Anybody with knowlegde of the music business here (lawyers?)

[BlueSwan]

I just been send a producer-contract for "Black Widow" filled with legalese and what to me appears to be outrageous parts. Such as this one: no payment until release, but even if there is no release the record label retains the rights to the production!!

If anybody here knows how these things work I'll post the entire contract here for scrutiny! Some of the parts makes me laugh, more of them make me cry!

[LittleBummerBoy]

Producers generally don't own other artists recordings. That'll be the label or the artists themselves, whether it's released or not.

[BlueSwan]

Producers generally don't own other artists recordings. That'll be the label or the artists themselves, whether it's released or not.

Right. But we also wrote the song.

Furthermore - they're talking about the "right" to the production, I think.

[LittleBummerBoy]

But we also wrote the song.

Ah. You didn't say that. Well then you should have a publishing contract which still doesn't give you ownership of the sound recording, only the 'mechanicals' - words and music.

[BlueSwan]

But we also wrote the song.

Ah. You didn't say that. Well then you should have a publishing contract which still doesn't give you ownership of the sound recording, only the 'mechanicals' - words and music.

Yet they've only send us a producer agreement, which I find very weird!

[Zog]

I don't know about the music industry... but in the writing "industry" it is normal to get some kind of a payment (advance, or fraction of advance) upon signing the contract.

-Zog

[rags]

To be quite honest, I have read many contracts of the last months... and it is a VERY time consuming business. You really have got to sit and write down the definitions and link them together properly... Unless you are not willing to do so, you are better of giving it to a solicitor and just have it checked over.

Especially since you have written the song! I think the payment is less important then loosing the rights to your song.

[BlueSwan]

I think the payment is less important then loosing the rights to your song.

Yeah, I'm pretty protective of the rights, for sure!

[BlueSwan]

In case anyone's interested:

PRODUCER AGREEMENT

(hereinafter referred to as “the Agreement”) concerning the Producer’s work for **** as
producer/arranger/musician
in connection with the recording and production of the master recordings of the track/the tracks titled
Black Widow (1 song)
(hereinafter referred to as “the Tracks”) with Spin’s recording artist/artists
************** a.k.a. Miss July
(hereinafter referred to as “the Artist”) and Spin’s exploitation of the Tracks through Spin’s engagement in the business of producing, manufacturing, licensing and distributing musical recordings by itself and/or through others.


1. PRODUCEROBLIGATIONS

1.1 Spin hereby engages the Producer to provide his services as a producer and/or musician in connection with the recording, arrangement, production, mix, co-ordination etc. of the Tracks with the Artist and to deliver to Spin finished and first class master recordings of the Tracks; fully mixed, edited, equalised and leadered half inch master tape (or DAT or another medium if agreed so - in writing - between the Parties); identifiably marked up, fully edited and mixed multitracks, ready for mastering.

1.2 The master recordings delivered to Spin, as set out in §1.1 above, shall include the following versions of the Tracks:
A. Album version
B. Radio edit (if the album version has duration of more than 3:40 minutes)
C. Extended version
D. A cappella (lead vocal only, no effects and no backing vocals)
E. Instrumental extended version (no vocals at all)
F. Sing back extended version (no lead vocal, but including backing vocals)
G. Sing back radio edit (no lead vocal, but including backing vocals)
H. PA Play back extended version (including backing vocals, but with the lead vocal raised 3-4 DB in the mix)

1.3 The producer is obliged to contribute towards and perform the work agreed or required in order to procure that the Tracks are of such commercial, artistic and technical quality that they can be approved by Spin and, if so required, by the Artist, and have the same technically satisfactory and artistically high standard as master recordings previously produced by the Producer for - and released commercially by – third parties. Approval, however, may not be retained without reasonable grounds. In the event that Spin or, if so required the Artist, cannot approve the Tracks delivered to Spin by the Producer, which according to the Producer are completed, the Producer is obliged to procure – as soon as possible and within one week at the latest - the re-recordings and/or re-editing and/or remixing hereof without further payment and perform any other work required until the Tracks have reached a satisfactory commercial, artistic and technical quality.

2. RECORDING ETC.

2.1 The Parties have agreed on the following time schedule regarding the Producer’s work:

Commenced at Completed at
Preparations NOW A.S.A.P.
Recordings NOW A.S.A.P.
Production/mix NOW 31th of April2004

Final deadline: Spin has informed the Producer – and the Producer has accepted – that the final deadline for the final delivery of the final and completely finished master recordings of the Tracks is the
31th of April, 2004
It is the Producer’s sole responsibility to obtain the approvals (agreed upon in this Agreement) in due time to make any and all necessary changes in the Tracks to meet this deadline for the delivery of the final and finally approved master recordings of the Tracks.

2.2 The Producer is responsible for the preparation and planning of all practical matters in connection with recording, producing, arranging and co-ordinating the Tracks, including but not limited to:

1. Renting of studios owned by third parties
3. Engaging any participating technicians, co-producers and other persons
4. Completing Gramex lists and similar registration forms
5. Other matters in connection with the production.

2.3 It is the responsibility of the Producer only to engage participating musicians, rent studiotime from third parties etc. according to the agreed budget (if any) attached to this agreement. If the budget is exceeded without the prior written consent of Spin, the Producer shall pay such exceeding costs through recoupment in his royalty under this Agreement (including any royalty advances to the Producer under this Agreement). The Producer shall send all invoices from participating musicians, studios etc. to Spin, and Spin shall, provided such costs are agreed upon in the attached budget (if any) be responsible for paying such invoices with or without VAT according to the wording of the invoices. The Parties agree that there shall be no budget for third party services/contributions to the production of the Tracks under this Agreement. If, however, the Parties agree to record vocals in a third party studio and/or use a third party vocal-producer, such expenses shall be paid solely and directly by Spin.

2.4 It is the responsibility of the Producer to secure that the rights of a third party are not infringed. In the event that the Producer or the Artist use samples or other material belonging to a third party, the Producer is obliged to inform Spin hereof in advance and secure that any required clearing of such samples or other material has been made with such third party prior to commencing the production of the Tracks in which such samples appear.


3. THE PRODUCER’S ROYALTY

3.1 For his services under this Agreement the Producer receives a royalty advance of
DKR 10.000,-
(+ VAT if applicable). This advance shall be paid 8 days after Spin’s receipt of an invoice and the completed gramex list from the producer and after spin’s approval of all of the final and completed tracks immediately after the first actual commercial release of the Tracks by Spin itself or through others.

3.2 On the basis of the fee/royalty advance payable to the Producer, the Producer shall pay all costs in connection with the recordings, production, arranging and co-ordinating (however, not the costs in connection with the Artist’s or other participant’s board, travel and transportation) including costs in connection with the Producer’s own or a third party’s studio, technical facilities for programming and other work, unless otherwise agreed upon in writing between the Parties.

3.3 The Producer’s royalty for the Tracks shall be calculated as follows:

3% pro rata of the Net Sales Price until the Producer has received a total royalty in the amount of DKR 1.000,000,-. Hereafter the Producer shall receive a royalty for the Tracks of 1% pro rata of the Net Sales Price.

Net Sales Price is to be understood as the price at which Spin or any third party licensing partner actually sells the phonograms exclusive of all taxes, Vat, public duties and all discounts and rebates.

The royalty to the Producer shall be accounted and paid on the same basis and in the same manner and in respect of the same sales and shall be subject to the same reductions (TV-advertising), reserves, deductions and diminutions mutatis mutandis as in the license royalty paid to Spin from third parties pursuant to the terms in the licensing agreements between Spin and Spin’s third party licensing partners in relation to the exploitation of the Tracks.

Any and all royalty advances under this Agreement are fully recoupable from all of the Producer’s royalties under this Agreement.

3.4 The Producer’s royalty is only calculated on the basis of the number of phonograms actually and finally sold and paid for above a certain minimum and the following do not entitle the Producer to any royalty:

1. Free-goods given for marketing promotional relations and bonuses and discounts.

2. Phonograms which are taken back because of defects or faults or because the distributor has a right to make Spin take the phonograms back (“returns”), and

3. Phonograms which at a given time no longer is a part of Spin’s catalogue and thus are sold to a particularly low price (“cut-outs”).

4. Phonograms released solely for promotional purposes (or any other use of the Tracks solely for promotional purposes from which Spin does not receive any income directly related to the Tracks).

5. Phonograms sold in less than 2000 units in a country

3.5 In the event that Phonograms are sold at substantially reduced prices e.g. Budget Price, Mid Price, Club Sales or Premiums then the Producer’s royalty shall be deducted with 50%.

3.6 In the event that the Tracks produced by the Producer only constitute a part of the tracks on a phonogram, the Producer’s royalty is reduced relatively (pro rate) in relation to the total number of tracks on the phonogram in question.

3.7 Spin shall settle the accounts towards the Producer twice a year no later than 3 (three) months after 30 June and 31 December for the previous 6 (six) months.

3.8 Spin shall keep accurate and up-to-date accounts of all income and expenses and of all calculations, settlements and payments with respect to this Agreement.

3.9 Not more than once each calendar year and not more than once regarding a particular statement the Producer is entitled with 4 (four) weeks written notice to examine Spin’s books and records with respect to the half-yearly statements.

3.10 Such audit shall at the Producer’s sole expense be carried out by a chartered account-ant or an attorney designated by the Producer. Such audit shall take place within Spin’s normal business hours.

3.11 Spin is entitled to receive a copy of the written result of the audit.

3.12 If the Producer does not object to a royalty statement before 2 (two) years after Spin has sent the royalty statement, the Producer’s right to object to the statement shall be forfeited.

4. SPIN’S RIGHTS

4.1 Spin owns without any limitation in time the intellectual property rights to all the Tracks, the recordings, recording material made pursuant to this Agreement, including the Tracks, masters, matrixes, types etc. and phonograms produced on the basis hereof.

4.2 By signing this Agreement the Producer has to the largest extent possible assigned to Spin any intellectual property rights belonging to the Producer under the Danish Copyright Act (and any related international copyright legislation) related to the Tracks, recordings and production pursuant to this Agreement and to all full or partly reproductions hereof including all renewed, changed and extended versions.

The transfer of the Producer’s intellectual property rights has no time or geographical limitations and Spin may use these rights in the entire universe and after this Agreement is terminated.

The transfer includes any recording and any Track and parts hereof which the Producer produces pursuant to this Agreement with no regard to the fact whether such recordings or Tracks are finished or whether they have been released on a phonogram or not.

By virtue of the transfer of all intellectual property rights to the recordings and Tracks under this Agreement, Spin has the exclusive rights without any time or geographical limitation to these recordings and Tracks, including, but not limited to, the rights

to embody and release the Tracks on phonograms and/or audio-visual works including the Internet and to copy, reproduce, duplicate, manufacture, and sell an unlimited number hereof in any configuration and by any method now or hereafter known,

to compound, compile, release and market the Tracks together or individually and/or together with other recordings or compositions,

to let the Tracks be part of free-bies, premiums, commercials and similar products,

to exploit the Tracks for public performance in whatever form, including but not limited to radio, television, other electronic transmission by way of electronic networks and the Internet and in any other ways now or hereafter known and if so to decide on which conditions such exploitation shall take place, save for the regulations on compulsory licenses,

to use and authorise other persons to use the Producer’s name, professional name, approved biographical details etc. in all media in connection with the exploitation of the Tracks

to otherwise exploit the Tracks by any method now or hereafter known including by way of synchronisation with other works, e.g. movies, multimedia etc.,

to grant licenses to any third party to make use of and exploit the exclusive rights as stated above, and

to receive any income and payments for the exploitation of the Tracks or the pertaining rights hereto.

As a consequence of the transfer of rights to Spin, the Producer may not exercise any owner’s rights concerning the recordings and Tracks covered by this Agreement. All third party requests regarding exploitation shall be referred to Spin.

According to this provision, the Danish Copyright Act sections 54 and 55 are derogated and shall therefore not be valid between the parties.

4.3 Spin is entitled to make any changes in the Tracks produced by the Producer, including remixing, without prior approval from the Producer.

4.4 Spin is entitled to engage other producers to produce and record alternative versions of the songs under this Agreement. If such alternative versions are completely new recordings and are not in any way based on the Producer’s musical production of the Tracks (except they embody the same lead vocal), such alternative versions shall not be regarded as Tracks produced by the Producer under this Agreement.

5. THE RELEASE

5.1 Spin solely decides where, when and how (and if) the release of the Tracks produced by the Producer shall take place and under which artist name as well as under which label name etc.

5.2 Spin shall accord the Producer the credit on the sleeve or inlay card of each phonogram in accordance with what is considered fair practice. If Spin inadvertently fails to do so, Spin shall be obliged to rectify the error and all packaging manufacturing after Spin receive written notice of error from the Producer.


6. TRANSFER OF RIGHTS

6.1 Due to the personal nature of the Agreement and the Producer’s obligations hereunder, the Producer cannot assign this Agreement or any of the Producer's rights or obligations hereunder to any third party.

6.2 Spin is entitled to transfer any and all rights and obligations under this Producer Agreement to a third party provided that the Producer’s royalty is not effected hereof.


7. TERMINATION

7.1 The Agreement cannot be terminated by the parties with respect to the production of the Tracks unless it is done according to clauses 7.2 or 7.3.

7.2 Regardless of clause 7.1, this Producer Agreement may be terminated by both parties with 8 (eight) days notice in the event that the co-operation between the Producer and Spin and /or the Artist is impossible or to a significant degree it is complicated due to fundamental disagreements regarding the production of the Tracks or due to similar significant circumstances which effect the co-operation.

7.3 A party's material breach of this Agreement entitles the other party to terminate this Agreement with immediate effect and /or demand damages paid from the breaching party according to the common provisions of Danish legislation.

7.4 In case one of the parties terminates this Agreement, Spin is entitled to have a third party complete the production of the Tracks. Any royalty to the Producer under this Agreement, shall in this case be reduced by an amount equal to any and all fees and royalty due to the third party producer for his work on the Tracks that was deemed necessary by Spin to complete the production.


8. DISPUTES

8.1 Any dispute between Spin and the Producer shall be settled according to Danish law.

8.2 Any dispute between the Spin and the Producer shall be settled by arbitration. The arbitration shall be set up in Copenhagen and shall be governed by the Danish Institute of Arbitration and the rules of that institute.


9. SIGNING

9.1 The Agreement shall be drawn up and signed in 2 (two) identical original copies and each party shall receive one original copy.


Date: Date:
Place: Place:
For Spin: For the Producer:

[rags]

If "The Track" is Black Widow. Then howcome Spin has the Intellectual Property Rights (IPR) on that?

Actually... that is the only part of the contract I really dislike. Have you received any money for Black Widow, have they bought the track of you? I don't know the back story on that really. But if they take your track and made you the producer for it, I would not think that would give them the IPR without a seperate contract/payment for the track.

All payments seem to be fine when I read over it, they are just protecting their own money in case the single flops. However, I do think point 5 is a bit shit (Phonograms sold in less than 2000 units in a country). Suppose that is a default clause...

I suppose 3.1 is not that nice for you But lets be fair, if that record is never going to be released, they aren't making money either... and I believe the goal of this project is to release a track. I am a bit too nice and postive thinking though sometimes when it comes to these things.

[BlueSwan]

If "The Track" is Black Widow. Then howcome Spin has the Intellectual Property Rights (IPR) on that?

Actually... that is the only part of the contract I really dislike. Have you received any money for Black Widow, have they bought the track of you? I don't know the back story on that really. But if they take your track and made you the producer for it, I would not think that would give them the IPR without a seperate contract/payment for the track.

All payments seem to be fine when I read over it, they are just protecting their own money in case the single flops. However, I do think point 5 is a bit shit (Phonograms sold in less than 2000 units in a country). Suppose that is a default clause...

I suppose 3.1 is not that nice for you But lets be fair, if that record is never going to be released, they aren't making money either... and I believe the goal of this project is to release a track. I am a bit too nice and postive thinking though sometimes when it comes to these things.

The "no payment in countries where it sells less than 2000 copies" is complete bullshit, if you ask me. I have NEVER heard of anything like that before.

But to answer your question: NO, they have not bought Black Widow. I have not received any money at any point yet. This is why I believe there's a songwriter deal missing somewhere. I can't see how they can own the IPR's either - this part really puzzles me.

[BlueSwan]

I suppose 3.1 is not that nice for you But lets be fair, if that record is never going to be released, they aren't making money either... and I believe the goal of this project is to release a track. I am a bit too nice and postive thinking though sometimes when it comes to these things.

Well, I signed a record deal back in 1994 for my instrumental track "Sunset". That song was never released in any shape or form. This is why I can't accept signing away any rights unless release is guaranteed - or we're paid a very significant sum of money!

[rags]

My opinion right now is, not to sign this contract, as it looks like you are loosing the rights for Black Widow, purely based on the defintion of "The Track" (but I am not familiar with the music industry, this is purely based on what our company has been fighting for with our clients, the IPR, and thank god we own that).

But to answer your question: NO, they have not bought Black Widow. I have not received any money at any point yet. This is why I believe there's a songwriter deal missing somewhere. I can't see how they can own the IPR's either - this part really puzzles me.

Since you are puzzled yourself, I would see that as another reason not to sign untill you hold at least the IPR of Black Widow, or have it on black and white that the copyright of the song is yours... (I wonder if I am using the right terms here). How difficult is that though, because without them having the IPR it is going to be difficult for them to do with the song what they please, and that would greatly bennifit you...

[BlueSwan]

My opinion right now is, not to sign this contract, as it looks like you are loosing the rights for Black Widow, purely based on the defintion of "The Track" (but I am not familiar with the music industry, this is purely based on what our company has been fighting for with our clients, the IPR, and thank god we own that).

But to answer your question: NO, they have not bought Black Widow. I have not received any money at any point yet. This is why I believe there's a songwriter deal missing somewhere. I can't see how they can own the IPR's either - this part really puzzles me.

Since you are puzzled yourself, I would see that as another reason not to sign untill you hold at least the IPR of Black Widow, or have it on black and white that the copyright of the song is yours... (I wonder if I am using the right terms here). How difficult is that though, because without them having the IPR it is going to be difficult for them to do with the song what they please, and that would greatly bennifit you...

I agree! I won't sign the contract as it is, for sure! The question is how much I'll be able to change without them backing out?

[rags]

Again... from own experience... a lot more then you think, especially when you are good at what you do. And we all think so here!

And besides, there is nothing wrong with discussing a contract.

Also, what is important for you all in the end (the group Blue Swan), do you want to get acknowledged as a good producer and song writers, or do you want to keep hold of Black Widow and possibly loose an opportunity (worst case scenario I think they should be quite willing to listen to your points and amend the contract in places).