More Questions for Artists: Record Producer Agreements, Part 9: Grant of Rights–Joint Authorship Issues

Please note: This is an installment in a multi-part post.  Each post has information relvant to prior posts, so until we get to the “Final” there will be more information to come. See also Twenty Questions for New Artists: Record Producer Agreements, Part 1, Part 2, Part 3, Part 4, Part 5. Part 6 , Part 7 and Part 8.  Watch this space for futher installments, or subscribe to the RSS feed.  A post with all the current parts in one post is available here, and see also “Artist Management Agreements” on the Semaphore Music blog.

14.  Grant of Rights-Joint Authorship Issues

There are good reasons for U.S. based artists to engage the producer to render services as an independent contractor creating a “work made for hire” under the U.S. Copyright Act (with the back up assignment provision if “work for hire” status fails.  (If you live outside the U.S., you should consult your national laws.)  This is an important distinction for a couple of reasons: first, the U.S. copyright law distinguishes between works made by authors that authors may license or assign, and works that are from inception created under an employment relationship or under a “special commission”.  The work for hire status has some benefits and requires some special drafting in order to capture the rights.  U.S. Copyright Office “circular” Number 9 on this subject is well written in simple language (a Copyright Office “circular” is a short handout from the Copyright Office that is designed to educate the public about particular issues in the U.S. Copyright Act.)  The coming battle over work for hire status in the context of termination rights is beyond the scope of this post, but highlights why the standard back up clause is important (if found not a work for hire then assignment).

For reasons that frankly escape me, some artists have an issue with referring to anyone as their employee and view everyone involved in a recording project as a “partner.”  Of all the words that one could choose to use in this context, “partner” is a very unfortunate choice from a legal point of view, because “partner” has an actual legal meaning.  A simple example–was it your intention to allow your “partner” to incur debts in your name?  Another and more apt—was it your intention to co-own your recordings—the ones you paid for and perform on—with your producer?

This raises the issue of joint authorship.  Here’s an example of why an artist would want to avoid an implication that the producer is a joint author:

A producer developed an artist for a period of years and had a rudimentary written agreement that provided that the producer was to be paid a bonus if the artist was signed using the producer’s recordings. The band acknowledged that the producer was actively participating in the creation of the sound recordings and co-wrote the songs. The producer’s share of the songs was not disputed.

The band signed to a major record company (and actually became a multiplatinum artist). No one told the producer that the band was signed until he read it in Billboard. The band’s lawyer refused to pay the signing bonus. She was from New York.

The producer attempted several times to be paid and was rebuffed. This was probably due to a simple reason:  When the masters were sold to the record company, the artist’s lawyer failed to disclose the producer as a joint author. Not only would the artist’s lawyer not deal with the producer, but the artist’s record company also would not deal with the producer and referred him to the artist’s lawyer who would not deal with him.

The producer found a lawyer who suggested it would be a good idea to send copies of the producer’s recordings to leading producer management companies. Particularly to one producer management company that also did artist management and to which the artist was being presented by the record company.

This drew a letter, copied to the record company, from the artist’s lawyer that accused the lawyer—the lawyer—of copyright infringement for distributing copies of these jointly owned recordings. And that’s the punchline.  If the recordings are co-owned, which these recordings arguably were, the artist and producer can both issue non-exclusive licenses in the whole of the recording and each have all the rights of a copyright owner.

The producer’s lawyer responded with his own letter reminding the artist’s lawyer that the producer had the right as a joint author to distribute copies on a nonexclusive basis as one of the rights of a copyright owner of a sound recording.

Within minutes after sending that letter, the producer’s lawyer received a call from the label apologizing and wanting to know how to make this go away. The producer’s lawyer suggested a possible solution was the payment of money. That day.

The artist was then forced by its label to sign a release with the producer that included a withdrawal of the claim for copyright infringement against the producer’s lawyer “as though it had never been sent” and transferred all rights from the producer to the artist.

So if instead of being in this situation—or the rather asinine treatment of the producer’s lawyer by the unknowledgeable artist lawyer who may have been “cool” but had no idea what they were doing when it came to copyright—wouldn’t it have been better to avoid the situation altogether by having a work for hire agreement in the first place?  And maybe if your producer is not clamoring for it because his last line of defense from being taken advantage of is pulling that card?  (Or maybe that’s the plan of his wily lawyer?)