A practicing entertainment attorney for thirty years, Trip Aldredge may not have seen it all but he’s certainly seen more than most of us. Take a look below at his piece on situations where songwriters should consider consulting a music attorney. For more of Trip’s articles, take a peek at his blog as well.
I seem to spend an inordinate amount of time trying to gently convince songwriters and artists that it is a good idea to have contracts reviewed by an attorney. The reason is that even the simplest agreement can have long range implications.
Most songwriters are familiar with single song agreements and most understand the concept of a reversion clause (i.e. if the publisher does not “exploit” your work within a specified amount of time you have the right to demand a reversion of the copyright to that work). A reversion clause is important in a single song agreement because typically the publisher does not pay the songwriter an advance for the song so the only legal consideration for the agreement is the publisher getting the song placed. If this doesn’t happen then the writer should get the song back. However the entire concept of “exploitation” has changed in the digital age as have most of the old benchmarks. It pays to have an entertainment lawyer ensure that the terminology in the contract is up to date so that your reversion clause actually means something.
Another issue that seems to arise occasionally is where a publisher terms a copyright assignment a work made for hire. Such terminology could eviscerate a writer’s termination rights and deprive the writer or their heirs of their federally protected property rights. To take this a step further, it is well worth it for a songwriter to understand termination rights in general, even if the statute is mind numbing. That’s what lawyers are for.
Exclusive songwriter agreements and co-publishing agreements can be potential minefields. Some of the more thorny issues include those such as what items are recoupable. Recoupment means that the publisher can reimburse himself certain costs from the writer’s royalties. The writer needs to have a handle on which of these costs can be reimbursed. Other important issues include the number of options granted to the publisher, how administration is handled both in the U.S. and abroad, who pays for the demo, who owns the demo and one of my personal favorites, the extent of the writer’s indemnity. I predict that the indemnity clauses in agreements are going to become more and more important as litigation seems to increase in the music industry. In a co-publishing agreement, the writer needs to make sure that the royalty splits are fair and that there are no hidden fees. These type of agreements are particularly susceptible to manipulation.
The bottom line is that all of these elements require scrutiny. Clearly the cost of hiring an attorney can scare off many people, especially in this era where publishing advances are being scaled back. I have looked at two exclusive agreements this week that offered little or no advance. However, most attorneys are sensitive to this issue and are willing to work out an equitable fee arrangement with a songwriter. Don’t be afraid to ask. Most attorneys I know are happy to help writers and artists avoid a bad deal. Also as an alternative, many music centers like Nashville have volunteer lawyers panels – essentially pro bono legal aid – for songwriters who cannot otherwise afford legal services. If your financial situation warrants it, this is a great alternative. It is just silly not to seek legal advice when you sign any important legal document concerning your career.