radio productions). All possible rights in the recordings, compositions and derivatives at any stage of completion will be the property of the party commissioning the making of the musical content.
As in any producer contract, this agreement will include a detailed description of the services provided by the producer and a timeline or schedule for delivery of the material.
Sound engineers working under the terms of this type contract will earn a flat fee and nothing else regardless of whether the music they made is used for a small company internal video or in a worldwide distributed film or Netflix or HBO broadcasted TV series. Therefore, negotiate a substantial fee and don´t undersell your work.
Click here for a Music Composition and Recording Service Contract from our web-store.
The Sample Clearance Agreement
More commonly in genres such as electronic music and hip hop, samples (i.e. sections of someone else’s song) may be added to a song. The sample may be brought in to the studio by an artist or perhaps suggested by the sound engineer acting as a producer. It can be a short looped vocal or instrumental snippet sprinkled here and there or the whole rhythm section a song is built upon. In all cases a sample clearance must be sought both with the party that controls the recording the sample is taken from (often a record label but it can be a self-release artist) and the composition embedded in the sample (often a publisher but it can also be a self-published songwriter). Assigning responsibility for the clearing of samples is often defined in a producer or a record label contract.
Once the parties controlling the copyright in the sample (record label and publisher) have been identified, the parties must draft a contract that includes:
• the titles of the song the sample is taken from and the song the sample will be included in;
• an ‘approved usage’ section which will describe the length of the sample, how often is used in the song, any type of transformation, editing, stretching, pitch shifting the sample is subjected to;
• a ‘grant of rights’ section describing the license (often restricted to record sales and videos), whether the license is exclusive or non-exclusive, the length of the grant (often for the full length of copyright), any territory restrictions and some wording explaining that the usage of the sample will not exceed the ‘approved usage’;
• a payments section where remuneration for the use of the sample can be formulated as ‘fee only’, ‘advance and royalty’ (which will vary depending on the “approved usage”’), ‘flat rate per number or copies sold’ or a percentage of the statutory mechanical royalty rate (for clearances with publishers); and,
• a credit section where the party licensing the sample promises to mention the owner of the sampled material, where and when this is possible, in a certain manner described in the clause.
Please note that there are no compulsory licenses for the usage of sample which means that:
• The party controlling the copyright is entitled to refuse the granting of a sample license;
• no license can be obtained through collection societies (PRS, PPL, BMI, ASCAP, Sacem); and,
• every sample license must be negotiated individually with the parties controlling the copyright and usually on their own terms.
If an artist or sound engineer acting as producer wishes to circumvent the clearance of a sample recording they can produce an own version of the recording themselves (thus creating a new copyright version) or commission it with third party specializing in ‘samples replays’ i.e., sound-alikes of existing pieces of music. Please note that a license from the publishers of the songs must still be obtained for the underlying composition embedded in the sample.
Clearing a sample is a requisite and a formality that must be carried out prior to releasing a song. No artist or producer must gamble by commercially releasing and hoping the sample used will go unnoticed or the owner of the copyright will simply not bother to challenge its use. Using unauthorized samples amounts to:
• a breach of copyright in the sound recording from which the sample is taken;
• a breach of copyright of the underlying music work (the compositions);
• an unauthorized use of the artist’s performance; and/or
• a possible breach of moral rights.
Penalties for incurring on these breaches include removing the song from the commercial outlets it may have been released on, accounting profits already made to the party controlling the copyrights and paying the legal fees of the party bringing legal action against the infringing party.
As a final note on this type of agreement artist and producer are often confused as to what constitutes a sample. As a general rule, using any type of recordings made by a third party, regardless of length, constitutes sampling.
Article originally posted at: http://www.musiclawcontracts.com
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