When it
comes to any kind of music contract, songwriters are typically advised to
consult an attorney. In the case of Work for Hire (W4H) agreements, a budget
that has no room for attorney fees has forced a longtime songwriter like myself
to resort to DIY. The cost of a demo is high enough. Those of us who are not
performers already shell out hundreds of dollars, sometimes more, to pay for studio,
engineer, musicians, singers and/or producer. Yes, even in the Pro Tools era.
But a
company looking specifically for film/TV music does not want to deal with any
material that will leave it vulnerable to a legal suit from parties who
contributed to the recording. So the first question about any song you pitch in
that category is: do you have clearance? The answer is: no, unless you have a signed
W4H. Ergo, obtaining this agreement has now become routine for me with any demo. Here’s what I’ve learned.
What is
a W4H?
A W4H is
all about ownership and therefore, all about money. Like publishing contracts,
there is no one size fits all. As the songwriter and publisher, I do own the
copyright of my song but not necessarily the actual recording unless I paid the
performers a master rate that, like the attorney, equates to a fortune. A W4H
agreement clarifies what rights I have to ownership and use of the recording.
Who
gets paid what?
This is a
murky area and depends on what you can negotiate. I have multiple versions on
file. In one, a singer requests an upgrade payment for the difference between
the demo rate and master rate if the demo is used as is. Incidentally, I like
to make sure that in any W4H, the singer grants permission to use his or her
name as the performer, just in case. I don’t want any legal problems either.
In another
version, a producer stipulates that the demo can only be used for demonstration
purposes with a provision that, in the case of interest in use of the existing
recording, the upgrade price will be set solely by him. That price can amount
to thousands of dollar. Plus, if some artist wants to use the track and only
rerecord the vocals, not uncommon these days, this producer wants to be paid a set
fee for release of the digital files (important for remixing) as well as for
use of the produced instrumental track. The problem is that demo costs don’t
get repaid first.
If you
have an agreement that states you have to upgrade any musicians to the master
scale rate set by the American Federation of Musicians (AFM), that
amount too can be more than the film/TV company has budgeted for a track. An
alternative is to give the performers a percentage of the earnings from
synchronization fees and master use. The problem is that demo costs don’t get
repaid first. Are you sensing a pattern here of how songwriters end up with the
short (expensive) end of the stick?
The most
pro-songwriter agreement is one in which everyone who worked on the track
agrees to that one time payment with no entitlement to any future royalty earnings.
In other words, those involved give the songwriter complete ownership rights to
the recording.
Consider
co-writing credit
If you
work with one producer on a track, either as a songwriter and/or an artist, and
if that producer makes a major contribution to recording, you can consider
giving him or her co-writing credit. I definitely have done that on numerous
occasions even though the producer did not write the music or lyrics. Yes, you
will need to put that into writing and share ownership of the copyright too.
The U.S.
Copyright Office does provide a PDF
on W4H agreements if you want to read more on the subject.
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