San Francisco Intellectual Property Blog
The Internet has created exciting new opportunities for artists to distribute their music to the world, but cyberspace is not without its share of hucksters ready to trick artists into signing away all ownership rights to their music for a song.
A musician recently came to me to review a recording contract that had been offered to him from an independent record company. Although the artist had already recorded the CD of his original compositions, he wanted a record label to distribute his CD.
He thought he was signing a distribution deal. But buried in the back of the contract was a clause requiring the artist to assign all of his publishing copyrights in the music to the record label. Although the contract was labeled as a “Exclusive Recording Agreement”, it was in fact, also a Publishing Agreement, and this distinction is worth everything to an artist.
Artists, resist this contract language with your life!:
“If ARTIST writes and/or composes any of the songs recorded under this agreement, ARTIST agrees hereby irrevocably and absolutely assigns, transfers, sets over, and grants to COMPANY its successors, and assigns each and every and all rights and interests of every kind, nature and description in and to the results and proceeds of ARTIST Writer’s services hereunder, including, but not limited to the titles, words, and music of any and all original arrangements of musical compositions in the public domain in any and all licenses relating thereto, together with all worldwide copyrights and renewals and extensions thereof, which musical works have been written, composed, created, or conceived, in whole or in part, by Writer alone or in collaboration with another or others, and which are now owned or controlled, directly or indirectly by Writer, alone or with others, or as the employer or transferee, directly or indirectly, of the writers or composition, and all worldwide copyrights and renewals and extensions thereof, all of which ARTIST does hereby represent are and shall at all times be COMPANY sole and exclusive property as the owner thereof free from any adverse claims or rights therein by any other person, firm or corporation. A separate songwriter agreement will be signed for all musical compositions written and made by ARTIST during the term of this agreement.”
Who can’t understand a sentence that is 23 lines long?
So while this Artist thought he had been offered a distribution deal, he was actually given a contract that would have transferred all of his publishing rights to this label forever. And any music he writes in the next 4 years would also belong to the label. Besides taking all rights to his music, the contract would not have allowed him to record with anyone else either. What great inducement was this label offering the artist as an advance to give up all of his rights? Nothing – $0 advance. Just old-fashioned artist exploitation.
A little background on copyright. There are several copyrights to a piece of recorded music, and these copyrights are often owned by different people or entities. There is the copyright on the song itself, the musical composition and the lyrics, and this makes up the Publishing Rights to the song. The author of the song, typically a songwriter or her publishing company, is the owner of the copyright on the song. So the artist who composed the song typically owns the publishing rights to the music.
Then, separate from the publishing rights, there is the copyright on the sound recording of the music. The copyright on the sound recording is typically owned by the record label who makes the recording. So the artist typically owns the copyright on the song, while the label typically owns the copyright on the recording of the song.
There are exceptions to this generalization. Sometimes artists assign a portion of their publishing rights to a major label’s publishing company if the label offers a sweet deal, like a large cash advance or access to major distribution channels.
But any reputable record company will not try to mask a publishing deal by labeling it a recording agreement and then bury the clause that transfers all of the artist’s publishing rights to the company in an unlabeled and unintelligible clause near the end of the agreement.
The real insult to injury in this case is that this record label markets itself online as a ‘label that protects artist’s publishing rights’. Ironically this label’s president said the terms of the contract (which take away all of the artist’s publishing rights) are “not negotiable”.
A label that engages in such deceptive practices risks becoming a defendant in a class-action lawsuit by disgruntled musicians who eventually realize they have been ripped off. Besides being an unfair and deceptive trade practice, the labels’ conduct violates Section 17200 of California Business and Professions Code.
