news category created 7 March 2014 written by Mick Glossop
Over the course of making a recording we enter into a lot of agreements, often quite informally, and many without even a clear oral agreement. Examples from my own career include things like, “If this record goes anywhere, we’re totally going to cut you in on it.” Or, “That guitar part is kind of a big riff. You should get something for that.” Or, “When we make our next record you are going to produce it, no matter what.” And my personal favorite, “We aren’t going to get too fussy with the mixes, so there won’t be a lot of revisions.” But it doesn’t even have to be this overt, as we enter into far simpler and subtler agreements all the time. Example – you’re hired to engineer a record, and you assume that you’ll get paid at the end of the session, or you mixed a record and assume that your name will be credited as such. Perhaps your client assumes that you’re responsible for the back up and archiving of the record. We make these kinds of assumptions all the time, and as long as the two (or more) parties have assumed the same things and everyone follows through on their promises, all is good in recording land. However, when we assume differently things can get a little tricky, sometimes leading to outright disputes – especially when money is involved.
Getting written agreements is a powerful way to make sure that the lines of communication are clear, and I’m writing this to encourage you to begin using written agreements right away (if you haven’t already). There are a number of reasons why getting started now is a good idea. When you do end up landing that high-profile gig where the artist’s manager is asking you about the terms of the contract, you’ll already be familiar with the basic concepts, hopefully have your own standardized contract ready to go and you’ll be able to stand your ground until you have landed a fair and solid deal. It’s way cooler to have your first contracts be with your friends than with an industry wizard, as you’ll have a chance to explore the terms without the risk of wasting someone’s time, showing professional ineptitude or worse, being swindled. Once you have gone through contract negotiations a few times, you’ll be far more prepared to deal with an industry veteran.
Another compelling reason to start getting things in writing now is that you are minimizing the possibility of misunderstandings around your projects. Misunderstandings are a real bummer and can directly affect the vibe of a project, which in turn can negatively impact the music and the possibility of working together down the road. By making sure things are clear on the business front, you can set business aside and focus on making a great record.
Some people, especially those who haven’t previously worked with written agreements, operate under the notion that talking business isn’t cool. It ruins the vibe. It shows a lack of trust. It’s square. Because of this attitude, asking to put things in writing is often an awkward moment, especially with someone you’ve already worked with. But even if people remain resistant to this conversation at first, getting things in writing almost always results in an increased trust, a sense of professionalism and a more relaxed vibe when recording. If you do have a disagreement of terms, the written agreement will often serve as a common reference point for finding resolution. You may even want to consider turning down work with people that won’t agree to put down the basic terms of your working relationship on paper. By working with contracts, it establishes you as a professional at the start of the relationship. Explain why having a clear agreement up front is important to you and offer to work with them to explain the terms and why certain aspects work in their favor. Creating mutual contract terms can and should be collaborative and non-confrontational.
As recording continues to become a predominantly freelance profession and as more artists decide to operate without the aid of record labels, setting our various agreements into writing is even more important. These days there are fewer standard practices in place to guide us, and fewer people to put things into writing on our behalf.
Where do you begin to get agreements that work? The easy answer is to get a lawyer. If you feel your career picking up momentum and don’t have a attorney, it’s a great idea to get someone you can trust on board at some point. Working with an attorney to craft a workable agreement that you can adapt for specific purposes should be viewed as a learning experience and an investment in your professional business dealings. Also, friends, colleagues and mentors might be willing to share their experiences and contracts with you. There are also a number of helpful books out there (see sidebar). But even the most cursory agreement you can cobble together on your own is better than nothing in many cases, and as I’ll explain later, even an informal email correspondence can serve to help firm things up. Whether it’s a twenty-page production contract or a quick email, the same idea applies – create a clear, readable document that you completely understand and can easily explain to others. Let’s look at some examples.
Perhaps the simplest and most potent contract is the split letter. This is a single page that simply states who the writers of a song are and their corresponding percentages of the copyright. I have split letters at every session because I never know what’s going to happen. I especially have them on hand at co-writing sessions – a must. There are two kinds of copyrights associated with recorded songs. There is a copyright in the composition (lyrics, chord changes and melody), symbolized with the ubiquitous ©. Then there is a separate, very distinct copyright for sound recordings, symbolized with (p), an old-school abbreviation for “phonogram”. A split letter spells out the agreement on the division of ownership of the copyright © in the composition between the songwriters, and is independent of any copyright regarding the recording, which is often owned by a label. If anyone ever says that they want to share the ownership of a composition with me, I mention using a split letter and ask what percentage they had in mind. I’ve grown quite comfortable with this moment, as I know that it will be far easier once we put this in writing. It’s also a lot more comfortable once royalties are generated from that copyright, as there’s usually nothing left to discuss. This simple contract helps the writers clarify the copyright for any third parties, such as labels and publishing companies who may be involved with the song down the line. The split letter typically determines what percentage of the writer’s share is registered with the performing rights societies (BMI, ASCAP, SESAC). Split letters can also be attached as an exhibit or addendum to agreements for production services.
Another common contract is the release form, essentially the opposite of a split letter. I sometimes joke about release forms, saying, “Sign here to assure that you’ll never make another penny from your involvement with this song.” It’s funny because it’s true. A release form says the person signing was doing “work for hire” and has released ownership of the performance including any claim to copyright or future compensation. These forms often include the release of any arranging, a somewhat vague term that can wander across the fuzzy border into composing. As you can see, there’s potential for murkiness here, yet it can usually be cleared up easily by using a standard release form. In the United States, federal law regarding “work for hire” agreements requires that such agreements be signed before a party renders services, so the best practice is be to get these signed before a session begins. If you’re producing, it’s a good idea to have standard “Sideman” or “Sideperson” release forms on hand for session players to sign, though I’ve signed them as an engineer as well (mixing is often understood legally as a performance, and I sometimes end up playing on sessions I’m engineering). The pros will know the routine, but among friends release forms are perhaps the most awkward to bring up, as they are the equivalent of saying, “You’ll get nothing for your friendly contribution.” As a consolation of sorts, the compensation for “work for hire” agreements often includes credits, which are a way to add value to the agreement as well as giving props to creative egos. Let me stress that even among friends they’re a good idea, especially if the artist is looking to sign a label deal down the road, as the label will want to know that all performances are “free and clear.” If you explain openly why you are asking them to sign a release form, friends will certainly understand, and you can always blame your request on your attorney who makes sure you get these things signed.
Sometimes you may have to decide whether to get out a split letter or a release form. Let’s say someone has contributed to a song in a way that feels like he or she wrote a major hook (hooks are a notoriously murky subject). You can go two ways – get that release form signed pronto if you plan to share nothing, or crack out a split letter and decide just what percentage you want to share. Leaving it open until later only invites problems down the road. Many release forms include language that covers any “incidental” song composition contributions and transfers that ownership to the producer or artist (this depends in turn on the agreement between the artist and producer). Of course every case is different, and you may want a little time to consult with others or to just think it over, but let the session player know that you’ll have something to sign either way ASAP.
I am often hired to mix records, so I have a contract that is designed just for mixing. I’ve worked with my lawyer to make this as short (just over three pages) and as free from legalese as possible. It covers the following topics:
• how many songs will be mixed
• how many mix revisions per song (I try to offer two revisions for a total of three mixes per song, and then go hourly)
• each mix is for one recording of the song (i.e., they can’t suddenly say, “We want you to mix this acoustic version with the orchestra instead of that rock version you were working on all week.”)
• instrumental mixes will be provided (assuming there are vocals)
• whether stems are included or not (not part of my mixing rate and billed hourly)
• how much the client is paying, payment method and when
• that the client is responsible for studio rental (unless included in the rate), equipment rentals and any other extraneous expenses
• that the mixer is not responsible for archival back up of any project data other than the mixes
• that mixing services are “work for hire” and that the mixer has no claim in either the compositional © or sound recording (p) copyright, unless set out in another agreement (this protects the client)
• that the mixer has the right to attend and/or review the mastering of the mixes (turns out clients love this clause as it shows true concern for the whole project)
• how mixer’s credits are to appear
• how and when mixer is to use the recordings on demo reels and websites as examples of their work
• that mixer has 30 days to respond to any disputes
• that the project is considered done when the client signs the included acceptance letter
• a clause determining the county in which disputes will be settled (I use my county of business), and that the loser in any legal action will pay all legal fees associated with the dispute (for example, you may need to bring a non-paying client into court)
As you can see this contract protects the mixer and the client, and for this reason it typically sets both parties at ease. Each of us will have our own preferences for how to arrange the terms of a mixing contract, and we can tweak them to meet the needs of individual projects. I encourage you to develop contracts that help you work the way you want to work.
These can be far more complicated. Among the many types of production contracts, two common ones are “work for hire” or “front end deal”, with the producer making no claim beyond her or his rate (my version is usually about four pages long) and the “backend deal” in which the producer gets a percentage of record sales (mine are typically about fifteen to twenty pages long). The complexity of backend deals can’t be explained within the confines of this article, so let’s focus on that shorter “work for hire” production contract, as these are likely more relevant for those just coming into working on contract. A typical “work for hire” production contract covers almost exactly the same points as the mixing contract above, but it also spells out the following:
• the producer is to deliver production masters ready for broadcast and duplication, meaning that s/he sees the project through mastering
• how many production masters the producer will be delivering (for example, an EP may range from 4 to 6, and an LP from 8 to 12)
• how much the client is paying, the payment method and time
• producer is doing “work for hire,” unless spelled out in another agreement (i.e., no backend deal)
• how and where producer’s credits are to appear
• how producer is to use the recordings on demo reel and website
• producer has thirty days to respond to any disputes (sometimes this is shortened)
• any songs that the client wants to have produced again will cost the client a specified per-track rate
• the various costs of production (studio rental, hiring musicians, etc…) are assigned to the producer and/or the client (these allocations depend largely on whether the client is handing the producer a lump-sum budget or just his/her fee and covering the rest of the expenses as they arise)
• that the project is considered done when the client signs the acceptance letter and pays in full
• a clause stating that the producer essentially owns all of the sound recordings, outtakes and separate recorded tracks until the client has paid in full (this is key if you end up getting stiffed)
Let me stress that this is just a cursory glance at one version of a fairly stripped-down production contract that has been specifically tailored for the way I work. However, I hope it helps to show some of the things that can be covered in a freelancer’s “work for hire” production contract. Of course, for any project the terms will vary. We will all bring different things to the table for negotiation (whether you have your own studio is an important factor to be considered), and our clients will require different arrangements as well.
When looking at backend production deals, the variables increase considerably, and will include the terms of royalty payments on record sales, a “buy out” clause for the next record should the artist decide to work with a different producer and a slew of other complex matters. In short, you will need a lawyer to help negotiate and draft production contracts with a backend.
The above are relatively formal contracts that cover long- term projects where the roles are more clearly defined. But, as we all know, a lot of a recordist’s work takes place less formally over shorter periods of time. Let’s look at some of the less formal ways in which we can make written agreements.
As an engineer there have been times when I have decided to get a simple letter of agreement signed by a client. This is usually in cases where there is a large amount of money involved, say for a longer lockout situation. I will also get a letter of agreement if the client has a tendency to try to squeeze a bit too much out of me and/or the studio on sessions, or if I get what one of my colleagues calls “that feeling” during conversations with the client (you probably know that feeling). These letters usually just state the basic terms of the work – my rates, a payment schedule, the hours (really important if you’re doing a day rate) and sometimes the boundaries of miscellaneous variables (client provides hard drives, for example).
For shorter bookings – let’s say a day of drum tracking – it’s really not very common to get anything signed, but email can be a good way to confirm any oral agreements. My emails typically say something like, “Just wanted to confirm that we’re on for Friday at noon and we’re going to track for ten hours at a rate of $X/hour (dinner breaks are billable). Remember to bring your checkbook and I’ll bring an invoice so we can settle up when we’re done.” I suggest that you try to get some sort of confirmation response from the other party, acknowledging that the message was received and the terms are as you both understand them. Even a one-word reply (“ok”) implies that they read your e-mail, understood the terms and, thereby, a valid contract understanding is cemented. At least once these emails have exposed a misunderstanding between me and a client.
These emails are also a good opportunity to make known any deposit/cancellation policies you or your studio may have. A clear deposit/cancellation policy is a good idea. I don’t always get a deposit as an engineer, but with new clients or clients from those whom I get “that feeling,” I often ask for a percentage up front with the rest to be paid at the end of the session. I also let them know that if they cancel within 24 hours, the deposit isn’t refundable and that no-shows are billed in full. Of course, one can’t always be totally strict about these things, and we have to consider that life happens and remain forgiving when appropriate. But in cases where someone is taking advantage of your time, it’s important to uphold any policies you may have.
As a freelance engineer working in commercial studios, sometimes I have to communicate the studio’s policies to my clients. While it is up to the studio to set their own policies, my clients’ behavior vis-à-vis those policies can impact my relationship with the studio. I make sure my clients understand any studio policies, especially regarding deposits and cancellations. One studio where I do a bulk of my tracking work has a very clear deposit/cancellation policy, and I copy and paste that into my emails with clients once we have agreed on the session dates. This way my clients understand what’s involved in renting the studio, whether I’m renting it on their behalf or they are paying the studio directly.
Now that we’ve looked at some examples, I want to return to the idea that getting things in writing can initially be rather awkward or may even backfire. In order to prevent a situation where asking for a written agreement backfires, the best advice I have is to be upfront and sincere about why you’re asking. I recently had a client balk at my asking for a written agreement for a lockout. When I explained that I was hoping to avoid some logistical confusion like we’d had on the previous record together, my client said, “Oh yeah. That’s true. Good idea.” I’m sure there are many stories of attempting to get things in writing backfiring, but in most cases a little awkwardness before sessions begin can prevent friction while recording (when you need it the least).
From emails to contracts, getting things in writing is about establishing and honoring trust so that the creative work that lies ahead can take place unhindered by logistical business complications. Simply put, contracts are a form of explicit communication. Regardless of how you end up arranging your contracts, keep in mind that the important thing is to have worked through the details to the point where each party is getting a fair deal and a clear understanding of the parameters of the relationship. And, again, if you’re new to getting things in writing, now is a great time to jump in. There are good vibes on the other side, and good vibes are vital to great recording sessions.
FOR ALL ASPECTS IN DETAIL: ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS BY DONALD S. PASSMAN
FOR ALL ASPECTS OF MUSIC BUSINESS AGREEMENTS WITH GREAT EXAMPLE CONTRACTS: GET IT IN WRITING BY BRIAN MCPHERSON, ESQ.
FOR SAMPLE CONTRACTS: THE MUSIC BUSINESS CONTRACT LIBRARY BY GREG FOREST
FOR PUBLISHING, COPYRIGHT AND SPLIT LETTERS: MAKING MUSIC MAKE MONEY BY ERIC BEALL
FOR PRODUCTION (AND BY EXTENSION MIXING) CONTRACTS: CONFESSIONS OF A RECORD PRODUCER BY MOSES AVALON
NOTE THAT THE MUSIC INDUSTRY IS CONSTANTLY CHANGING AND THAT MANY REFERENCE MATERIALS CAN BECOME SWIFTLY OUTDATED. BE SURE TO CHECK PUBLISHING DATES AND USE ALL REFERENCES AS POINTS OF DEPARTURE AND LEARNING TOOLS, RATHER THAN CONCRETE RESOURCES.