This is the last posting I will do on the question of what a Producer's Agreement might look like. There are two (2) other posts recently about this topic, which you can look up in my archive. This is the largest section about this type of Agreement.
4. OVERRIDE ROYALTY
(a) In the event Producer is not engaged to produce the Artist’s Masters for Record Artist, and one (l) or more of the Recordings (even though edited or re-mixed) is commercially released by Record Artist, Producer shall be entitled to a three (3%) percent royalty override of the suggested retail list price ("SRLP") of records embodying any Artist Recording hereunder and sold through normal retail channels throughout the United States ("USNRC") and not returned. Such royalty shall be paid on all singles and for LP’s shall be computed on a pro-rated basis, with the numerator to be the number of Artist Recordings and the denominator to be the total number of masters on the record. Producer shall also be entitled to receive applicable credit for the Recording(s) embodied in said record.
(b) Artist agrees to use it’s best efforts to cause Record Artist to pay all royalties due to Producer hereunder directly to Producer and Artist agrees to execute letters of direction and any and all other instruments necessary to effectuate same.
5. NO ADDITIONAL COMPENSATION; ACCREDITATION
(a) The compensation set forth herein is full and complete payment to Producer for all services and rights in respect of the Work. No additional sums will be due to Producer or any other entity as a result of the exploitation of the Works.
(b) As additional consideration, Artist shall use it’s best efforts to have Producer credited as a "producer" and shall give Producer appropriate production and songwriting credit on all compact discs, record and cassette labels or any other record configuration manufactured which is now known or created in the future that embodies the Masters created hereunder and on all cover liner notes Artisting any records containing the Masters and on the front and/or back cover of any Album listing the Masters and other musician credits. Such credit shall be in substantial form: "Produced by________________________.”. Artist shall use its best efforts to ensure that Record Artist properly credits Producer and Artist shall check all proofs for accuracy of credits, and shall use its best efforts to cause Record Artist releasing the record to cure any mistakes regarding Producer's credit on the next print run of such materials. If Artist fails to comply with this clause in any instances or sole obligation to Producer by reason of such failure Producer's sole remedy is to have Artist add the appropriate credit. Artist shall provide Producer with five (5) copies of the completed Records within thirty (30) days after manufacture of the Record to review for accuracy.
6. SONGWRITING; CONTROLLED COMPOSITIONS
(a) Producer shall be considered the author of the music recorded on the Masters recorded hereunder which are written or composed by Producer, in whole or in part, alone or in collaboration with Artist or with others. Such ownership percentage shall be accorded to Producer in accordance with Producer's percentage of authorship based on the copyright laws of the United States and as set forth on Schedule “A” attached hereto. Appropriate credit as a song writer and author of the music showing author's performance right society affiliation shall be given to Producer based on the songs produced and created under this Agreement. If Producer is the sole writer of the music produced under this Agreement, then Producer shall have the right to prepare and file copyright registration forms for the music produced under this Agreement. Producer shall provide Artist with a copy of the filed registration form upon receipt by Producer of the filed form from the Copyright Office. Artist shall have the right to incorporate lyrics with the music created hereunder to create a new song (“New Song”) and Artist shall have the right to give the New Song a new title and register the New Song for copyright, providing Producer the copyright credit in the music in the New Song as set forth in this Agreement. If Producer contributes original lyrics to the compositions recorded, he shall receive a pro-rata share of the songwriter credit, and associated publishing, with any other original lyricist, and it shall receive a pro-rata share of the songwriter credit, and associated publishing, with any other original composer, unless all songwriters agree in writing to another division of writer credit. Claimed percentages of authorship for each title are set forth in Schedule A hereto. Any compositions to which Producer contributes songwriting are referred to herein as "Controlled Compositions”.
(b) Subject to the terms of this agreement, Producer member hereby retains his publishing rights in connection with his share of all compositions and Artist further grants to producer the right to participate and be present during all negotiations with Record Artist and/or any other person or entity with whom Artist may enter into negotiations regarding the sale, license or distribution of the Masters to be produced hereunder.
7. WARRANTIES AND REPRESENTATIONS
Producer and Artist hereby make the following representations and warranties:
(a) Producer has the full right and ability to enter into this Agreement, and is not under any disability, restriction, or prohibition with respect to the grant of rights hereunder.
(b) Producer warrants that the manufacture, sale, distribution, or other exploitation of the Masters hereunder will not infringe upon or violate any common law or statutory right of any person, firm, or corporation; including, without limitation, contractual rights, copyrights, and right(s) of privacy and publicity and will not constitute libel and/or slander. The foregoing notwithstanding, Producer undertakes no responsibility whatsoever as to any elements added to the Masters by Artist and/or Artist, and Artist indemnifies and holds Producer harmless for any such elements.
(c) Producer warrants that he shall not "sample" (as that term is commonly understood in the recording industry) any copyrighted material or sound recordings belonging to any other person, firm, or corporation (hereinafter referred to as "Owner") without first having notified Artist and obtaining Artist’s consent. Artist shall have no obligation to approve the use thereof; however, if approved, any payment in connection therewith, including any associated legal clearance costs, shall constitute an additional recording cost and expense and shall be borne by Artist, recoupable from royalties hereunder. Knowledge by Artist that "samples" were used by Producer which were not affirmatively disclosed by Producer to Artist shall shift, in whole or in part, the liability for infringement or violation of the rights of any third party arising from the use of any such "sample" from Producer to Artist. At Artist’s request, Producer shall cooperate with respect to any matters concerning "sampling" which may arise hereunder.
Parties hereto shall indemnify and hold each other harmless from any and all third party claims, liabilities, costs, losses, damages or expenses as are actually incurred by the non-defaulting party and shall hold the non-defaulting party, free, safe, and harmless against and from any and all claims, suits, demands, costs, liabilities, loss, damages, judgments, recoveries, costs, and expenses; (including, without limitation, reasonable attorneys' fees), which may be made or brought, paid, or incurred by reason of any breach or claim of breach of the warranties and representations hereunder by the defaulting party, their agents, heirs, successors, assigns and employees, which have been reduced to final judgment; provided that prior to final judgment, arising out of any breach of any representations or warranties of the defaulting party contained in this agreement or any failure by defaulting party to perform any obligations on its part to be performed hereunder the Non-defaulting party has given the defaulting party prompt written notice of all claims and the right to participate in the defense with counsel of its choice at its sole expense. In no event shall Artist be entitled to seek injunctive or any other equitable relief for any breach or non-compliance with any provision of this Agreement.
9. ACCOUNTING AND AUDIT
Payments and royalties earned and payable, if any, shall be accounted for and paid to Producer (or Producer's designee, as applicable) within thirty (30) days after the end of each respective calendar quarter ending March 31, June 30, September 30 and December 31, or in accordance with such accounting period as designated pursuant to Recording and/or Distribution Agreement, and royalties shall be paid and accounted for within thirty (30) days after the end of each respective calendar quarter in accordance with the terms as set forth therein. Artist shall have the right to retain, as a reserve against subsequent charges (said reserve not to exceed thirty (30%) percent), credits or returns (collectively "returns"), a reasonable percentage of royalties otherwise payable hereunder; provided that said reserved amount shall be liquidated fully by the fourth accounting period following the period for which the reserve was first established. Producer, or a certified public accountant on Producer's behalf, may at Producer's cost and expense examine Artist's books relating to the sale or other distribution of Records hereunder solely for the purpose of verifying the accuracy of any statement rendered, only during Artist's normal business hours and upon reasonable written notice. Artist's books relating to any particular royalty statement may be examined within two (2) years after the date a statement is rendered by Artist to Producer. Artist shall immediately pay the balance due of any understatement of royalties paid or payable as revealed by such examination.
10. Parties hereto agree to save, defend, indemnify and hold each other and any of their Artist’s, agents, heirs, successors, assigns and employees free, safe, and harmless against and from any and all claims, suits, demands, costs, liabilities, loss, damages, judgments, recoveries, costs, and expenses; (including, without limitation, reasonable attorneys' fees), which may be made or brought, paid, or incurred by reason of any breach or claim of breach of defaulting Artist's warranties and representations hereunder which have been reduced to final judgment; provided that prior to final judgment, Artist shall be entitled to withhold royalties otherwise payable in an amount equal to Artist's reasonably estimated exposure in connection with such claimed breach by Producer, and provided further that if no legal action is commenced in connection with such claim of breach within one (1) year after notification to Artist of such claim, then Artist shall release all royalties so withheld. As an alternative to the withholding of royalties, Producer shall be entitled to post a bond for the benefit of Artist in an amount equal to Artist's reasonably estimated exposure. Parties shall be entitled to designate any defense attorneys engaged in connection with any such claim or action.
If any provision of this Agreement shall, for any reason be illegal or unenforceable, then and in such event, the same shall not affect the validity of remaining portions and provisions of the Agreement.
12. RELATIONSHIP OF PARTIES
Nothing contained herein shall be construed to constitute a partnership or joint venture between the parties hereto, and neither Artist shall become bound by any representation, act, or omission of the other.
This Agreement shall be deemed entered into within the State of _______________and shall be construed in accordance with and governed by the laws of that State and/or by U.S. federal law.
All notices which either party may desire or be required to give hereunder, shall be in writing and sent by certified mail postage prepaid. Notice shall be deemed effective five (5) days after posting. (A simultaneous transmission of all notices and statements via facsimile is recommended.) The address of the parties for all notices, statements, and payments shall be as first set forth above.
15. ATTORNEY'S FEES
In the event of any controversy, claim, or dispute as to the terms of this Agreement, or the subject matter thereof, or breach, thereof, and/or litigation resulting there from, the prevailing party shall be entitled to recover from the other party reasonable attorney's fees and costs resulting there from.
16. ENTIRE UNDERSTANDING
This Agreement sets forth the entire understanding between the parties regarding the subject matter hereof, and cannot be modified except by written instrument signed by the parties hereto. This agreement may be executed in counterpart and shall have the same validity, force and effect as if executed in whole.
The headings set forth herein are for convenience only and shall not be construed as defining the terms and conditions contained hereunder or utilized to assist in the interpretation of any ambiguity or ambiguities contained in any of the provisions of this Agreement.
18. FUTURE DOCUMENTS
The parties hereto agree to execute any and all further documents, which are necessary, required or desired to make this Agreement effective and binding upon the parties hereto and which are necessary, required or desired for the performance of any of the terms or conditions hereof.
19. NOTICE AND CURE
(a) If Artist fails to account for and make payments hereunder and such failure is not cured within thirty (30) days after written notice thereof to Artist, or if Artist fails to perform any other obligations required of it hereunder and such failure is not cured within thirty (30) days after written notice thereof to Artist, or in the event that Artist shall go into liquidation, or shall go into bankruptcy or make an assignment for the benefit of creditors, or any insolvency or composition proceeding shall be commenced against or by Artist, then and in any one or all of such events, this agreement shall automatically terminate, and the Artist shall have no further rights of any kind whatsoever in and to the Masters and/or records hereunder. In any such event the Artist shall continue to account to Producer for royalties and/or other sums earned in respect of records embodying the Masters manufactured by or for the Artist prior to the date of such termination.
(b) If Artist fails to perform any obligations required of it hereunder and such failure is not cured within thirty (30) days after written notice thereof to Artist, then Producer shall have the right to terminate this agreement and suspend its performance thereof. In any such event the Artist shall continue to account to Producer for royalties and/or other sums earned in respect of records embodying the Masters manufactured by or for the Artist prior to the date of such termination.
Producer may freely assign all or any portion of Producer’s rights, duties, and obligations under this Agreement to any other business entity established by Producer, provided, however, that no such assignment shall result in an increase of Producer’s fee payable by ARTIST under this Agreement, nor otherwise result in the modification of any other material or substantive provisions of this Agreement, absent written agreement to the contrary.
21. LEGAL REPRESENTATION
ARTIST AND PRODUCER HERETO ACKNOWLEDGE THAT EACH HAS READ AND FULLY UNDERSTAND THE CONTENTS OF THIS AGREEMENT
AND/OR HAVE HAD THE CONTENTS FULLY EXPLAINED TO THEM. EACH HAS FURTHER BEEN ADVISED THAT IT IS THEIR RIGHT TO HAVE THIS AGREEMENT REVIEWED AND EXPLAINED BY AN ATTORNEY OF THEIR OWN CHOOSING AND AT THEIR OWN EXPENSE BEFORE EXECUTING SAME; HOWEVER, ANY INDIVIDUAL'S FAILURE TO DO SO WILL NOT AFFECT THE VALIDITY OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have accepted this Agreement on the date first set forth above.
PRODUCER: ________________________ ARTIST: ______________________________
By: _________________________________ By: ______________________________