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 An Example of a
Producer's Contract
by Christopher Knab ,
June 2011
Back to The Academy
For a while now I have been getting questions about what is in
a typical Producer Contract. So here, I will quote sections from a producer's contract
that I have seen.
But before I post the first section of it.
PLEASE REMEMBER that ANY contract is open to negotiations, and I am NOT
an Entertainment Law Attorney (but I know a few.)
Very few
contracts in the music industry are the same for everyone, and a
Producers Agreement is no exception, so without further ado here is a
sample Producer's Agreement for you to read, and perhaps fall
asleep to.
1. GRANT OF RIGHTS
Producer and Artist agree
that each Master, and all derivatives thereof (but not including the
underlying compositions), (collectively "Works") shall constitute "works
made for hire" as that term is defined under 17 U.S.C. sec. 101, and
the author and owner of the Works is deemed to be Artist (or its
authorized designee).
In any event, Producer does hereby assign,
transfer and set over to Artist, its successors and assigns, one hundred
percent (100%) of Artist's entire right, title and interest, including
without limitation any and all so-called "moral rights," in and to the
Works, together with all copyrights therein and thereto throughout the
world and any and all renewals and extensions of copyright therein now
known or hereafter existing under any law, rule, statute and/or
regulation now known or hereafter enacted or promulgated, and including
without limitation the exclusive right to administer such copyrights.
The
Works shall be the sole and exclusive property of Artist in perpetuity,
free from any claim whatsoever by Producer. Producer will execute and
deliver to Artist such instruments of transfer and other documents
regarding the rights of Artist in the Works as Artist may reasonably
request to carry out the purposes of this agreement and Producer will
sign any and all necessary documents to effectuate the disposition of
same.
Artist shall have the unlimited, perpetual right to
exploit the Works for all purposes by any means or media now or
hereafter devised, and in any form whatsoever, under any trademarks,
trade names and labels with no additional compensation payable to
Producer other than as stated herein, it being understood that Producer
shall have the right to grant and negotiate and grant all licenses
sought and obtained for derivative works.
Neither the expiration
nor termination of the agreement pursuant to which the Works were
produced shall affect the ownership by Artist of the Works it being
understood, however, that the Recordings shall remain the sole and
exclusive property of Producer until all monies, as mentioned below in
paragraph 3(a), due Producer by Artist are received by Producer."
2. RECORDING SESSIONS
Recording sessions for the Masters shall be conducted by Producer
under this Agreement at such times and places as shall be mutually
designated by Artist and Producer. Recording sessions for the Master
will be conducted by Artist at Artist’s sole cost and expense.
Artist shall pay all Recording Costs (“Costs”) of the Masters
recorded hereunder as and when due. Producer shall deliver to Artist
upon completion, a final two-track equalized tape copy, CDR or
digital audio tape (DAT)) commercially satisfactory to Artist for
use on a record (“Record”). Each Master shall embody the performance
by Artist of a single musical composition designated by the Artist,
and shall be subject to Producers final approval as to selection of
Artist, technical satisfaction for the manufacture, broadcast and
sale of phono records.
3. COMPENSATION
(a) In consideration for Producer's services hereunder, Artist
agrees to pay Producer a minimum of One Thousand Dollars ($1000.00)
as recording fee per song or track to be created, produced and
recorded by Producer hereunder, Half of which, Five-Hundred Dollars
(500.00), to be paid before execution hereof and the remaining
Five-Hundred Dollars (500.00) to be paid to Producer at the time of
completion of project, OR, the full amount to be paid before
execution hereof, whichever method the Artist chooses.
(b) In addition to the fee set forth in paragraph 3a. above,
Producer shall also receive an amount equal to Three percent (3%) of
the Suggested Retail List Price (SRLP) of any Record in which the
Master(s) is/are embodied on divided by a fraction, the numerator of
which shall be the number of Masters produced by Producer appearing
on any Record embodying the Masters and the denominator of which
shall be the total the number of all royalty bearing masters
appearing on the Record.
(c) Notwithstanding the foregoing, Producer's royalties payable
hereunder shall be calculated in the same manner as Artist's
royalties are calculated under Artist’s recording agreement
(“Recording Agreement”) with Artist’s record Artist (“Record
Artist”) with respect to the Master(s) recorded hereunder and
released by Record Artist. Producer’s royalties shall be subject to
the same reductions, deductions, exclusions and category variations
as is Artist’s royalties under Artist's Recording Agreement with
Record Artist; and shall be paid at the same time as Artist is paid
by Record Artist pursuant to the Recording Agreement. Producer shall
not be paid any monies in respect of any exploitation of the Master
for which Artist is not paid royalties, accordingly, no royalties
shall be payable to Producer hereunder unless and until all Advances
under this Agreement or Artist’s Recording Agreement or third party
recording or distribution agreement, shall have been recouped. As
used herein, the term "Advances" shall refer to the following sums
but only to the extent such sums are recoupable by me or a royalty
paying third party: (a) all recording and mastering costs incurred
with respect to the Master, (b) all costs incurred with respect to
production of the audio-visual recordings with respect to the
master, (c) all artwork costs associated with the Master; (d) all
costs for so-called tour support and (e) payments to Producer, and
(f) any other costs incurred under this Agreement for recording and
manufacturing, promoting, creating and selling the Master.
(d) Whenever the Master(s) produced hereunder are coupled with other
master recordings on phonograph records or other devices, Producer's
royalty rate under this Agreement shall be computed by multiplying
our otherwise applicable royalty rate by a fraction, the numerator
of which is the sum of selections contained on the Master(s) and a
denominator of which is the total number of master including the
Master(s) embodied in the record or other device."
4. OVERRIDE ROYALTY
(a) In the event Producer is not engaged
to produce the Artist’s Masters for Record Artist, and one (l) or more
of the Recordings (even though edited or re-mixed) is commercially
released by Record Artist, Producer shall be entitled to a three (3%)
percent royalty override of the suggested retail list price ("SRLP") of
records embodying any Artist Recording hereunder and sold through normal
retail channels throughout the United States ("USNRC") and not
returned. Such royalty shall be paid on all singles and for LP’s shall
be computed on a pro-rated basis, with the numerator to be the number of
Artist Recordings and the denominator to be the total number of masters
on the record. Producer shall also be entitled to receive applicable
credit for the Recording(s) embodied in said record.
(b) Artist
agrees to use it’s best efforts to cause Record Artist to pay all
royalties due to Producer hereunder directly to Producer and Artist
agrees to execute letters of direction and any and all other instruments
necessary to effectuate same.
5. NO ADDITIONAL COMPENSATION; ACCREDITATION
(a)
The compensation set forth herein is full and complete payment
to Producer for all services and rights in respect of the Work. No
additional sums will be due to Producer or any other entity as a result
of the exploitation of the Works.
(b) As additional
consideration, Artist shall use it’s best efforts to have Producer
credited as a "producer" and shall give Producer appropriate production
and songwriting credit on all compact discs, record and cassette labels
or any other record configuration manufactured which is now known or
created in the future that embodies the Masters created hereunder and on
all cover liner notes Artisting any records containing the Masters and
on the front and/or back cover of any Album listing the Masters and
other musician credits. Such credit shall be in substantial form:
"Produced by________________________.”. Artist shall use its best
efforts to ensure that Record Artist properly credits Producer and
Artist shall check all proofs for accuracy of credits, and shall use its
best efforts to cause Record Artist releasing the record to cure any
mistakes regarding Producer's credit on the next print run of such
materials. If Artist fails to comply with this clause in any instances
or sole obligation to Producer by reason of such failure Producer's sole
remedy is to have Artist add the appropriate credit. Artist shall
provide Producer with five (5) copies of the completed Records within
thirty (30) days after manufacture of the Record to review for accuracy.
6. SONGWRITING; CONTROLLED COMPOSITIONS
(a)
Producer shall be considered the author of the music recorded on the
Masters recorded hereunder which are written or composed by Producer, in
whole or in part, alone or in collaboration with Artist or with others.
Such ownership percentage shall be accorded to Producer in accordance
with Producer's percentage of authorship based on the copyright laws of
the United States and as set forth on Schedule “A” attached hereto.
Appropriate credit as a song writer and author of the music showing
author's performance right society affiliation shall be given to
Producer based on the songs produced and created under this Agreement.
If Producer is the sole writer of the music produced under this
Agreement, then Producer shall have the right to prepare and file
copyright registration forms for the music produced under this
Agreement. Producer shall provide Artist with a copy of the filed
registration form upon receipt by Producer of the filed form from the
Copyright Office. Artist shall have the right to incorporate lyrics with
the music created hereunder to create a new song (“New Song”) and
Artist shall have the right to give the New Song a new title and
register the New Song for copyright, providing Producer the copyright
credit in the music in the New Song as set forth in this Agreement. If
Producer contributes original lyrics to the compositions recorded, he
shall receive a pro-rata share of the songwriter credit, and associated
publishing, with any other original lyricist, and it shall receive a
pro-rata share of the songwriter credit, and associated publishing, with
any other original composer, unless all songwriters agree in writing to
another division of writer credit. Claimed percentages of authorship
for each title are set forth in Schedule A hereto. Any compositions to
which Producer contributes songwriting are referred to herein as
"Controlled Compositions”.
(b) Subject to the terms of
this agreement, Producer member hereby retains his publishing rights in
connection with his share of all compositions and Artist further grants
to producer the right to participate and be present during all
negotiations with Record Artist and/or any other person or entity with
whom Artist may enter into negotiations regarding the sale, license or
distribution of the Masters to be produced hereunder.
7. WARRANTIES AND REPRESENTATIONS
Producer and Artist hereby make the following representations and warranties:
(a)
Producer has the full right and ability to enter into this
Agreement, and is not under any disability, restriction, or prohibition
with respect to the grant of rights hereunder.
(b) Producer
warrants that the manufacture, sale, distribution, or other
exploitation of the Masters hereunder will not infringe upon or violate
any common law or statutory right of any person, firm, or corporation;
including, without limitation, contractual rights, copyrights, and
right(s) of privacy and publicity and will not constitute libel and/or
slander. The foregoing notwithstanding, Producer undertakes no
responsibility whatsoever as to any elements added to the Masters by
Artist and/or Artist, and Artist indemnifies and holds Producer harmless
for any such elements.
(c) Producer warrants that he shall
not "sample" (as that term is commonly understood in the recording
industry) any copyrighted material or sound recordings belonging to any
other person, firm, or corporation (hereinafter referred to as "Owner")
without first having notified Artist and obtaining Artist’s consent.
Artist shall have no obligation to approve the use thereof; however, if
approved, any payment in connection therewith, including any associated
legal clearance costs, shall constitute an additional recording cost and
expense and shall be borne by Artist, recoupable from royalties
hereunder. Knowledge by Artist that "samples" were used by Producer
which were not affirmatively disclosed by Producer to Artist shall
shift, in whole or in part, the liability for infringement or violation
of the rights of any third party arising from the use of any such
"sample" from Producer to Artist. At Artist’s request, Producer shall
cooperate with respect to any matters concerning "sampling" which may
arise hereunder.
8. INDEMNIFICATION
Parties
hereto shall indemnify and hold each other harmless from any and all
third party claims, liabilities, costs, losses, damages or expenses as
are actually incurred by the non-defaulting party and shall hold the
non-defaulting party, free, safe, and harmless against and from any and
all claims, suits, demands, costs, liabilities, loss, damages,
judgments, recoveries, costs, and expenses; (including, without
limitation, reasonable attorneys' fees), which may be made or brought,
paid, or incurred by reason of any breach or claim of breach of the
warranties and representations hereunder by the defaulting party, their
agents, heirs, successors, assigns and employees, which have been
reduced to final judgment; provided that prior to final judgment,
arising out of any breach of any representations or warranties of the
defaulting party contained in this agreement or any failure by
defaulting party to perform any obligations on its part to be performed
hereunder the Non-defaulting party has given the defaulting party prompt
written notice of all claims and the right to participate in the
defense with counsel of its choice at its sole expense. In no event
shall Artist be entitled to seek injunctive or any other equitable
relief for any breach or non-compliance with any provision of this
Agreement.
9. ACCOUNTING AND AUDIT
Payments and royalties
earned and payable, if any, shall be accounted for and paid to Producer
(or Producer's designee, as applicable) within thirty (30) days after
the end of each respective calendar quarter ending March 31, June 30,
September 30 and December 31, or in accordance with such accounting
period as designated pursuant to Recording and/or Distribution
Agreement, and royalties shall be paid and accounted for within thirty
(30) days after the end of each respective calendar quarter in
accordance with the terms as set forth therein. Artist shall have the
right to retain, as a reserve against subsequent charges (said reserve
not to exceed thirty (30%) percent), credits or returns (collectively
"returns"), a reasonable percentage of royalties otherwise payable
hereunder; provided that said reserved amount shall be liquidated fully
by the fourth accounting period following the period for which the
reserve was first established. Producer, or a certified public
accountant on Producer's behalf, may at Producer's cost and expense
examine Artist's books relating to the sale or other distribution of
Records hereunder solely for the purpose of verifying the accuracy of
any statement rendered, only during Artist's normal business hours and
upon reasonable written notice. Artist's books relating to any
particular royalty statement may be examined within two (2) years after
the date a statement is rendered by Artist to Producer. Artist shall
immediately pay the balance due of any understatement of royalties paid
or payable as revealed by such examination.
10.
Parties
hereto agree to save, defend, indemnify and hold each other and any of
their Artist’s, agents, heirs, successors, assigns and employees free,
safe, and harmless against and from any and all claims, suits, demands,
costs, liabilities, loss, damages, judgments, recoveries, costs, and
expenses; (including, without limitation, reasonable attorneys' fees),
which may be made or brought, paid, or incurred by reason of any breach
or claim of breach of defaulting Artist's warranties and representations
hereunder which have been reduced to final judgment; provided that
prior to final judgment, Artist shall be entitled to withhold royalties
otherwise payable in an amount equal to Artist's reasonably estimated
exposure in connection with such claimed breach by Producer, and
provided further that if no legal action is commenced in connection with
such claim of breach within one (1) year after notification to Artist
of such claim, then Artist shall release all royalties so withheld. As
an alternative to the withholding of royalties, Producer shall be
entitled to post a bond for the benefit of Artist in an amount equal to
Artist's reasonably estimated exposure. Parties shall be entitled to
designate any defense attorneys engaged in connection with any such
claim or action.
11. SEVERABILITY
If any provision
of this Agreement shall, for any reason be illegal or unenforceable,
then and in such event, the same shall not affect the validity of
remaining portions and provisions of the Agreement.
12. RELATIONSHIP OF PARTIES
Nothing
contained herein shall be construed to constitute a partnership or
joint venture between the parties hereto, and neither Artist shall
become bound by any representation, act, or omission of the other.
13. CONSTRUCTION
This
Agreement shall be deemed entered into within the State of
_______________and shall be construed in accordance with and governed by
the laws of that State and/or by U.S. federal law.
14. NOTICES
All
notices which either party may desire or be required to give hereunder,
shall be in writing and sent by certified mail postage prepaid. Notice
shall be deemed effective five (5) days after posting. (A simultaneous
transmission of all notices and statements via facsimile is
recommended.) The address of the parties for all notices, statements,
and payments shall be as first set forth above.
15. ATTORNEY'S FEES
In
the event of any controversy, claim, or dispute as to the terms of this
Agreement, or the subject matter thereof, or breach, thereof, and/or
litigation resulting there from, the prevailing party shall be entitled
to recover from the other party reasonable attorney's fees and costs
resulting there from.
16. ENTIRE UNDERSTANDING
This
Agreement sets forth the entire understanding between the parties
regarding the subject matter hereof, and cannot be modified except by
written instrument signed by the parties hereto. This agreement may be
executed in counterpart and shall have the same validity, force and
effect as if executed in whole.
17. HEADINGS
The
headings set forth herein are for convenience only and shall not be
construed as defining the terms and conditions contained hereunder or
utilized to assist in the interpretation of any ambiguity or ambiguities
contained in any of the provisions of this Agreement.
18. FUTURE DOCUMENTS
The
parties hereto agree to execute any and all further documents, which
are necessary, required or desired to make this Agreement effective and
binding upon the parties hereto and which are necessary, required or
desired for the performance of any of the terms or conditions hereof.
19. NOTICE AND CURE
(a)
If Artist fails to account for and make payments hereunder and
such failure is not cured within thirty (30) days after written notice
thereof to Artist, or if Artist fails to perform any other obligations
required of it hereunder and such failure is not cured within thirty
(30) days after written notice thereof to Artist, or in the event that
Artist shall go into liquidation, or shall go into bankruptcy or make an
assignment for the benefit of creditors, or any insolvency or
composition proceeding shall be commenced against or by Artist, then and
in any one or all of such events, this agreement shall automatically
terminate, and the Artist shall have no further rights of any kind
whatsoever in and to the Masters and/or records hereunder. In any such
event the Artist shall continue to account to Producer for royalties
and/or other sums earned in respect of records embodying the Masters
manufactured by or for the Artist prior to the date of such termination.
(b) If Artist fails to perform any obligations required of
it hereunder and such failure is not cured within thirty (30) days after
written notice thereof to Artist, then Producer shall have the right to
terminate this agreement and suspend its performance thereof. In any
such event the Artist shall continue to account to Producer for
royalties and/or other sums earned in respect of records embodying the
Masters manufactured by or for the Artist prior to the date of such
termination.
20. ASSIGNMENT
Producer may freely assign all
or any portion of Producer’s rights, duties, and obligations under this
Agreement to any other business entity established by Producer,
provided, however, that no such assignment shall result in an increase
of Producer’s fee payable by ARTIST under this Agreement, nor otherwise
result in the modification of any other material or substantive
provisions of this Agreement, absent written agreement to the contrary.
21. LEGAL REPRESENTATION
ARTIST AND PRODUCER HERETO ACKNOWLEDGE THAT EACH HAS READ AND FULLY UNDERSTAND THE CONTENTS OF THIS AGREEMENT
AND/OR
HAVE HAD THE CONTENTS FULLY EXPLAINED TO THEM. EACH HAS FURTHER BEEN
ADVISED THAT IT IS THEIR RIGHT TO HAVE THIS AGREEMENT REVIEWED AND
EXPLAINED BY AN ATTORNEY OF THEIR OWN CHOOSING AND AT THEIR OWN EXPENSE
BEFORE EXECUTING SAME; HOWEVER, ANY INDIVIDUAL'S FAILURE TO DO SO WILL
NOT AFFECT THE VALIDITY OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have accepted this Agreement on the date first set forth above.
PRODUCER: ________________________
ARTIST: ______________________________
By: _________________________________
By: ______________________________
(President) Artist____________________
Now, wasn't that fun and exciting?! I 'love' legal language...not.
Anyway
as you read this, in many cases the Producer will demand a percentage of
the royalties due from the work he/she has produced. So re-read this
section carefully...
"Artist shall have the unlimited, perpetual
right to exploit the Works for all purposes by any means or media now or
hereafter devised, and in any form whatsoever, under any trademarks,
trade names and labels with no additional compensation payable to Producer other than as stated herein,
it being understood that Producer shall have the right to grant and
negotiate and grant all licenses sought and obtained for derivative
works.
So, don't be surprised if your Producer demands more than a fee for his/her Production work. Read the legal language carefully!
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Christopher Knab is an independent music business consultant based in Seattle, Washington. He
is available for private consultations on promoting and marketing independent music, and can be reached by email at: chris@chrisknab.net
Chris Knab's book, 'Music Is Your Business'
is available from the Music Biz Academy bookstore.
Visit the FourFront Media and
Music website for more information on the business of music from
Christopher Knab.
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