Entertainment Law Mentor: Negotiating Exclusive Songwriting Agreements

Contents

Title Page

Copyright

Quotes

Acknowledgements

Important Information

Preface

I. Introduction

II. Songwriting and Music Publishing

III. The Agreement

The Opening Paragraph

1. Engagement of the Writer

2. The Term of the Contract

3. Grant of Rights

4. Exclusivity

5. Warranties

6. Exploitation

7. Power of Attorney

8. Compensation

9. Accounting

10. Collaboration with other Songwriters

11. Writer’s Services

12. Unique Services of Writer

13. Claims and Law Suits

14. Notices

15. Entire Agreement

16. Modification. Waiver, Invalidity and Controlling Law

17. Assignment

18. Definitions

19. Headings

20. Advances

21. Legal Counsel

22. Suspension and Termination

23. Cure Period

24. Minimum Delivery Commitment

25. No Outstanding Advances

26. Attorney’s Fees

Schedule A

IV. Conclusion

Appendix A – Exclusive Songwriter Agreement (The Original Agreement)

Appendix B – Exclusive Songwriter Agreement (The Plain English Agreement)

Appendix C - Assignment of Copyrights

Appendix D - ASCAP Letter of Direction

Appendix E - BMI Letter of Direction

Appendix F - SESAC Letter of Direction

Appendix G - General Direction Letter

Entertainment Law Mentor

Negotiating Exclusive Songwriting Agreements

By

C. Stephen Weaver

This book is available in print at most online retailers.

Copyright

Exclusive Songwriter Agreement Negotiation Guide

Copyright C. Stephen Weaver 2012

Published at Smashwords by C. Stephen Weaver

All rights reserved. This book or any portion of it may not be reproduced or used in any manner without the express written permission of the publisher except for the use of brief quotations in book reviews or mentions of the book.

Smashwords Licensing Statement: This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it was not purchased for your use only, then please return to Smashwords.com and purchase your own copy. Thank you for respecting the hard work of this author.

A Few Quotes About the Book

There are lots of books on the music business. Most of them are worthless. Steve Weaver's book on negotiating publishing agreements is priceless. This is a step by step guide that can be used by songwriters, publishers and attorneys. I wish this book had been around when I started practicing law.

—— Sawnie Trip Aldredge, Esq., Entertainment Attorney, Nashville Tennessee

A thorough and informative guide to understanding and negotiation of the essential provisions of a songwriter agreement.

—— Duff Berschbach, Esq., Senior Vice President, Business Affairs, Nashville, Sony/ATV Music Publishing LLC

I have known and worked with Steve on many music business deals for many years, usually he was representing the songwriter and I was representing the music publisher. Steve's knowledge of the music industry is vast, and I have learned much from negotiating with him. Steve knows what items are important, and is one of those very few attorneys who always manages to cover both the short term desires and the long term needs of his clients. I wish this book had been available at the beginning of my career.

—— Joseph F. Brazil, Esq., Law Offices of Joseph Brazil PLLC (Former In-House Lawyer and V.P. of Business Affairs for Major Record Label and Music Publisher)

I’ve enjoyed working with Steve over the past 30 years while negotiating deals between our clients. He was always insightful and this book is a reflection of his knowledge and experience in the music industry. I would recommend this to anyone who wants to learn more about the songwriter publisher relationship.

—— J. Rush Hicks, Attorney and Chair of the Music Business Program in the Mike Curb College of Entertainment and Music Business, Belmont University

Steve, what a great gift to those who are trying to decipher the convoluted world of music publishing!. This book will be one of those 'must haves' for people wanting to learn how we get to a fair resolution of a publishing contract. Tim W

—— Tim Wipperman, CEO Wipperman Music Group (Former Executive VP/Executive GM, Warner Chappell Music (29 years); Former Chief Creative Officer and President, Equity Music Group)

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ACKNOWLEDGEMENTS

Thank you . . .

To my God for gifting me with creativity and the strong desire to be of service during this journey.

To Professor Daniel Wanat at the Cecil C. Humphreys School of Law for teaching me to write with precision and clarity.

To Dean Charles Hopkins at Georgia State University for giving me the opportunity learn to be a teacher and mentor to the many students I encountered in my days as a professional educator.

To Joel A. Katz, Esq. for giving me my first job as an entertainment attorney and sharing with me his knowledge and skills.

To Joel Cherry, Esq. for being my day-to-day mentor during my years at the Katz firm.

To my assistant, Brittany Dunbar for the pain she must have endured reading and editing this book many times – and for her many valuable suggestions that came from those readings.

To my wife Connie for throwing out the query many times . . . Why don’t you write a book? Thank you for believing in me and for all your great ideas!

To my colleagues and friends, Trip Aldredge, Esq. and Joe Brazil, Esq. for their encouragement and suggestions.

To my business coach, Tara Rodden Robinson, for helping me to stay on track and for sharing her own experiences and tips as an author.

To Augusto Pinaud for sharing with me what he has learned about being a self-published author.

To my friend and client, Jason Blume, for reading the book and offering helpful suggestions based on his personal experience as a songwriter, author and teacher.

To all of the attorneys over the years who have been on the opposite side of the table in negotiations – you may have been my ultimate teachers.

To Mamaw Weaver for always telling the little boy Steve to be somebody.

To all the rest of you who are not listed, please know you are not forgotten, and that I appreciate each and every one of you. My collective experiences with you all have shaped me into the person I am today, and I sincerely thank you."

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IMPORTANT INFORMATION

The Exclusive Songwriting Agreement which I have printed in this book includes various clauses from agreements I have seen during the course of my career. You are not likely to be presented one exactly like this one unless it is copied from this book. Percentages, advances, royalties, major deal points and other issues and practices in the music and entertainment industries are very fluid and change frequently. Therefore, please do not assume the ones in this book are based on current trends in the music industry. Many pre-publication readers are convinced that this book is not only for attorneys and law students, but also for songwriters and music publishers. This book does not provide legal advice. Unless you are an attorney I caution you not to act on the information in this book without seeking the advice of competent legal counsel. This book is not intended to create and your use of this book does not constitute an attorney client relationship between you and me.

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PREFACE

I have been a transactional entertainment attorney since 1980. As I have gained more experience I have noticed the number of inquiries from young lawyers and law students have increased. The content of this correspondence ranges from offers to intern with me to proposals to pay me to teach the inquiring attorney how to be an entertainment lawyer. Often the person contacting me is an attorney who practices in an area of law other than entertainment but who has been approached by an artist or songwriter for help. The lawyer wants to expand his or her practice into the entertainment law area and is writing me for help on the specific matter presented by his or her new client. While I do get contacted frequently by songwriters and music publishers as well, those inquiries are generally with regard to retaining my services as their entertainment attorney rather that requesting that I teach them them to negotiate the details of the agreements they are offered or are offering. Nevertheless, it is my belief that this book will be of benefit to the songwriter and music publisher who want to understand in more detail the different provisions in the exclusive songwriter agreements and why their attorneys deem the contract provisions worthy of detailed analysis and negotiation. If you are one of those readers please read the foregoing page headed Important Information. Then jump in the trenches with the rest of us!

I was fortunate to have been mentored in entertainment law by Joel Katz and Joel Cherry, then the senior associate at Katz & Weisman, PC. The primary purpose of this book is to provide the lawyer and law student with a guide to negotiation of an exclusive songwriting agreement. I have put into writing the types of information that I have learned from mentors, colleagues and opposing counsel over the years. To the best of my knowledge, this is not taught in law schools nor contained in any other book. Hopefully this guide will also be of some benefit to music publishers, personal managers, business managers and songwriters themselves who have the time and inclination to learn more about the process and the reasoning behind songwriting contract negotiation.

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INTRODUCTION

There are three primary forms of Agreements between a songwriter and a music publisher. These are the Exclusive Songwriter Agreement, the Co-Publishing Agreement, the Single Song Agreement and the Administration Agreement. The purpose of this book is to give an example of and explain the Exclusive Songwriter Agreement and to provide negotiation suggestions. The negotiation suggestions are not all inclusive. Other attorneys might have some excellent suggestions that I do not have. The Agreement will be reproduced in sections. First will be the exact duplication of the way the particular section reads in a typical agreement of the type that is being discussed. This is called Contract Clause. I will then re-write the section in plain language--Plain English. Then I will explain what that particular section means and its significance. That is called What It Means. Beginning with the basic premise that everything is negotiable, I will then tell you what each party wants the section to say. My headings will be What The Writer Wants and What The Publisher Wants.

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II

SONGWRITING AND MUSIC PUBLISHING

When I was a young songwriter with only the slightest notion of being an entertainment attorney it was explained to me that the songwriter writes the songs and the music publisher does the business and that they divide the money equally. That is still a good and simple explanation of the songwriting and music publishing business. By doing the business it is meant that publishers carry out some or all of the following functions.

Publishers are responsible for exploitation of the songs. That means doing whatever is necessary to cause the songs to generate income for the writer and the publisher. In the popular music industry that function has primarily been pitching the songs to industry persons in a position to get the songs recorded by successful artists. This would include record company a&r representatives, producers, managers and the artists themselves. Publishers also license the songs for film and TV synchronization, print and any other medium that will generate income from the song.

Publishers often have creative staff who will critique and give young writers suggestions for making their songs more commercially viable. These same people might help the writer set up valuable co-writing sessions. They are usually the same people who are responsible for pitching the songs as explained in the previous paragraph.

Publishers also finance songwriting careers by advancing funds to the writers so that they will have a guaranteed regular income. This has traditionally been critical for the development of beginning writers. These developing writers are given a sufficient living advance so that they may devote their full time to developing their craft. Unfortunately, as album sales have declined in the industry, the publishers have had to greatly restrict the number of new writers they support and develop. However, proven writers are still able to obtain reasonable advances for entering into exclusive songwriting agreements and co-publishing agreements with publishers.

Publishers finance the production of demonstration recordings (commonly referred to as demos). This can add up and can be a very significant contribution to a writer’s career. A portion of these costs is normally treated as an advance to the writer and thus will be recouped later from the writer’s share of royalties to be paid by the publisher.

Finally, publishers are the administrators of the songs. They negotiate and issue licenses to record companies and others wishing to utilize the songs. They handle copyright registrations and other legal matters necessary to protect the songs. And they collect and distribute the income.

Hopefully this brief overview will be sufficient to enable you to understand the basics of the songwriting and music publishing industry as well as the purpose of the Exclusive Songwriter Agreement.

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III

THE AGREEMENT

Exclusive Songwriting Agreement

THE OPENING PARAGRAPH

CONTRACT CLAUSE:

THIS AGREEMENT made and entered into as of the 1st day of January, 2011 by and between Music Publishing Company, Inc., whose principal place of business is at 11111 Music Avenue South, Nashville, Tennessee 37203 (hereinafter referred to as ''Publisher''), and Mr. Songwriter, whose address is 22222 Hopes-N-Dreams Court, Nashville, Tennessee, 37222 (hereinafter referred to as Writer).

PLAIN ENGLISH:

THE DATE of this Contract is January 1, 2011. This contract is between Music Publishing Company and Mr. Songwriter. To save space Music Publishing Company will be called Publisher in the rest of this Contract and Mr. Writer will be called Writer. Publisher's address is 11111 Music Avenue South, Nashville, Tennessee 37203. Writer's address is 22222 Hopes-N-Dreams Court, Nashville, Tennessee, 37222. [I capitalized and bold-faced THE DATE because it looks pretty and is easier to find.]

WHAT IT MEANS:

The opening paragraph provides important information:

1. The Date of the Contract. The date is