What is an Artist-Producer Agreement?
An artist-producer agreement is a contract between a recording artist or artistic group and a third-party producer or production entity. The production entity may be a record company, an independent production entity, or an individual producer. Similarly, the artist may be a single individual or a larger artistic group such as a band of musicians or a choir.
But sometimes it is not enough for an artist to be signed to a record label. Sometimes the artist needs the services of a producer who will work with the artist to produce a polished version of the artist’s work. An artist-producer agreement is a specific type of agreement that contains explicit terms governing the artists’ services and the services of the producer, along with other important specifications.
A producer agreement usually contains details about how long the artist’s work will be produced and financed and when the work will actually be completed. These are usually very important terms for all parties because they specify a window of time during which crucial decisions about the work are made.
The producer agreement may also include a vague provision that requires the producer to meet a standard when producing the artist’s work. The most common examples of these types of provisions are that the producer will produce "commercially satisfactory" work or work "commensurate" with the quality of the producer’s recent projects .
A producer contract will often contain a list of the equipment to be used for the production. The artist and the producer will have the right to decide the quality and brand of the equipment that will be used. The artist obviously has a vested interest in this decision because the artist’s name is going to be associated with the work. But the producer also has an interest in using quality materials because it will help the producer build a reputation of excellence in the industry.
Both parties should agree on the exact work specifications. Artists almost always want an album full of tracks. Producers often want a set number of tracks because there is often a moving in and out of favorite tracks for both parties. The parties should also agree on their respective credits on the album jacket. The producer will probably want the producer to receive credit for his or her contribution.
The parties will also negotiate how the business arrangements for compensation will be handled. This is an important part of the agreement because it determines how much compensation the artist will receive for the use of the artist’s name and likeness and the production of the artist’s materials. The artist and producer should also discuss and mention the payment of royalties.
Enforceable Clauses in Artist-Producer Contracts
Some of the key clauses in an artist-producer agreement should include:
Payment Terms: This clause should address how the producer will be compensated for his or her services. It can take many forms, including a flat fee, a percentage of record sales, royalties, or a combination thereof. It should also detail the timing of payments and whether any advances will be paid. Once again, depending on the involvement of the producer, many issues may affect this clause, including whether the producer will own any rights in the project, if he or she has contributed any elements that would otherwise be considered part of the artistic work, and even what kind of control he or she will have at the final stage of production.
Deliverables: This clause can set forth what rights the producer will have and whether and if so when the producer will deliver the completed record to the artist. In most cases, the producer’s obligations under the contract must be conditioned on the delivery of sufficient funds from the record label. If that is the case, the clause should also define the "sufficient funds" standard. If the parties wish to have have the label conduct a separate audit of the artist’s expenses, they should include an audit clause.
Rights and Royalties: This clause should clarify who owns the recordings and how the producers will be paid for their work. This will depend upon the input placed by the producer into making key elements of the project his or her own. For example, the producer may co-own the recordings resident in those services placed by him or her into the making of the project. In some cases, combining an artist and a producer’s rights may afford the artist an opportunity to take back some rights from the artist’s record label. The type of projects, and even the genre of music, can affect these issues. For example, a producer’s payment rights can be affected by the type of project. If the producer’s services have been unique to the project and if the project is successful and earns advance profits, those rights may be payable from the label only. However, if the producer’s services were general in nature, the label may have rights of offset (i.e. to deduct the payment for the producer’s services against the label’s profits before paying profits to the artist).
Termination Conditions: This clause should outline the circumstances under which the agreement will be terminated, such as failure to pay or material breach of contract. It should also address what happens if the record is never released or if the parties wish to prematurely terminate before this occurs.
Contracting Between Artist and Producer
Effective negotiation is crucial for reaching a mutually beneficial agreement between an artist or producer. Some essential strategies for both parties include:
- Identify Core Interests – Each party should articulate its core interests which can then be compared with what the other party has to offer. For example, while the artist may want creative freedom in their music and lyrics, the producer may want the artist to share the profits of album sales. Both parties need to clearly agree to the terms that work for them.
- Narrow the Gap – By revealing their respective interests, both parties can identify areas where a compromise is possible. To narrow the gap between the artist and producer, each can openly discuss how their terms can meet the needs of the other party.
- Propose Solutions – With a list of possible compromises, each party can propose a solution that may satisfy both parties’ interests. Having alternatives will put the artist and producer in a better bargaining position.
- Collaborate – When negotiating terms, it is best to collaborate rather than use competitive negotiation tactics, since it allows the artist and producer to share mutual interests. Competitive negotiations may reduce the possibilities of reaching an agreement and damaging the relationship in the process.
- Maintain Honesty and Transparency – When negotiating, both parties need to stay honest and transparent about their needs and interests. It will create a positive environment for future negotiations and strengthen the professional relationship.
- Fairness – Each party should ensure that the contract is fair for both sides, instead of one side short-changing the other. If the contract does not seem fair to either party, they will likely lack confidence in the contract and the terms within it.
Key Pitfalls and How to Avoid Them
One common pitfall is failing to define acceptable performance quality levels for the producer or the desired differences between the demo and master recording. This can lead to disputes between parties after the record has been delivered. Similarly, it is essential that an artist has transparency into the producer’s creation process and the artist’s right to oversee the creation of the recording. Experienced producers know that allowing the artist to oversee the process leads to less successful recordings in the eyes of the public so producers should be clear in the contract that their authority is supreme. It is important for an artist to demand so that they can provide relevant feedback on the recording process.
A common dispute arises when an artist may accuse the producer of cutting corners (i . e. not following the letter of the agreement) and/or a producer may accuse an artist of unnecessarily interfering with the recording process without crediting the artist with imposing additional quality control protocols.
Another pitfall is failing to identify the parties to the agreement. An agreement should inform the parties the relationship that they have with each other. An example is a record producer, who is a different entity than the label. Improperly identifying this, or omitting it altogether, could result in a contract that could be invalidated under applicable laws.
One final common mistake is failing to include a listing of other works that the producer will have in its catalog. This can confuse artists in how they are compensated for sales of their music.
Legal Issues and Finding Professional Assistance
Since artist-producer agreements contain aspects of licensing, work-for-hire, and exclusive relationships, they are governed by a myriad of legal concerns. In general, it is important for producers to understand that artists must receive royalties for their performances only while their works are still available in the marketplace. After the sale of all available palettes, the performer’s right in the pre-recorded performance is extinguished. As such, unless the producer’s agreement addresses the extent and terms of the artist’s royalty, or otherwise includes a provision for full recapture upon the sale of all available palettes, a former producer whose record is still in the marketplace will continue to be entitled to royalties .
Cost in negotiating and executing artist-producer agreements can be significant. Although many standard form contracts exist, the preparation of artist-producer agreements is a complex process which factors in various program elements. Designers may face debate over the appropriate royalty obligations, payment increments, and payment systems, as well as damage provisions and exclusive dealing obligations. In general, therefore, it is recommended that an attorney be retained for all artist-producer agreement negotiations.