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Songwriter Contracts
Nashville Songwriters Association International
and
Tennessee Volunteer Lawyers for the Arts
Kenneth J. Sanney, Esq.
Overview
The Standard Contract
Rights and Royalties
Songwriter Agreements
The Standard Contract
y There is no standard contract.
y Songwriting agreement vary greatly from publisher to publisher and from writer to writer. y Everything is negotiable.
y Success in negotiating is based on (1) knowledge, (2) barging power, and (3) good negotiating skills. Rights and Royalties
Mechanical Rights: given to a record label in order to reproduce the song in the form of a phonorecord (cd, tape, digital downloads).
• The record label is responsible for paying mechanical royalties to the owner of the song. 2. Performance Rights: granted in order for the song to be sung or played (recorded or live) in a public place or on radio and television.
• Performance Rights Organizations are responsible for paying performance royalties to the owner of the song—should be a direct payment, not routed through publisher.
1.
Songwriter Agreements
y The phrase “Songwriter’s agreement” refers broadly to agreements (i.e., contracts) between a songwriter
and a music publisher. y The phrase can specifically refer to any one of four types of agreements.
1. Single Song Agreements
2. Exclusive Songwriter Agreements
3. Co‐Publishing Agreements
4. Administration Agreements
Songwriter Agreements
Single Song Agreements
Exclusive Songwriter Agreements
Co-Publishing Agreements
Administration Agreements
Types of Songwriter Agreements:
y Songwriter agreements cannot only be classified by their 4 types :
1. Single Song Agreements
2. Exclusive Songwriting Agreements 3. Co‐Publishing Agreements 4. Administration Agreements
y They can also be classified as either:
1. Exclusive or 2. Non‐exclusive.
Single Song Agreements
y Under a Single‐Song Agreement, the songwriter transfers copyright ownership of specifically identified song(s) to the publisher.
y These are non‐exclusive agreements
y There is no term because such agreements are simply a one‐time sale, where the copyright is transferred from the Songwriter to the Publisher. Single Song Agreements
y Caution: the phrases “employment for hire,” “work for hire” and “exclusive writer agreement” should never be present in single song agreements. y Caution: There should be no options for future songs.
Exclusive Songwriter Agreements
y ESA’s contain many of the same provisions of a single song agreement.
y The main difference is that:
• The songwriter is transferring copyright ownership of all songs written during the term
of the contract to the publisher and
• Songwriters usually receives advances, which are recoupable from the Writer’s royalties.
Co-Publishing Agreements
y Under a co‐publishing agreement, two or more parties share ownership of songs (or are "co‐
publishers" of the songs). y Songwriter transfers partial copyright ownership to the publisher and retains part ownership. Co-Publishing Agreements (cont.)
y Under such an arrangement, the songwriter and the publisher are co‐publishers since they co‐own songs written by the songwriter. y Co‐publishing agreements often have some similar provisions to those found in exclusive songwriting agreements and also recording artist contracts.
y The main difference is that the songwriter will receive both the songwriter’s share and a cut of the publisher’s share the total royalty income.
Administration Agreements
y An Administration Agreement is simply a service contract between the writer (or writer’s publishing company) and a publisher or administrator.
y Writer enters into an agreement under which a larger publisher or an "administrator” issues licenses for the use of the writer's songs and collects the income generated from those uses. Administration Agreements (cont.)
y In return for the services it provides, the administrator keeps a percentage of the income it collects, usually from 10% up to 25%, depending on the extent of services provided. y The writer does not, however, transfer any copyright ownership to the publisher. Royalties
Rates
Deductions
Controlled Composition Clauses
Recording Artists and Co-Writing
Royalty Statements and Audit Provisions
Rates
y Current statutory rate: 9.1 cents per composition sold.
y “Long Song” Rate: If a cut is more than five minutes in length, it will be paid an increased royalty of 1.75 cents per minute. (i.e. 10.5 cents for a 6 minute song, etc.). Rates
y Songwriters should receive fifty percent (50%) of all publisher’s income on all licenses issued. y If the publisher prints and sells his own sheet music and folios, the Songwriter’s royalty should be ten percent (10%) of the wholesale selling price. y The royalty should always be stated as a percentage and never as a flat rate.
Deductions
y Demos and all other expenses of publication should be paid in full by the publisher. y The only fee generally charged to the songwriter is one‐half of the Harry Fox Agency collection fee. Controlled Composition Clauses
y Many recording artist contracts contain clauses that limit royalties the record label is responsible to pay to the songwriter to 75% of statutory rate.
y Artist is then responsible for the other 25% out of their royalties. y Some artists will refuse to cut a song if the songwriter is not willing to accept 75% of the statutory rate.
Recording Artists and Co-Writing
y Many recording artists are now asking for a co‐
writing credit in order to cut the song on their album.
y This will reduces the songwriter’s royalty by some percentage (usually 50%) which now goes to your co‐author (the recording artist)
Royalty Statement and
Audit Provisions
y Royalty Statements: Once your song is used in any way that would generate a royalty you are entitled to receive royalty statements at least once every six months. y Audit provision: allows you to audit the records. • Caution: such provision will often contain a time restriction that cuts off your ability to audit the books‐‐Try to negotiate out of such restrictions. Other Important Provisions
Revision Clauses
Approval Rights
Future Uses
Writer’s Credit
Performing Rights Organizations (PRO’s)
Conflict Resolution
Reversion Clause
y All songwriter agreement should include a provision stating that the songwriter may terminate his or her agreement if the publisher does not secure a release of a commercial sound recording within a specified time.
Approval Rights
y You should negotiate such rights into every contract, especially if the contract includes a provision stating that the publisher can change the title, lyrics, or music. y Approval rights clauses require the songwriter’s consent before such changes can be made.
y Try not to settle for consultation rights.
Future Uses
y Any use not specifically addressed by the contract should be retained by the songwriter to be negotiated as it becomes relevant.
Writer’s Credit
y Any songwriter agreement should have a clause assuring that the songwriter is credited on any sales of his or her song whether it be in a phonorecord or in print. PRO’s
y Be careful that you include a clause that addresses your performing rights affiliation: • If you are affiliated with either ASCAP, BMI or SESAC (usually because you have signed a previous agreement that created this affiliation) your new agreement must address this affiliation. Conflict Resolution
y Arbitration: In order to avoid large legal fees involved with any dispute the agreement should include an arbitration clause.
y Jurisdiction and Venue: Both should be in Nashville, Tennessee. This avoids incurring the expense of out‐of‐state litigation in a place like New York or Los Angles. Resources
y Nashville Songwriters Association International
615.256.0034
y Tennessee Volunteer Lawyers for the Arts
615.312.7224
y Kenneth J. Sanney, Esq.
615.456.6502