Musicians nowadays are doing so much more than writing and performing music. Many also direct the business side of their careers — but this can feel intimidating. As part of a series on how to make an album, this installment asks: How can we be our own best legal representative?
As an attorney, I have navigated contracts within large corporations, but I’ve also brought my legal knowledge of contracts into the world of music. As a performing musician and songwriter myself, who’s married to a professional musician, I’ve reviewed contracts for gigs, licensing and social media platforms.
Lawyers learn that, generally, a contract is an agreement, “meeting of the minds” or something with an “offer and acceptance.” Throughout your career as a musician, you’ll come across many different situations that require contracts, including creating music, recording, performing, distribution and promotion. Sometimes, you may need to get a lawyer, but other times, all that’s required is your careful attention as you navigate the contract language.
While the information provided here does not constitute legal advice, it will make you aware of possible pitfalls and give you some tips and things to consider when entering a contract – all of which help to make you a more confident advocate for your music.
It is wise to copyright and/or license original music with a performing rights organization such as BMI or ASCAP. To register a work with either group, you’ll complete a contract that describes the work and potential future payments.
A “songwriting contract” may be useful if there are multiple writers involved. If you are co-writing, consider how credits are listed. If you sampled other music, make sure you have the right licenses in place. Are you both the “writer” and “publisher?” If not, note that the publisher is entitled to a percentage of royalties. You may also have a “publishing contract” that specifies who the publisher is and the specifics of payment or rights to the work itself.
Each musical work can have multiple writers and multiple publishers entitled to royalty payments. But keep in mind that you may still be able to share in publishing credits, even if you work with a publishing company.
Record contracts vary greatly, depending on whether you agree to terms directly with the recording studio, ask a venue to record a live performance, or strike a formal “record deal” with a company. If you record directly with a studio, you may have to issue multiple contracts: one for the studio and additional contracts for hired support like other musicians.
If you enter into a contract with a studio, make sure you know what is included. Review hourly fees for the studio itself, as well as for the engineer, equipment, mixing, mastering and any other time or services you will pay for.
When issuing contracts with the musicians performing in your recording session, determine whether those musicians will be paid an hourly rate, a set price for the day or a price per song/album/compilation. This, along with any other contingencies, should be detailed in the contract.
Pro Tip: Before you sign any kind of recording contract, make sure you know who has control of creative decisions. Is it you (the artist), the producer or the studio? You may spend days recording and working with the sound engineer only to feel dissatisfied when they adjust the mix. Check that you can make or request revisions later and that this is included in the cost. Another tip: Make sure your producer or engineer is someone you trust.
Your contracts with venues range from oral agreements to pages of terms and conditions. Musicians should pay careful attention to the following key areas:
- Administrative details cover things like your allotted time for load-in, sound check, the actual performance, access to the green room, meals and drinks provided and what kinds of guests are allowed.
- Sound/Performance details cover use of equipment for things like sound and lighting. Does the contract specify whether these are included, or are they at additional cost? What equipment is provided and, if you bring your own, can you test it in advance of the gig?
- Payment details address whether there are minimum attendance requirements for the use of the space. If fewer people attend than expected, will you have to pay more? Or, if the event brings in more people than expected, will the musicians share in the profit? Know whether payment is based on cover charges, number of attendees and/or food and drinks sales.
Pro Tip: Many legal contracts use the term “force majeure.” With venues, this generally means that neither party will be liable if the gig does not happen due to an “act of God,” a labor strike or other events beyond reasonable control of the parties. However, if the venue is someplace weather-dependent, the contract may include details on cancelation policies, including refunds and rain dates.
Clauses like the above are known as “contingencies,” or items that may alter the terms of your contract. Other contingencies to look out for address insurance and indemnification: Does the venue require musicians to have their own insurance? Does the venue compensate musicians in the event of harm or loss of property?
Carefully review contracts for online services when you distribute your recorded music digitally. If you sell a digital song or a physical CD on any platform, expect a percentage of the sale to go to the online service.
If you perform a show that is live-streamed, take note of contract terms regarding future streaming by users of the site or venue. Does the contract specify whether or not you will continue to get paid based on later viewing?
When record companies, venues and other arts organizations partner with you, they have a joint interest in how successful you are. Generally, this is ideal. Be aware, though, that your contracts with these organizations may include the need to do interviews with media. While the venue may allow and encourage self-promotion, you should check if there are any restrictions. For example, a venue may not allow you to perform a “competing gig” at another venue within a month of their event.
Overall Tips For Navigating Contracts
Remember that a contract is just a fancy word for an agreement. So make sure you know what you’re agreeing to: Take the time to read and consider each term carefully. Asking questions and discussing terms up front can prevent problems down the road, and remember that it helps to have a second set of eyes review your contract before you sign it. Consider that while websites and articles are great tools, sometimes you may want to hire a lawyer.
As your career progresses, you’ll be handling a lot of contracts. Focus on what is most important to you for each one. You likely cannot negotiate every detail (nor would you want to), and you don’t want to be considered difficult and possibly ruin future relationships.
Lastly, payments matter. Know how much you’re getting paid, the timing, method of payment (direct deposit versus a mailed check), who may get a cut of your earnings and how taxes will be handled – both your own and what documents to issue if you’re paying other people. In the latter case, you may want to set up as a business or LLC and consult with an accountant.
And what’s the one thing a contract doesn’t cover, but you should always do? Enjoy the music!