100 Episodes of KD and Me!

Two years ago my friend Gary from my local rock station had a little idea to call me and chat on-air about what was happening in my world. Very casual. We had a load of fun so he called me the next week and we did the same thing. Then listeners started sending in questions and requests and next thing we knew, we had a weekly segment known as “KD and Me”. We’d talk music, law, family, whatever. Anyway, long story short – it’s become a bit of a thing and we just celebrated our 100th episode!! Here’s to little ideas that become something big

5 Things to Look for in a Music Producer Agreement

So, you’ve found the perfect producer for your upcoming recording project. Great news. Now the producer sends over a 10-page contract full of legalese regarding record royalties, songwriting splits, SoundExchange revenues, producer advances and more. Before you enter the studio, here are some key points to look for and understand:

1) Who Owns the Masters?

First and foremost, you should own the master recordings once the producer fee is paid. In rare circumstances, the producer might own the masters or have some co-ownership interest, but that is definitely not the norm. Almost always, you should own the masters.

2) How Many Points for Your Producer?  

It is industry standard for your music producer to receive “points” on the songs they produce. A point is simply a percentage of record sales. For example, 4 points equals 4% of net record revenues from the masters produced by your producer. My advice: make sure that there is language inserted that allows you to recoup all expenses related to the production and exploitation of the masters before these points kick in. In other words, until you recoup all of your costs in relation to the masters, the producer doesn’t start getting revenue. Industry standard is 2-5% for points, either on the suggested retail price (SRLP) or published price to dealer (PPD). See my article here for more on SRLP vs. PPD.

3) Should Your Producer Get SoundExchange and Other Revenues?

I find that more and more producers are demanding a percentage of SoundExchange revenues on songs they produce. The same goes for other so-called “direct monies” or “flat fee” uses of the masters (film/tv placements, etc.). This is mostly a reflection of the modern realities of the music biz, as “points” aren’t worth what they used to be. Not all producer agreements include SoundExchange/Flat Fee revenues, but if yours does, make sure the language is clear and the percentage is fair. Typically, a fraction is used: whatever producer points you agree on (let’s say 4 as per above) divided by the artist’s record royalty flowing from the record label (let’s say 20%). So in this example, 4 divided by 20 gives a 20% SoundExchange/Flat Fee percentage to the producer. My advice: if you don’t know what the label royalty is or don’t have a label involved, the standard practice is to use a “deemed royalty,” which is simply a royalty that you and the producer agree on that’s based on industry standards (somewhere between 15 and 20%). I would cap the producer’s SoundExchange/Flat Fee entitlement at a specified amount, nothing over 25%. Obviously, lower is better for you as artist.

4)  Is Your Producer a Co-Writer of the Compositions?

This is perhaps the most important point to consider: is your producer a co-writer? See my article here for guidance on such a determination. I recommend that you have this discussion as to whether you intend to co-write with the producer before recording commences. I realize that sometimes co-writing just happens in studio, whether you plan for it or not, but it’s wise to discuss this ahead of time to ensure mutual expectations going in. My advice: If the producer is indeed a co-writer, you need to ensure that they assign administrative rights in the compositions to you. This will allow you to use and exploit the compositions without having to obtain the producer’s signature in each instance.

Insider tip: this exact issue was taken to the Supreme Court of British Columbia in the late 90s, when Sarah McLachlan was sued by her former producer Darryl Neudorf, who claimed he was a joint author of four of McLachlan’s early compositions. The takeaway from the court’s decision: if an artist and producer intend to co-write together, that must be agreed to before the recording process commences. Otherwise, the court will assume that your producer is not a co-writer.

5)  How Much Will Your Producer Be Paid?

The Music Producer Agreement should clearly define how much you are paying the producer, either per song or via an hourly rate. My advice: go with per song, otherwise you might be surprised by the bill at the end of the project. Typically, half of the producer’s fee is considered a recoupable advance against royalties payable to your producer. In other words, half the producer fee is considered a recoupable cost, and half is not. A typical timeline in terms of payment of the producer fee is half before recording starts and half upon completion.

Insider tip: the producer fee and producer points/SoundExchange entitlement are definitely intertwined. In other words, if you want to keep more of your royalties and SoundExchange (and can afford it), you can offer a higher per-song producer fee. The same goes the other way, if you are short on funds, you might be able to offer more on the other end. My advice: think big picture and long term, and don’t undervalue your catalog in the long term in exchange for a short-term break in producer fees.

There are many other important clauses in a music producer agreement, but this is a great start. As always, don’t hesitate to reach out with questions. My door is always open.

Wow. Handwritten Letter from Fred Gretsch

It’s not every day you get a letter from a legend. No, not Taylor Hawkins (that would be cool), but Fred Gretsch, whose name was on the front of my drums for over a decade. Mr. Gretsch had been reading articles on my website (!) and then up & called me the other day (!!). I gave him some impromptu legal advice, and he wrote me this letter. Now I’ve got an open invitation to come stay with his family down in Georgia. Time for a road trip!!

Can You Copyright a Drumbeat?

In light of the many high profile plagiarism cases making headlines in the music business over the last few years (Lana Del Rey, Led Zeppelin, Robin Thicke, Sam Smith, etc.), it felt like the right time to examine the topic of songwriting from where we all sit: the drum throne.

All of the above instances of alleged plagiarism involved similarities in melodies or chord progressions. But what about drum beats…can they by copyrighted?

As a starting point: any musical performance that is recorded in any form already has an automatic copyright in the recording of that performance. In other words, nobody could sample or otherwise exploit your recorded performance without your consent.

So the real question we need to ask: are drumbeats considered songwriting? If they are, then they form part of the musical composition and would be protected under the law just like a chord progression, melody or lyric.

The short answer: unfortunately, no. Drumbeats and drum patterns are not typically considered songwriting. The law makes clear that lyrics, melody, harmony and rhythm can be copyrighted. Most often, lyrics and melody are afforded protection under the law before the other two. This is arguably because the latter two are considered “accompaniment,” while the first two form the backbone of the composition, and remain consistent regardless of who is performing the composition.

This is actually a good thing in many ways. If every drumbeat was considered songwriting, the Bonham ‘Levee’ beat, the Bo Diddly groove, the ‘We Will Rock You’ stomp, even the standard four-on-the-floor pattern would all exist in only one song, and if you emulated any of them in a new song, you could be sued for plagiarism.

So really, the lack of protection affords us all the ability to do more in the studio, without fear of being sued. Singers and guitar players, for example, do not have such a luxury.

However, if you lifted the ‘We Will Rock You’ beat, along with similar hand claps and stomps, and added a vocal melody or phrasing similar to Freddie’s, that as a whole would likely be considered plagiarism. So it seems that a drumbeat and something else needs to be added before the piece will be considered songwriting.

Now, this is not to say that you don’t deserve a cut of songwriting when you write songs with your band. Many bands divide songwriting equally amongst all the members. The Red Hot Chili Peppers, Coldplay, etc. all divide the songwriting copyright equally for each song, even though the law doesn’t recognize the drummer’s contributions in the same manner. It’s a way of recognizing each member’s contributions as a whole to the songs and perhaps general operation of the band. In other words, it’s completely up to you and your band mates how the songwriting is divided for each song, regardless of what the law typically acknowledges.

As always, feel free to email me with questions, as songwriting is the most complex and sometimes confusing aspects of the music biz.

5 Things to Look for in a Record Deal

After years of hard work, you just landed your first record deal. Amazing. Now the record label sends over the contract and it’s thirty pages long. Yikes. Here are the main points to look for in a record deal and what to avoid.

1) How Long is the Term? This is a good starting point: how long will you be tied to this record deal? For the label, a longer term is more desirable, so they can earn back their investment and make a profit from your music for as long as possible. For you, shorter is better in any record deal. The reason? If things are going great with your label when the term expires, you can always sign a new record deal, likely with better terms. But if things aren’t so hot, you can get out and find a new label (or go back to being independent).  There will likely be “option” periods associated with any term, which allow the label to extend the length of the record deal. Ideally, such options should only be exercised via mutual agreement (i.e. not just the label deciding).

2) What is the Territory? Some record deals apply to a single territory (e.g. the USA), some apply to the entire world. If the former, you can in theory sign different deals in different territories. This can be a challenge in the digital era, where borders are somewhat arbitrary. If you sign a worldwide record deal, try to ensure that if the label fails to release your music in certain territories, those rights revert back to you. This allows you to either self release or team up with another record label in these territories.

3) What is Your Royalty? This is a big one. Many small to mid-size labels offer a “net 50” deal, which means that after they’ve recouped their expenses, you and the record label split profits 50/50. You’ll want to clearly define what expenses are allowed, and include some language that larger expenses (over $1000 for example) require your consent. For major label record deals, a typical artist royalty is in the 12-20% range. This lower royalty is a reflection of the increased investment that comes with a major label. In other words, you make less from record sales, but should be benefitting from a much larger investment in recording and marketing.

4) How Much Will The Label Invest in You? I try to get as much clarity as possible on this topic, in terms of actual budget commitments from the label. This includes dollar amounts budgeted for music videos, tour support, recording, radio promotion, and more. Your label may be hesitant to commit to actual numbers until they see how the records perform, but this is where you need a good entertainment lawyer advocating on your behalf.

5) Does the Label Participate in Non-Record Revenues? This is the biggest thing to watch for in a modern record deal. More and more, record labels are asking for a piece of the pie from non-record revenue streams such as touring, merchandise, and publishing. These are the so-called “360 Deals” that you’ve likely heard of. In many ways, they are a reflection of the modern realities facing record labels and artists. But before you give away a portion of these crucial revenue streams, you need to know what the label is prepared to do to earn their piece. If they want to commission on touring, will they be providing funding for tour support? If they want a piece of publishing, will they be providing publisher services including shopping your songs for film and television placements? Some labels who ask for these commissions do indeed provide these services, but some don’t. And remember: if you’re giving a cut of all these revenues to your label as well as a manager, it might not leave much for you at the end of the day.

These five areas are of course just the starting point. There is much, much more to look for in a modern record deal. If you take your career seriously, you will seek the advice of an experienced, trusted entertainment lawyer who will also help negotiate the best record deal possible for you and your career. As always, email me with questions.