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August/September 2016

by David McLaughlin

The Lawful Truth: Producer Agreements – Part 1

by David McLaughlin

The Lawful Truth: Producer Agreements – Part 1

It’s no secret that many artists wouldn’t be the household names they are today without the work of some great music producers behind them. While producers often have a low profile as far as the public is concerned, in some case the world’s best producers like Rick Rubin and Timbaland are as famous as the superstar artists and bands they work with. In this and the next edition of The Lawful Truth we’ll be taking a close look at Producer Agreements and the vital points you need to consider, whether you are a producer or an artist looking to use a producer.

Before we look at the different ways that producers can be paid for their work and what some of the more common approaches are, we’re first going to get a better understanding of what people often consider some of the ‘secondary issues’ in Producer Agreements. These issues are actually just as important as obvious things like ‘the money’ because unless the agreement covers off all of such other issues it can lead to huge uncertainty and problems, meaning that no one ever sees any money!

There is a well acknowledged tendency in the music industry for deals to move quickly, and sometimes despite everyone’s best intentions details don’t all come together until the last minute. However when it comes to a producer being arranged to work with an artist there should usually be plenty of time to make sure all the key details are worked out upfront. Despite this, you’d be amazed at how many recording projects either take place without a Producer’s Agreement, or alternatively, once the recording is finished people are still negotiating the contract. This should never be allowed to happen.

As a producer you want to make sure you have certainty in respect of the time you are devoting to the project. If you’re the artist you want to make sure you have the producer booked in for the times when you are available as well.

Without having a Producer’s Agreement in place at the outset the artist in particular runs the risk of not having certain key issues clarified upfront, such as the precise payments that have to be made to the producer. This would mean that a producer could potentially hold off their agreement on other issues vital to the artist (like assignment of copyright which we’ll discuss soon), until those things like payment terms are resolved to the producer’s satisfaction.

Copyright ownership is a key issue to clarify in any Producer Agreement. Producers contribute significantly not only to the overall sound of the recording, but in many cases also song arrangements and even basic songwriting. Due to the way copyright law works the producer will often be regarded as a joint copyright holder in the songs written as part of the recording process. This might not be a problem for some acts, however in other instances we’ve found that artists will assume that these types of services are all part of what they pay a producer for. As a consequence they think the producer shouldn’t be taking any songwriting ownership or credits.

No matter how the parties decided to handle this issue, it must be remembered that because of the way copyright law works a producer will retain any songwriting interest they may have acquired until a written agreement (e.g. a Producer Agreement) is signed by the producer and the other songwriters clarifying otherwise. So for all parties concerned, this is a key issue to address up front. The producer can then confidently contribute in the recording sessions knowing what they will receive in return, and the artist can have absolute certainty that no nasty copyright disputes will later emerge.

Another such secondary issue that’s also vital to define upfront is exactly what the producer is providing the artist. For example, does the producer’s fee include the studio hireage and what about any engineer or session musicians that the producer may bring in? Are these all the producer’s responsibility to arrange from the budget the band has agreed, or are they extra costs the artist has to pay?

If they’re extra costs you (the artist) are expected to pay, then obviously you need to spell out in the Producer Agreement that your approval is needed first. Also with session musicians it should be clearly stated who is responsible for arranging the recording releases from these musicians, so as to avoid any songwriting claims that session players may later make, if it is not the intention to provide them a songwriting percentage of the tracks they contribute to.

The Producer Agreement should clarify if the producer is expected to also mix and even, in some cases, master the recordings. Although these are all very distinct roles and on bigger budget recordings specialists would be sought for each different task, it is not unusual for a producer to assume some or all of these additional roles where the artist doesn’t want to go elsewhere for them.

Once again different producers have different strengths and provide different services, but the key thing is that if applicable, these services are clearly specified in the Producer Agreement – along with any additional fees that are payable to the producer for such services, as well as the timelines within which these extra tasks will be completed.

Having covered off some of the contract fundamentals, in the October/November issue’s edition of The Lawful Truth we’ll move on to discussing standard payment terms and rates in Producer Agreements.

Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.

David McLaughlin is a specialist music lawyer with Auckland law firm McLaughlin Law (www.mclaughlinlaw.co.nz). He can be contacted by email at david@mclaughlinlaw.co.nz or on 09 282 4599.