You are the lead singer and songwriter of the alternative rock group "Spock's Brain." You and the band are about to record your self-financed CD with Johnny "Slick" Jones, the really happening producer of several top local bands. The band is so excited to be getting into the studio that no one thinks about putting anything in writing. So what's the big deal?
Possibly the loss of full ownership of the band's master tapes and a messy legal situation.
An appropriate and complete contract is essential to confirm and outline in writing the terms of the agreement between the band and the producer on the forthcoming recording project.
As a general premise, the ownership of the sound recordings would probably end up with the both the band and the producer at the time of their creation. It is well established under federal law that only those who have made original contributions to a work may claim as authors, and only authors, or those who claim through them, may be regarded as copyright owners.
It is very possible that although the band is contributing all the songs and performances, the producer would be deemed to have made an original contribution to the sound recordings. One only has to look at the work of producers ranging from Phil Spector to Daniel Lanois to know that producers can leave a personal imprint on a performer's recordings.
Therefore, absent a clear employment relationship, or an express assignment of copyright from the producer to the band, the resulting ownership of the sound recording might be in both parties.
But is a written agreement necessary for a producer to assign his rights to the band?
The Copyright Act provides that a copyright may be "assigned, granted, or mortgaged" but that this can be done only "by an instrument signed in writing by the proprietor", (see also Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345 (N.D. Cal 1987), aff'd, 984 F. 2d 1524 (9th Cir. 1993), rev'd on other grounds, 114 S. Ct. 1023 (1994)).
So the answer is usually YES.
What needs to go in the agreement.
First, identify the "term" of the agreement, i.e. the duration of the parties' commitment and services. The term should continue until the master recordings are completed to the band's satisfaction or upon written notice by either party.
Generally, the band will pay all costs for the recording. This includes everything from studio time to equipment rental. If producer is supplying any equipment or instruments, it should be determined if there will be additional charges.
Most important (to the band) in any Producer Agreement is a provision stating that the band shall retain the entire worldwide right, title and interest in the master recordings and compositions and the results and proceeds of producer's services, as an employee for hire.
In addition, it is prudent to state that "[a]lternatively, Producer grants to Artist the entire worldwide right, title and interest derived from Producer, including, without limitation, the copyright, in and to the Master(s) and Compositions therein."
What those two phrases combined say, in plain English, is that 1)
the producer is an employee for hire and thus whatever he/she
contributes to the recordings/compositions is a work for hire owned by
the band and 2) even if the producer is not found by a court to be an
employee for hire, the producer still grants his rights in his/her work
to the band.
The only exception to this would be in connection with any compositions actually co-composed in whole or in part by both of parties. In this event, the credit and copyright ownership of the any such composition(s) should be "allocated in a manner which shall reflect the actual input of the parties or as otherwise agreed in writing by the parties."
It is usually a good idea to have mutual and reciprocal warranties and indemnifications stating that no materials, ideas or other properties furnished by either party and used in connection with the recording will violate or infringe upon the rights of any third party. This is especially important in situations where sampling is involved.
Finally, the issue of compensation varies from situation to situation, with one factor being the relative clout of the parties.
In any event, most likely, if the band is not signed to a label, producer will be looking for an
upfront fee. On the other hand, if the band has a track record of selling many units at their gigs or on consignment at record stores, then some kind of percentage of sales might be appropriate and acceptable to both parties.
In many cases, the agreement usually provides that the producer will receive appropriate credit on the jackets, labels or liner notes of all CD's and tapes embodying the sound recordings.
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