Recording Release Agreements

 
 
1st September 2010 by David McLaughlin
Introduction
In this edition of our Music Law Newsletter we are going to take a look at ‘Recording Release Agreements’ which despite the significant benefits they provide are unfortunately perhaps one of the most over looked and misunderstood agreements in the music industry. What Are They
A Record Release Agreement clarifies all the rights involved in the making of a recording and the extent to which these rights may be waived limited or upheld going forward. Anyone who plays sings programmes DJs or in any other way performs on a recording should be required to sign one of these agreements. Clarify Rights
There are a number of compelling reasons as to why Recording and Release Agreements should always be used. First and foremost a Recording Release Agreement will put beyond doubt the extent of any person’s rights in the recordings and related musical compositions included on those recordings. By setting down precisely what the parties’ intentions are at an early stage these agreements serve to alert the parties to any honest misconceptions between themselves which can then hopefully be resolved at this early stage. As people’s memories can also get ‘fuzzy’ over time having the arrangement clearly documented at the outset prevents issues from arising such as occur where there is no written agreement and different people later have a different recollection about what was actually agreed. Third Party Requirement
Another extremely important reason to make sure that Recording Release Agreements are put in place is that most third parties who you may look to to release your recordings e.g. record labels or digital and physical distributors will not only require you to guarantee that you control all rights in the recordings needed to allow the release of the recordings but in some cases they will actually require you to also guarantee that written Recording Release Agreements have been executed by all relevant parties. It is much easier to get this kind of documentation sorted upfront at the time the recordings are made rather than with your planned release date in jeopardy madly trying to rush around and sort it out later. Detail
Looking at the detail of Recording Release Agreements there are a number of important issues to be aware of. Firstly the agreement should have a clear description of the musician signing it in other words their full legal name and ideally also their current residential address. Secondly it should be very clearly defined exactly what recordings are the subject of the agreement. Although this may once again sound like common sense unless the recordings are clearly specified by name or reference to the period of time in which the actual recording occurred it may become unclear down the line exactly which recordings the parties intended the agreement to apply to.
Payment?Any fees or other compensation to be paid to the musician for their contribution to the recording should also be clearly stated. At law for an agreement to be legally binding there has to be some kind of value going both ways. In other words there has to be some kind of payment for the rights etc the musician is waiving or limiting under the Recording Release Agreement. Consequently specifying how much a musician is paid for providing their services and that this is also seen as payment for the other things they are agreeing to under the agreement is very important. Key Rights
In terms of the specific legal rights that are key to the Recording Release Agreement the agreement should very clearly provide for who has copyright ownership and control in relation to the recordings. From a copyright perspective it should also be clarified what the expectation is in respect of any contribution a musician may make as part of the recording process to the copyright of the actual song that is being recorded. After all if someone helps to rewrite or rearrange a song in the studio they may have an arguable claim to being a songwriter in the new song that is created. The danger with this is that as a copyright holder this person’s approval is required for any use of the song going forward. Consequently if this was never the intention the Recording Release Agreement can be used to clarify whether any copyright interest will remain with the musician at all or at least the general consents and approvals that the musician will give with regard to use of the song. Performers Rights and Moral Rights
Although dealing with copyright ownership related issues is perhaps the most pressing legal concern in a Recording Release Agreement there are also other legal issues that should be addressed such as clearing any necessary ‘Performers Rights’ as well providing for reasonable limits on the ‘Moral Rights’ that a musician can enforce. Practical Issues
In addition to the legal issues there may be other practical issues that are also very worthwhile covering in a Recording Release Agreement. For example getting clear approval to use the musician's name image and biography in relation to the future promotion and marketing of the recordings. Templates
Recording Release Agreements can also be created as templates meaning the same basic form can pretty much be used time and time again. Considering the significant benefits these agreements provide it’s well worth while looking into getting something set up along these lines. by David McLaughlin www.mclaughlinlaw.co.nz