The recording contract series; (part 22) The production/producer’s agreement

This is the agreement entered into between the label and producer, or between the artist and producer. I am sure you want to know a little about it. In South Africa, a rather strange form of this contract is very commonplace – that is the contract where the artist or label purchases ‘beats’ from a ‘beat-maker.’ The usual agreement here is an outright purchase of the recording and (where applicable) the composition of the ‘beat’.

Having said that, I do not believe that most of these ‘beats’ are copyrightable in terms of composition simply because most of them are not original enough. You therefore need to be very careful, when buying one of these ‘beats’ from a producer, that you are not paying for two copyrights and actually receiving one. Nevertheless, the usual arrangement is that the beat-maker retains no rights to the track at all.

The usual production agreement, however, is one where the producer’s services are hired and paid for at arm’s length. Some producers will only require an up-front one-off fee. Others will require a percentage of sales royalties. Yet others will require both. This all depends on your negotiations. In order to avoid conflict with the producer (which I find to be the most common dispute in the industry), the agreement should clearly state that the producer will deliver all the working files for the tracks as well as the separate wave files of all the instruments, and all other data relating to the production, all of which are owned by the artist (or label) hiring him, and that all compositional contributions made by the producer, if any, are transferred to the artist as part of the payment. Usually this will involve the payment of a ‘delivery fee’ which is either a one-off, or (where the producer has negotiated a royalty) an advance.

The disputes that arise in these agreements usually occur when the production is successful, and the producer claims rights that the artist (or label) believed were theirs. It is therefore vital to state clearly in the agreement whether the producer is entitled to any share in the compositional copyright and/or the recording copyright, and to list these shares, if any, track by track. I realise that this might be difficult to do before the recording and production process starts, and it is difficult to predict what the producer will contribute. But this is vital. If you find that the agreement is so restrictive that it is de-motivating the producer in the studio, you can always renegotiate or move to another producer.

The agreement must state either:-

1. that the producer’s contribution (both to the composition and sound recording) will be owned outright by the artist or label (in which case the producer will require a higher payment); or

2. that the producer is exclusively licensing his contributions to the artist/label for a particular time (usually he will do this when he wants the works but the artist or label is unable to pay him the advance). This model is messy and can cause future problems, because there will come a time when the license expires, and the rights will revert to the producer; or

3. that the producer is licensing his contribution non-exclusively. This is the messiest of all, because you will find your recordings appearing on other people’s releases or, even worse, on an advertisement or movie – an everyday occurrence in South Africa, but unacceptable; or

4. that the producer is recognised as a contributor to the composition and recording, and that this is affirmed by the artist and/or label. If you feel that the producer will contribute this much in the compositional sense, then you should require this level of performance from him in the contract and again state the percentages, track by track. In this scenario, the producer could contribute to the “musical work” of the track, the instrumentation and recording, and the general “quality control” of each track. Thus, in this model, he will share in both the publishing and the recording (if he is on a sales royalty). Only do this if you are certain he is worth it.

5. remember that the producer will also, by law, be entitled to needletime due to his performance on the record. It is therefore vital to state in the contract whether he is to be listed as a non-featured or ‘other featured’ performer. If the latter, he will share the 65% featured performer’s share. If the former, he will stand in line for the other 35% with the session musicians.

Generally, the producer should supervise the recording of vocals and instrumentation, final editing, mixing and mastering. The advance I spoke of earlier could be split between both sides – recording and publishing – and recouped by the artist/label before paying the producer his royalties. Often though, a producer who simply arranges the other instruments on a track just gets paid a once-off fee, but this situation is different as the beat producer comes with music already in hand and the performer adds additional melodies and lyrics (in which case the producer could get less of a share of publishing because the performer is now a songwriter with the producer).

It may look a bit complicated but it’s about knowing that your work has different revenue streams, and understanding which ones you and/or the producer are contributing to, and in what proportions. Once that is understood, the producer’s contract should accurately reflect that understanding.