More commonly in genres such as electronic music and hip hop, samples (i.e. sections of someone else’s song) may be added to a song. The sample may be brought in to the studio by an artist or perhaps suggested by the sound engineer acting as a producer. It can be a short looped vocal or instrumental snippet sprinkled here and there or the whole rhythm section a song is built upon. In all cases a sample clearance must be sought both with the party that controls the recording the sample is taken from (often a record label but it can be a self-release artist) and the composition embedded in the sample (often a publisher but it can also be a self-published songwriter). Assigning responsibility for the clearing of samples is often defined in a producer or a record label contract.
Once the parties controlling the copyright in the sample (record label and publisher) have been identified, the parties must draft a contract that includes:
- the titles of the song the sample is taken from and the song the sample will be included in;
- an ‘approved usage’ section which will describe the length of the sample, how often is used in the song, any type of transformation, editing, stretching, pitch shifting the sample is subjected to;
- a ‘grant of rights’ section describing the license (often restricted to record sales and videos), whether the license is exclusive or non-exclusive, the length of the grant (often for the full length of copyright), any territory restrictions and some wording explaining that the usage of the sample will not exceed the ‘approved usage’;
- a payments section where remuneration for the use of the sample can be formulated as ‘fee only’, ‘advance and royalty’ (which will vary depending on the “approved usage”’), ‘flat rate per number or copies sold’ or a percentage of the statutory mechanical royalty rate (for clearances with publishers); and,
- a credit section where the party licensing the sample promises to mention the owner of the sampled material, where and when this is possible, in a certain manner described in the clause.
Please note that there are no compulsory licenses for the usage of sample which means that:
- The party controlling the copyright is entitled to refuse the granting of a sample license;
- no license can be obtained through collection societies (PRS, PPL, BMI, ASCAP, Sacem); and,
- every sample license must be negotiated individually with the parties controlling the copyright and usually on their own terms.
If an artist or sound engineer acting as producer wishes to circumvent the clearance of a sample recording they can produce an own version of the recording themselves (thus creating a new copyright version) or commission it with third party specializing in ‘samples replays’ i.e., sound-alikes of existing pieces of music. Please note that a license from the publishers of the songs must still be obtained for the underlying composition embedded in the sample.
Clearing a sample is a requisite and a formality that must be carried out prior to releasing a song. No artist or producer must gamble by commercially releasing and hoping the sample used will go unnoticed or the owner of the copyright will simply not bother to challenge its use. Using unauthorized samples amounts to:
- a breach of copyright in the sound recording from which the sample is taken;
- a breach of copyright of the underlying music work (the compositions);
- an unauthorized use of the artist’s performance; and/or
- a possible breach of moral rights.
Penalties for incurring on these breaches include removing the song from the commercial outlets it may have been released on, accounting profits already made to the party controlling the copyrights and paying the legal fees of the party bringing legal action against the infringing party.
As a final note on this type of agreement artist and producer are often confused as to what constitutes a sample. As a general rule, using any type of recordings made by a third party, regardless of length, constitutes sampling.
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A very useful, and relatively simple contract, for instances when collaborative songwriting, either planned or spontaneous, takes place at the studio.
A scenario to illustrate the importance of this contract: a sound engineer has a recording session with an artist. The artist brings a song idea with a very simple but catchy arrangement. The sound engineer, who is also a musician and loves writing lyrics, suggests a few additional arrangements for the intro and chorus parts and contributes new lyrics for the second verse. At the end of the session the artist and sound engineer are pleased with the work and agree, there and then, that the sound engineer has contributed significantly to the composition of the song. They both agree on a 30-70% split of ownership of the song in favor of the artist. They fill in a joint-songwriting form noting down these percentages but giving the artist the exclusive right to promote and release the song. The songs becomes a massive hit within a few months and the sound engineer gets paid 30% of all publishing income generated from the song.
As described above, the joint songwriting agreement will list the songs in which collaborative songwriting occurred along with an agreed percentage of ownership. Income generated will be paid in the respective percentages and the songs must be registered with PRS, or foreign collection society, using the same splits. There are no rules to this and the percentages are to be negotiated in good faith between the parties, ideally right after the song has been written (so memory is fresh and not selective) or at least before the song is release/published and starts generating income.
The default arrangement for this type agreement is that the different elements contributed become indivisible parts of the song and cannot be used separately as part of other songs, i.e. no party can use their individual contribution to the song in other songs without the consent of the other party. An analogy used to describe joint song-writing is that of “scrambling the white and the yolk of the egg” meaning that all the contributions become indivisible and that even if two people create separate, distinct parts of a work, they each own an interest in the whole copyright, not just their contribution. This default can be modified by spelling out in the contract that the contribution to the songs are not locked up exclusively to the songs and can be used elsewhere without having to obtain permission from the other party.
This contract will also describe whether one or both parties will have the right to exploit the songs, as in procure usages, obtain deals, record/re-record, etc.
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Producer agreements drafting can vary depending on:
- whether the producer is him/herself funding the recording;
- whether the producer is contributing to the performance and/or the song-writing
- whether the producer will do any type of representation on behalf of the artist to record or publishing labels with the view of obtaining a deal;
- the role of the producer itself, i.e. whether his/her involvement is only technical (recording and mixing tracks and bouncing a master) or whether he/she will help shape the recording and artistically influence the final product, e.g., selecting the songs to be recorded, helping with the arrangements, re-writing sections of songs, etc.
Sections common to all types of producer contracts include:
- a term describing how long the recording/mixing will take with for delivery of the final product and derivatives (i.e. individual stems, DAW sessions, etc.) from the producer to the artist.
- a description of the services provided by the producer. Here is where each contract will be customized to describe the producer role, i.e. recording, mixing, whether mastering will be provided as part of the service, any additional performance by the producer or contribution to the composition, etc. The standard of delivery expected from the producer will often be to make a record that is of quality satisfactory for the making of records i.e., a professional, industry standard master recording that is good enough for commercial release.
- A copyright section describing whether copyright will be owned by the artist alone or whether the producer will have an interest in the composition. For the the latter it´s a good idea to add a table with agreed percentages of ownership. In general, when the artist pays a fee and royalties the copyright will be owned by the artist and when the producer him/herself funds the production then the copyright will be assigned from artist to producer and the producer will pay royalty splits of future income.
- A fees and royalties section that will describe how the producer is going to get remunerated for his/her work; whether it will be flat fee or future royalties or a combination of both. The royalty will often be defined as ‘points’ i.e., proportion of the artist royalty that will be payable to the producer; for example, if an artist receives a 20% royalty for every record sold and the producer has a 5 point royalty then the artist will get 15% of the royalty and the producer will get 5%. To further explain: producer royalties are paid from the share of royalties paid to the artist by the label. The ‘points’ paid to producer are usually between 3 and 5 and the label will pay directly the producer. The The Producer may also be paid for income related to videos carrying the master produced.
- A representation section. This section describes a non-exclusive right given to the producer to pitch the final masters to any contacts he/she may have in the industry with the view of securing a deal with a record label for the masters and/or with a publisher in respect to the compositions. This section often specifies a percentage or any advances given to the artist that the producer will be entitled to in the event he/she helps to secure a deal. It may also list any royalties, in excess of the producer royalties described above, that the Producer will receive.
The producer contract can be customized to include items relevant to recording and mixing sessions and usage of the studio such as:
- minimum/maximum number of hours or sessions that will be spent on each stage of the production process, e.g. rehearsing, collaborative song-writing, recording sessions and mixing;
- whether the artist present will present at the mixing session;
- amount of time any backups of the sessions will be stored on the studio servers;
- any other miscellaneous items in relation to the use of the studio facilities, health and safety, alcohol/drugs restrictions, unacceptable behavior, lateness, force majeure (which are events out of the control of the parties that may affect the performance of the conditions in the contract), etc.
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Image credit: Ali Mannan