“Yeah, We’re Recording..”
Recording. Just the word sums up the essence of music industry dreams: “We’re recording.”
For most bands or artists, making your first real recording is a big step, and the culmination of lots of hard work in practising, songwriting, rehearsing, playing live and cultivating fans. Its also the step that may bring you to a wider audience and possibly to the attention of labels.
So, of course, you want to get it right - after all, a recording is a “record” of what you’ll do.
You should also make sure you have addressed some of the legal issues arising in relation to making a recording, to make sure all rights are dealt with properly. The situation will usually be different if you are making your own recording, than if you are signed to a recording deal.
See out the “Recording and Publishing” page of WAM’s “
The Notes” for general info.
Doing It For Themselves
If you aren’t signed to a label under a recording agreement,you will be responsible for almost all aspects of the recording process, or the very least, getting someone to do bits of it for you, whether that be a studio, engineer, producer, session musicians or vocalists. You might even get someone else to fund the recording process. The main thing to think about is: copyright.
As set out on the Copyright - your property! page, the copyright in any sound recording will be owned by the person making the actual sound recording, or the person paying for it to be made You should make a written agreement with anyone making the recording (i.e.. not those “making” it as in playing on it, but “making it” in the sense of doing the recording process). This would apply to a studio you record in, the owner of recording equipment or financiers.
There are three other areas you may have to deal with someone involved in your recordings.
Your band or collaborators - if you are in a band or collaborate with another musician, you may have agreed on how each of you will share copyright and royalties in songs you write. The same applies to any sound recording you may make - see Song Writing and Song Rights. It’s important that between each of you it is clear who has what share (if any) of the separate copyright that’ll exist in each sound recording you make of a song (yours or someone else’s).
Producers - even though a producer is unlikely to actually fund your recording, and couldn’t be said to be “making” the recording, they may be heavily involved in the creative process. many producers may also want a share in the copyright, or the royalties, arising from their work. If you engage a producer, you should agree both of these important matters in writing.
Session musicians and vocalists - if you involve session players in your recording process, and don’t agree in writing that they won’t own copyright or be entitled to record royalties, you could find someone claiming that they should be, as they were involved in the process! The simplest solution is a written “release” from copyright and moral and performers rights.
The Real Deal - Recording Agreements
If your wildest dreams come true, and you have landed a recording contract with a record company, additional issues start to arise. A label is more than just a “financier” who perhaps wants a share of income to repay their investment. A label will usually want more. Much more. In almost every case, a record label will present you or your band with a recording agreement to sign.
Before you sign away, like with managers or publishers you should consider the following:
- Is the label reputable? Whether it’s a major, independent, or newbie, is it well regarded, and do you have anyone who can tell you about the company from their own experience?
- Do they have good contacts? If they are going to do more than just “fund” you, will the record label be able to successfully play a role in promoting your record once released?
- Read each term of the contract carefully, and seek legal advice. Although its great to have the label’s interest in you and your relationship with the label “recorded” (ha ha!) in a written contract, remember, like anything in the music industry, it’s open to negotiation, and if you want to make changes, you should raise them now. See Contracts Generally.
A Rrruff! Guide To A typical Recording Agreement
The following information should help you understand the key clauses in a typical recording agreement, and help you prepare to talk to the record label about anything you consider needs to be changed. But, as the rights dealt with are very important, you should seek legal advice.
Essentially, a recording agreement binds you and your band to provide “personal services” to the label to record music (yours or someone else's). You become a contracted recording artist. In return, the label agrees to pay for the recording (and hence they’ll want to own copyright) and release it. They may even promise to promote it or support you in touring to promote it.
So, at the end of the day (i.e. 5am in the studio), pay attention to what you are agreeing to do.
Term and Option Periods
This is one of the most important clauses to consider, as it will determine how long you and your label will be working together, and you are bound to deliver. The “term” is usually set so there is an ‘initial period’ from the date of the agreement, and ending, say, 6 to 9 months after delivery to the label of your first ‘minimum commitment’ of recorded songs. This initial period is only the beginning, and is often followed by several successive ‘option periods’. An option period usually carries with it a further ‘minimum commitment’ for you to deliver in it.
Although these option periods, which extend the term beyond the ‘initial period’, are usually exercised at the record company’s discretion, but you may find a ‘wake-up’ clause, which puts an obligation on you to notify the record company about the upcoming option period.
It’s best to keep the term, including the number of option periods, as short as you can. Look carefully also as to how the term may be extended in other ways, for example, if you deliver, but the material is not to the record company’s subjective satisfaction. See Artistic Control.
Minimum Commitment
An artist will normally be required to produce a ‘minimum commitment” for the initial term, and each subsequent option period. This is usually an album’s worth of songs but usually no less than 10 songs. So, for example, a term with four option periods would mean you need to produce, at a minimum, 5 albums. Again, carefully consider whether, in addition to the time involved in other activities such as touring and promoting any one record, you will have the creative energy and time to deliver whatever is the minimum commitment in the time agreed.
Better still, if you’re new to a label, or its not a major, try to keep the deal to just one album.
Copyright
Remember that the person who pays for the sound recording is the owner unless it is agreed otherwise. That is usually your record company. The contract may usually also ask you to assign to the label any other rights in the sound recordings necessary to exploit the copyright. This assists a record label in being able to generate as much income in your record as it can.
This might include the cover art. If you supply and pay for your own cover art, you will own copyright in it unless you agree to assign it to the label. If you do keep these rights you won’t need to ask the label for permission if you want to use it for anything else, like merchandise.
Artistic Control
It may be important to you to have a say in the artistic direction of “your” record! Any kind of clause in a recording contract dealing with artistic control should be considered carefully.
If possible, try and include clauses requiring that any decision to, for example, bring in an arranger, is subject to your prior approval, or at the very least, you are properly consulted.
Beware of clauses that make acceptance of what you deliver subject to commercial or artistic acceptability by the record company. You may find that if a label dislikes it for any reason, you have to keep producing new songs or records, before you’re off the hook (and the label’s release obligations kick in). At the least, any acceptance clause should be based on a concept of “reasonability” and sets out a method for settling any disagreements over ‘quality matters’. Better still, the agreement may state that if what you deliver is technically OK, its acceptable.
Advances
Advances from a record label are often made to provide the artist with funding to record on. As with any “advance”, it is just that - an advance payment of the income expected from the album, and is most often fully recoupable from all royalties earned (i.e.. the artist’s royalties from sales are retained by the record label and applied to “off-set” the costs of the recording). These recoupable deals are standard, and keep labels and artists “tied” to costs of recording.
Be aware of clauses dealing with advances, and ensure that money spent on your behalf (but not actually paid to you) by a label is not treated as an advance without your approval (or at least, your knowledge). This is definitely an area to seek legal (or financial) advice on, but advance clauses should be clear on the amount involved, and how and when it is repayable.
You should make sure you get professional advice on how this works, and may affect you.
Royalties
Royalties from sound recordings are essentially based on sales of the recordings, but can also apply to licensing of the record (as opposed to the songs recorded on it - see Copyright page). Make sure you understand how your royalties will be calculated, as this can be very complex. As with publishing contracts, both the percentage and the “royalty base” must be considered.
It is also worth trying some rough calculations as to what you will actually receive, especially after recoupment of advances. You may be surprised how long it takes to clear your advance.
To back it all up, ensure that you have the right to inspect the label’s accounts, say, annually.
As set out above, it’s a very good idea to get professional advice on this aspect of your deal.
PPCA
PPCA stands for the
Phonographic Performance Company of Australia, which is responsible for licensing the ‘communication’, ‘broadcast’ and ‘public performance’ of sound recordings on behalf of the copyright owner of a sound recording (which is usually the record company). The PPCA is like
APRA, except it administers copyright in “sound recordings”, not songs.
The PPCA distributes most of the money it collects to record labels (ie. who own copyright), but it also distributes a portion direct to artists on a recording, if they are registered under the “
Artist Distribution Scheme”. If you have not registered with PPCA, all the income will be sent directly to your recording company (or whoever holds the copyright in your recordings) to be distributed in accordance with your recording contract (i.e.. most to them, some to you).
Obligations of the Record Company
Under a recording contract, the reality is that you’ll have to do all the hard work in producing the minimum amount of recordings in each period, your record company should be obligated under the contract to release the record within a certain timeframe and in certain territories. If it’s part of the deal, it should also be required to promote it and the artist, including by tours.
The territory is important, and there could be an obligation on the label to seek arrangements with international labels to distribute the record in any overseas country you wish to target. Or, you might want to include a clause stating that if your label doesn’t line up any overseas distribution within say a certain time, you can do so directly with any label you might know.
The obligations on your label in the agreement will serve both to make it clear what you will get out of the deal beyond just funding to record, and may help you terminate the contract (in or outside a termination clause) if your record label is not performing its side of the bargain.
Termination
Make sure there is a termination clause in the agreement that allows you (not just your record label) to terminate if the label has breached its obligations under the agreement. Usually there will be a ‘cure period' of 30-60 days, giving the label a chance to remedy any breach, but if it is not cured within that time, you can terminate the contract. If you don’t have a clause of this kind, you’ll have to rely on a serious breach of a specific obligation to terminate the contract.
Dispute Resolution
Recording agreements are contracts for personal services, meaning that they involve an artist providing special skills to make a recording. This sometimes leads to differences in opinion as to, for example, what songs are to be included on the record, or how best to promote it. If things like this do occur, it is useful to have a dispute resolution clause in your contract that suggests a path for the parties to find a solution, for example by mediation or arbitration. You may otherwise get bogged down in the issues and the contract, with no way out of the mess!
Other Clauses
A record label may want to able to assign its rights under the contract to others. Ideally, this should only occur with your prior, written consent - so you know who you’ll be obligated to! Or, the contract may restrict an assignment to a related company of the record label, and state that any new company will agree to perform the first label’s obligations under the contract.
A Final Word
Recording is exciting, especially if someone else wants to pay for it and release it. But there is a lot at stake, so make sure you consider agreements about recording properly. Negotiate.
The information above is only an overview of recording contracts, and as the ol’ saying goes, “the devil is in the detail”. It is definitely best to get legal advice on any recording contract.
Further Information and Advice “Yeah, We’re Recording..”
Recording. Just the word sums up the essence of music industry dreams: “We’re recording.”
For most bands or artists, making your first real recording is a big step, and the culmination of lots of hard work in practising, songwriting, rehearsing, playing live and cultivating fans. Its also the step that may bring you to a wider audience and possibly to the attention of labels.
So, of course, you want to get it right - after all, a recording is a “record” of what you’ll do.
You should also make sure you have addressed some of the legal issues arising in relation to making a recording, to make sure all rights are dealt with properly. The situation will usually be different if you are making your own recording, than if you are signed to a recording deal.
See out the “Recording and Publishing” page of WAM’s “
The Notes” for general info.
Doing It For Themselves
If you aren’t signed to a label under a recording agreement,you will be responsible for almost all aspects of the recording process, or the very least, getting someone to do bits of it for you, whether that be a studio, engineer, producer, session musicians or vocalists. You might even get someone else to fund the recording process. The main thing to think about is: copyright.
As set out on the Copyright - your property! page, the copyright in any sound recording will be owned by the person making the actual sound recording, or the person paying for it to be made You should make a written agreement with anyone making the recording (i.e.. not those “making” it as in playing on it, but “making it” in the sense of doing the recording process). This would apply to a studio you record in, the owner of recording equipment or financiers.
There are three other areas you may have to deal with someone involved in your recordings.
Your band or collaborators - if you are in a band or collaborate with another musician, you may have agreed on how each of you will share copyright and royalties in songs you write. The same applies to any sound recording you may make - see Song Writing and Song Rights. It’s important that between each of you it is clear who has what share (if any) of the separate copyright that’ll exist in each sound recording you make of a song (yours or someone else’s).
Producers - even though a producer is unlikely to actually fund your recording, and couldn’t be said to be “making” the recording, they may be heavily involved in the creative process. many producers may also want a share in the copyright, or the royalties, arising from their work. If you engage a producer, you should agree both of these important matters in writing.
Session musicians and vocalists - if you involve session players in your recording process, and don’t agree in writing that they won’t own copyright or be entitled to record royalties, you could find someone claiming that they should be, as they were involved in the process! The simplest solution is a written “release” from copyright and moral and performers rights.
The Real Deal - Recording Agreements
If your wildest dreams come true, and you have landed a recording contract with a record company, additional issues start to arise. A label is more than just a “financier” who perhaps wants a share of income to repay their investment. A label will usually want more. Much more. In almost every case, a record label will present you or your band with a recording agreement to sign.
Before you sign away, like with managers or publishers you should consider the following:
- Is the label reputable? Whether it’s a major, independent, or newbie, is it well regarded, and do you have anyone who can tell you about the company from their own experience?
- Do they have good contacts? If they are going to do more than just “fund” you, will the record label be able to successfully play a role in promoting your record once released?
- Read each term of the contract carefully, and seek legal advice. Although its great to have the label’s interest in you and your relationship with the label “recorded” (ha ha!) in a written contract, remember, like anything in the music industry, it’s open to negotiation, and if you want to make changes, you should raise them now. See Contracts Generally.
A Rrruff! Guide To A typical Recording Agreement
The following information should help you understand the key clauses in a typical recording agreement, and help you prepare to talk to the record label about anything you consider needs to be changed. But, as the rights dealt with are very important, you should seek legal advice.
Essentially, a recording agreement binds you and your band to provide “personal services” to the label to record music (yours or someone else's). You become a contracted recording artist. In return, the label agrees to pay for the recording (and hence they’ll want to own copyright) and release it. They may even promise to promote it or support you in touring to promote it.
So, at the end of the day (i.e. 5am in the studio), pay attention to what you are agreeing to do.
Term and Option Periods
This is one of the most important clauses to consider, as it will determine how long you and your label will be working together, and you are bound to deliver. The “term” is usually set so there is an ‘initial period’ from the date of the agreement, and ending, say, 6 to 9 months after delivery to the label of your first ‘minimum commitment’ of recorded songs. This initial period is only the beginning, and is often followed by several successive ‘option periods’. An option period usually carries with it a further ‘minimum commitment’ for you to deliver in it.
Although these option periods, which extend the term beyond the ‘initial period’, are usually exercised at the record company’s discretion, but you may find a ‘wake-up’ clause, which puts an obligation on you to notify the record company about the upcoming option period.
It’s best to keep the term, including the number of option periods, as short as you can. Look carefully also as to how the term may be extended in other ways, for example, if you deliver, but the material is not to the record company’s subjective satisfaction. See Artistic Control.
Minimum Commitment
An artist will normally be required to produce a ‘minimum commitment” for the initial term, and each subsequent option period. This is usually an album’s worth of songs but usually no less than 10 songs. So, for example, a term with four option periods would mean you need to produce, at a minimum, 5 albums. Again, carefully consider whether, in addition to the time involved in other activities such as touring and promoting any one record, you will have the creative energy and time to deliver whatever is the minimum commitment in the time agreed.
Better still, if you’re new to a label, or its not a major, try to keep the deal to just one album.
Copyright
Remember that the person who pays for the sound recording is the owner unless it is agreed otherwise. That is usually your record company. The contract may usually also ask you to assign to the label any other rights in the sound recordings necessary to exploit the copyright. This assists a record label in being able to generate as much income in your record as it can.
This might include the cover art. If you supply and pay for your own cover art, you will own copyright in it unless you agree to assign it to the label. If you do keep these rights you won’t need to ask the label for permission if you want to use it for anything else, like merchandise.
Artistic Control
It may be important to you to have a say in the artistic direction of “your” record! Any kind of clause in a recording contract dealing with artistic control should be considered carefully.
If possible, try and include clauses requiring that any decision to, for example, bring in an arranger, is subject to your prior approval, or at the very least, you are properly consulted.
Beware of clauses that make acceptance of what you deliver subject to commercial or artistic acceptability by the record company. You may find that if a label dislikes it for any reason, you have to keep producing new songs or records, before you’re off the hook (and the label’s release obligations kick in). At the least, any acceptance clause should be based on a concept of “reasonability” and sets out a method for settling any disagreements over ‘quality matters’. Better still, the agreement may state that if what you deliver is technically OK, its acceptable.
Advances
Advances from a record label are often made to provide the artist with funding to record on. As with any “advance”, it is just that - an advance payment of the income expected from the album, and is most often fully recoupable from all royalties earned (i.e.. the artist’s royalties from sales are retained by the record label and applied to “off-set” the costs of the recording). These recoupable deals are standard, and keep labels and artists “tied” to costs of recording.
Be aware of clauses dealing with advances, and ensure that money spent on your behalf (but not actually paid to you) by a label is not treated as an advance without your approval (or at least, your knowledge). This is definitely an area to seek legal (or financial) advice on, but advance clauses should be clear on the amount involved, and how and when it is repayable.
You should make sure you get professional advice on how this works, and may affect you.
Royalties
Royalties from sound recordings are essentially based on sales of the recordings, but can also apply to licensing of the record (as opposed to the songs recorded on it - see Copyright page). Make sure you understand how your royalties will be calculated, as this can be very complex. As with publishing contracts, both the percentage and the “royalty base” must be considered.
It is also worth trying some rough calculations as to what you will actually receive, especially after recoupment of advances. You may be surprised how long it takes to clear your advance.
To back it all up, ensure that you have the right to inspect the label’s accounts, say, annually.
As set out above, it’s a very good idea to get professional advice on this aspect of your deal.
PPCA
PPCA stands for the
Phonographic Performance Company of Australia, which is responsible for licensing the ‘communication’, ‘broadcast’ and ‘public performance’ of sound recordings on behalf of the copyright owner of a sound recording (which is usually the record company). The PPCA is like
APRA, except it administers copyright in “sound recordings”, not songs.
The PPCA distributes most of the money it collects to record labels (ie. who own copyright), but it also distributes a portion direct to artists on a recording, if they are registered under the “
Artist Distribution Scheme”. If you have not registered with PPCA, all the income will be sent directly to your recording company (or whoever holds the copyright in your recordings) to be distributed in accordance with your recording contract (i.e.. most to them, some to you).
Obligations of the Record Company
Under a recording contract, the reality is that you’ll have to do all the hard work in producing the minimum amount of recordings in each period, your record company should be obligated under the contract to release the record within a certain timeframe and in certain territories. If it’s part of the deal, it should also be required to promote it and the artist, including by tours.
The territory is important, and there could be an obligation on the label to seek arrangements with international labels to distribute the record in any overseas country you wish to target. Or, you might want to include a clause stating that if your label doesn’t line up any overseas distribution within say a certain time, you can do so directly with any label you might know.
The obligations on your label in the agreement will serve both to make it clear what you will get out of the deal beyond just funding to record, and may help you terminate the contract (in or outside a termination clause) if your record label is not performing its side of the bargain.
Termination
Make sure there is a termination clause in the agreement that allows you (not just your record label) to terminate if the label has breached its obligations under the agreement. Usually there will be a ‘cure period' of 30-60 days, giving the label a chance to remedy any breach, but if it is not cured within that time, you can terminate the contract. If you don’t have a clause of this kind, you’ll have to rely on a serious breach of a specific obligation to terminate the contract.
Dispute Resolution
Recording agreements are contracts for personal services, meaning that they involve an artist providing special skills to make a recording. This sometimes leads to differences in opinion as to, for example, what songs are to be included on the record, or how best to promote it. If things like this do occur, it is useful to have a dispute resolution clause in your contract that suggests a path for the parties to find a solution, for example by mediation or arbitration. You may otherwise get bogged down in the issues and the contract, with no way out of the mess!
Other Clauses
A record label may want to able to assign its rights under the contract to others. Ideally, this should only occur with your prior, written consent - so you know who you’ll be obligated to! Or, the contract may restrict an assignment to a related company of the record label, and state that any new company will agree to perform the first label’s obligations under the contract.
A Final Word
Recording is exciting, especially if someone else wants to pay for it and release it. But there is a lot at stake, so make sure you consider agreements about recording properly. Negotiate.
The information above is only an overview of recording contracts, and as the ol’ saying goes, “the devil is in the detail”. It is definitely best to get legal advice on any recording contract.
Further Information and Advice