The purpose of this column is to provide career guidance from the perspective of an entertainment lawyer. The information presented here is not intended to be legal advice nor an overview of how to write, negotiate or interpret contracts. Rather, each article addresses issues like business relationships, considerations when seeking legal advice, and in general, a "backstage" informal dialogue about the realities confronted in pursuing a career in today's music business.
A letter recently came from a reader of this column with a "getting started" question probably indicative of situations which you may recognize. It also demonstrates as you also should well know, how hard some musicians work for too little money trying to become successful. Knowing what direction to follow is vital information to have, and it is evident that many aspiring musicians are in need of advice on the basics. It is precisely for this reality that this column focuses on providing a frame of reference for career development, not merely "how can I get a deal." If your first deal is your last deal, that will hardly a make a career. On the other hand, if you work to develop your career, a deal is far more likely to come.
JK writes from Texas: "I am a studio owner, engineer, songwriter, producer, publisher and musician. I often am in situations where clients come to me without material and want a demo or sometimes something they can release as a single. I write, arrange, give vocal lessons, produce this entire project (2 to 3 finished tunes). For my time and effort I am paid $xxxx.. Who owns what? Another scenario might be the same, except the client has lyrics and melody. Who owns what?"
DEAR JW: The first thing I would say is, raise your rates, or don't quit your day job. Of course, we are looking at different economies from New York, but Texas is not that far away, so why is this reader giving his work away for nearly free? As we have alluded to in previous articles, each service which is provided is a different function, and without looking too far, see what services are being provided in this scenario - studio time, engineering, producing, composing, arranging, and instrumental performance, and even vocal lessons.
It is not uncommon for a musical producer to take on multiple tasks in a project, and often with their own equipment, which seems to be what is happening here. However, unless we are talking about beginners or novices, even a "flat rate" for providing all the services mentioned, should be higher and per track. At $xxxx for the entire job, how would you even run your studio.
Instead of your method of billing, I would recommend charging an hourly rate for the studio and add on each additional function in an "a la carte" fashion, that is so much for production services, engineering (which can come along with the studio per hour fee), then consider arranging and playing on the tracks, and of course don't forget the vocal lessons!
If tying it together as producer, by all mean charge for that. While you can still produce songs on a "per track" basis flat fee (instead of "a la carte"), you must charge for your services, or your career will never get off the ground. It does not take long to learn that no one respects professional work which is given away for free.
So although the question is a good one, i.e., who owns the work product, let's start with first things first, and improve your business by ceasing to offer your talent for free. It is apparent you need business guidance, but with your current rates, a legal consultation might cost more than the project fee, so you had best reconsider your billing approach.
With regard to who owns what, there are two main property rights involved here - first the sound recordings, and secondly the compositions. A fair view is generally, that unless there is an agreement to the contrary, the client owns the sound recordings. However, in your case, since you are providing so many services at such a low rate, the argument can be made that in consideration of providing your services at a nominal rate, the studio should own the sound recording. Of course this has to be agreed upon up front, and better do it in writing.
This approach is not unlike a wedding photographer owning the negatives from the wedding. When you want to make copies or put together a book or slide show of the wedding, you pay the photographer for each use. While this approach may not seem practical for music clients, who will want unlimited use of their recordings, this is the position I would take.
It sounds like you essentially "subsidize" your clients projects. If your client is not happy with you owning the sound recordings, then let the client own the sound recordings by paying you more than you are currently charging. You have just established a bargaining position to charge more - for the studio time, engineering, production, arrangement, and session fees. In return, your client can and by all means should own the sound recording, and that is the way it should be as long as you are paid for your services.
We have not yet discussed ownership of the composition, one of additional assignments you have undertaken for your lucky clients, in addition to arranging, producing and playing the parts. In general, if you write a song, you own it, unless your are paid a specific fee or commissioned to write the song as a "writer for hire," but I have not heard you describe anything resembling that situation. Keep in mind, that owning the tracks or the songs in themselves may not put a penny in your pocket if the quality of the tracks, the performance or the song is not there. Rather than get carried away on the "residuals", first get paid for your services. If you remember to never give your work away for free, you will stand little risk of writing a song and then giving up the rights for insufficient consideration (money). It is wiser to get paid for your services, and move on to the next client.
My recommendation is to charge your clients for the studio, and itemize separate charges for all the other services you provide. Come up with a fee which is fair to you, not just a gift for your clients. They will respect you more in the end, and you will become better at what you do, as a result of competitive necessity.
It would certainly serve you well to read some music business books and consult with an attorney for more specific legal advice (which you definitely need) and business adviser to analyze your business situation in greater depth. If for your own reasons are reluctant to increase your rates and method of charging for your services, I suggest you enroll for courses in studio production and business to provide you the level of confidence to take the next career steps. Good luck to JW and all of you working from the ground up to build a career in the music business.
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Robert Rosenblatt
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© Copyright 1997 Robert Rosenblatt
