Home > Uncategorized > More Questions for Artists: Record Producer Agreements, Part 10: Grant of Rights–Producer Songwriters

More Questions for Artists: Record Producer Agreements, Part 10: Grant of Rights–Producer Songwriters

December 5, 2011

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, Part 8 and Part 9  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.

15.  Grant of Rights—Producer Songwriters

Artists often collaborate on songs with their producers, and in many cases that producer’s songwriting ability is a significant factor in the decision to work with a producer.  In the pop or urban side of the house, the producer/songwriter may bring a fully recorded track to the artist that only requires vocals and mixing, with minimal additional production.

The question immediately arises as to who is going to get to control decisionmaking about licenses for the song and who will administer the song generally.

Splits

A threshold issue, or course, is how much of the song does each writer own, or their “contributory share.”  It is important to have a clear understanding about the splits.  While there is no rule of thumb, I have seen bands labor over this issue and come up with odd results.

For purposes of the authorship of the song, I use the rule of thumb that the difference between the song and the arrangement of the song is the difference between the lyric and melody (which I would say is what constitutes the song) and the way the lyric and melody are presented to the listener, which has more to do with the arrangement.

Another threshold issue is the distinction between the recording of the song and the song itself, each of which are separate works of authorship.

So I have heard this kind of conversation among members of the band:  Andy wrote the lyric, Bobby wrote the music, and Charlie wrote the intro drum lick.  Andy and Bobby wrote the lyric and music separately and brought the lyric and music to rehearsal, where Charlie wrote the intro drum lick while they all arranged the lyric and music that Andy and Bobby wrote.

In this real-world example, Charlie is not really entitled to 6-4/7ths of the copyright in the song.  Charlie may be entitled to one-third of the copyright in the sound recording when it is made, depending on how the band has agreed that ownership should be decided.  It is unlikely that Charlie has any share of the song, however.

So the ownership of the song in this example is probably going to be 50% Andy and 50% Bobby.

Let’s say that Andy, Bobby and Charlie now bring in Danny the producer who writes a new subchorus and rewrites the bridge.  Now what?

This is going to depend on the deal among the writers about bringing in the new writer, Danny.  Assuming that Andy and Bobby have dealt with Charlie’s issue and co-own the song equally, and also assuming that Andy and Bobby are still in the band and talking to each other, Andy and Bobby can agree among themselves that Danny should get a share of the song.

How much should Danny get?  That will be a process of negotiation.  Andy and Bobby will probably feel better about giving Danny a 25% share than a 33-1/3% share.   But Danny may say, you aren’t paying me much to produce this record, so I think I want 50% and by the way I also want to get 20% of what you are getting—which 20% bears a striking resemblance to what Danny has to pay his manager in commissions.

So you can see that it is important to get these things tied down early on, both with your band members and with the producer.

Administration

The “administration” rights for a song essentially boil down to who controls the song from a legal perspective regardless of ownership share.  For example, if a music supervisor has a use for the recording of the song by the band that the band thinks is really cool, but only pays $1,000 “all-in”, whoever administers 100% of the song can make that decision to license the track.

The tendency is to say that each writer administers their own share, which of course sounds very fair at the beginning.  But taking our example, let’s say that Danny got a one-third share of the song and has a publishing deal with a big music publishing company.

The first question is what does “all-in” mean?  It means that the total license fee including the recording and the song is $1,000.  The music supervisor could care less how it is allocated between the two, but usually wants a quick answer.  Typically, the allocation is 50/50 song and “master”.   So now the songwriters are dividing $500 among them, and the band is dividing $500 among them.

The big music publishing company is going to be looking at $167 as their share of the fee, from which they will probably take 25% as a co-publisher and maybe an administration fee—about $60 altogether.  You would think that they would say, go with God let’s make it easy.

That’s where you are probably wrong.  They will more likely say, we are the professionals and you are not, we can get you more money.  And then promptly blow the opportunity for the band.  Or better yet—the big publisher’s “policy” is that they do not license “their” songs for less than $x (fill in the blank, but more than what you are getting).  And then they blow the opportunity for the band.

If the reason you are doing the deal is not because of the money—we all know it is small potatoes—but because of the platform and the reputational value for getting the price up on future licenses, then you don’t really want these people screwing it up.

So now you are looking at an argument that may blow an opportunity—even though the big publisher only has one-third of the song and is arguing about the difference between their making $60 and maybe $160.  Or zero.  Because some of these people would rather make zero—and have you also make zero—than bend their “policy”.

This is why you have to control the administration of your songs if at all possible, and definitely control the administration of your recordings of your own songs.

Controlled Compositions/Maximum Mechanical Royalties

Artists will eventually have a contract presented to them that provides for special reduced mechanical royalty rates in the U.S. and Canada on songs they record.  (See our iTunes podcast with David Basskin of CMRRA for a more detailed explanation of this.)  You will have some flexibility on these terms, but not much.  You should get your producer to agree to take the terms of your controlled compositions or maximum mechanical royalty provisions for any songs he writes because the rates are going to apply, regardless.  If the producer is a superstar, you’re going to have a fight on this, but there aren’t that many of those, so most of the time it should be a pass through to the producer of whatever the artist gets.

This is another place where the big publishing company administrator can screw things up for the band.  It’s going to be especially true of the royalty free uses, like iTunes download of the week, for example, that you would be thrilled to get.  If you don’t have this tied down, though, the big publisher could blow these opportunities for you because of their “policy” about no free licenses, for example.

Yes, we all know free is bad, yes we all know money is tight, but no that doesn’t mean you never give it away to build an audience.  It’s easy to sit around conferences and say “it’s hard to compete with free,” but until you’ve actually tried to compete with “free,” you have no idea how hard it really is.

The Vault

It is pretty common for pop or urban producers to come to an artist with a nearly completed track of a song that the producer has written.  If the artist accepts the song and recording, then the artist may start working on the track or complete it.  For whatever reason, the artist may not include that track in their initial releases.

The question then arises as to what happens to that track if it is not released in a certain time, and also what happens to the song.  The producer may have a different artist who wants to record the track and would like to replace the vocals with the new artist who will release the recording.  The producer/writer will be reluctant to put an infinite hold on the song, particularly if they had already produced the track before the artist came along.

We will deal with the recording side of what happens in this situation later in this article, but from the songwriting perspective, the artist has to be careful that any songwriting contribution is documented.  For example, the producer may bring the track with no lyric, some lyric, or complete lyric that the artist rewrites either slightly or a lot or not at all.   Like pregnancy, you can’t be “slightly” a writer, so if the artist contributes anything to that song—as opposed to just recording the song—that contribution can live on regardless of whether the artist’s recording is ever released.  But that requires a change in the splits.

The typical use of a vault track involves wiping the artist’s performance and starting over with a new vocal—the question is, starting over with which version of the song.

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