Record Producer Agreements, a practical guide

By Chris Castle

[Editor Charlie sez this post first appeared on MusicTechPolicy]

Over the years I have had a number of posts about negotiating record producer agreements. These posts were based on topics, so one would be on royalties, another on recording costs, recoupment, credits, and so on. Readers have asked that I combine these into one topic and I finally did it for the Copyright Alliance and now am posting the combined article here–all 30 pages of it. The last page is a sample producer agreement check list which could be converted into a deal memo.

I’d encourage you to see if there’s anything important to you that I’ve left out, because when you write these things there’s almost always something you leave out. Since the business is changing rapidly, as soon as you sit down to write one of these things there’s some new configuration that becomes all the rage, so there will be some topics not included because you have to draw the line somewhere.

Feel free to post any comments. You can download the article here.

record-producer-agreements-v-3Download

record-producer-agreements-v-3Download
by thetrichordist

PRESS RELEASE: Copyright Alliance Applauds Nomination of Deborah Robinson as Intellectual Property Enforcement Coordinator

Washington, DC—Today, Copyright Alliance CEO Keith Kupferschmid issued the following statement in support of the Biden administration’s announcement that Deborah Robinson has been nominated to be the next Intellectual Property Enforcement Coordinator (IPEC):

“The position of Intellectual Property Enforcement Coordinator (IPEC) is crucial to the United States’ continued strong and effective support for intellectual property (IP) laws and policies, both here and abroad. The Copyright Alliance is pleased to learn that the White House has nominated Deborah Robinson to be the next IPEC and urges the Senate to expeditiously consider and approve her nomination.

“Deborah Robinson is an accomplished attorney, experienced IP content and protection specialist, and former prosecutor who has real world experience. We are confident that, upon Senate confirmation of her nomination, she will do a tremendous job in this very important role as she works to further IP protections across the country.”

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ABOUT THE COPYRIGHT ALLIANCE: The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over two million individual creators and over 15,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit our website.
by Trichordist Editor

Snoop Asks in @hypebot: “How can you get a billion streams and not get a million dollars?”

Snoop Dogg had strong words for Spotify, Apple Music, and other music streaming services during an interview with former Apple Music Creative Director Larry Jackson at the Milken Institute Global Conference.

“I know I’m going off-script right now, but fuck it. This is business,” said Snoop “In a room full of business people and somebody may hear this so the next artist don’t have to struggle and cry for his money because some of these artists are streaming millions and millions and millions and millions of fucking streams and they don’t got no millions of dollars in the pot.”

Read the post on Hypebot

by Trichordist

Save the Date: May 2, 4:15pm Central European Summer Time (CEST), Tom Grey and friends on fixing streaming

Register for the panel here

by Trichordist Editor

Copyright Office Authorized a Star Chamber at the MLC to Hold Your Money

We knew this would happen. The Copyright Office has empowered the Mechanical Licensing Collective to decide whether a song (or a sound recording) can be copyrighted all under the guise of AI. If the MLC–not the Copyright Office–decides that your song is not capable of being registered for copyright, the MLC can hold your money essentially forever.

Where’s the regulation on this important subject? Did you get a chance to comment on these crucial regulations and precedent?

Ah…no. You didn’t miss any notices in the Federal Register. No, we know this because of this cozy “guidance letter” to MLC CEO Kris Ahrend from the general counsel of the Copyright Office. That’s right, a letter that we just happened to run across. That letter states:

More specifically, the Office advises that a work that appears to lack sufficient human authorship is appropriately treated by The MLC as an “anomal[y],” consistent with its Guidelines for Adjustments, and The MLC should “place [associated] Royalties in Suspense while it researches and analyzes the issue.” Such research could include corresponding with the individual or entity claiming ownership of the work or [could include] inquiring whether the Office has registered the work and whether there are any disclaimers or notes in the registration record.

If The MLC subsequently concludes that the work qualifies for copyright protection and the section 115 license, it should distribute any royalties and interest in suspense to the copyright owner. Alternatively, if The MLC believes that the work does not qualify for copyright protection following its research and analysis, it should notify the individual or entity claiming ownership of the work of its determination and that associated royalties will be subject to an adjustment. This conclusion and adjustment may be challenged by initiating an “Adjustment Dispute” consistent with The MLC’s policies. If legal proceedings are initiated to challenge The MLC’s actions, the disputed royalties and interest should remain suspended until those proceedings are resolved.

So just in one paragraph, the Copyright Office has effectively delegated its role in the U.S. government to a private corporation controlled by the largest music publishers and financed by the largest tech companies in the world (actually the largest corporations in the history of commerce). If the MLC decides that your song “appears to lack sufficient human authorship” The MLC can hold your money while they research the issue.

Note this doesn’t say who makes that decision, it doesn’t say when they have to notify you, it doesn’t say they have to give you an opportunity to be heard, it places no timeline on how long all this may take. “The MLC” (whoever that is) could sit on your money for years without ever telling you they are doing it and also keep invoicing the DSPs for your royalties while they “research and analyze the issue”.

The only time they have to give you notice if they “believe” (whatever that means) “that the work does not qualify for copyright protection” then “it should” (not the mandatory “shall”, but the permissive “should”) notify you of that determination. You can then file an “adjustment dispute” based on the MLC’s own guidelines which you will not be surprised to learn places no disclosure obligations on them, imposes no timeline and cannot be appealed.

Note that this guidance from the Copyright Office pretty expressly contemplates that the MLC may dispute a work that has already been registered for copyright without qualification–which raises the question of what a copyright registration actually means, and where is it written that the MLC has the authority to challenge a conformed Copyright Office registration.

It also places the MLC in a superior position to the Copyright Office because it allows the MLC to initiate a dispute resolution system outside of the Copyright Office channels. Is this written somewhere besides a burning bush on Mount Horeb?

The letter does seem to suggest that you can always sue the MLC or that the MLC could be prosecuted for state law crimes, perhaps, like conversion, but it would help to know who at the MLC is actually responsible.

This also raises the question of why the MLC is invoicing the DSPs in the first place and what happens to the money every step along the path. Because of the idiotic streaming mechanical royalty calculation, it seems inevitable that the royalty pool will be overstated or understated if the MLC is claiming works that are not subject to copyright (like it would for public domain works it invoiced).

Ever wonder what prompts letters like this to get written?

Play your part, dude. Go back to sleep.

by Trichordist Editor

@musicbizworld: UNIVERSAL MUSIC GROUP RESPONDS TO ‘FAKE DRAKE’ AI TRACK: STREAMING PLATFORMS HAVE ‘A FUNDAMENTAL RESPONSIBILITY TO PREVENT THE USE OF THEIR SERVICES IN WAYS THAT HARM ARTISTS’

The track, heart on my sleeve, credited to the ‘artist’ ghostwriter, has racked up more than 230,000 plays on YouTube, and more than 625,000 plays on Spotify.

In addition to AI-replicated vocals of Drake, the track – a seemingly original composition – also features AI-replicated vocals of The Weeknd’s voice.

Both Drake and The Weeknd release their (real life) records via UMG and its Republic Records.

Said UMG in a statement to MBW in the wake of today’s news: “UMG’s success has been, in part, due to embracing new technology and putting it to work for our artists–as we have been doing with our own innovation around AI for some time already.

“With that said, however, the training of generative AI using our artists’ music (which represents both a breach of our agreements and a violation of copyright law) as well as the availability of infringing content created with generative AI on DSPs, begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.

Read the post on Music Business Worldwide

@musicbizworld: UNIVERSAL MUSIC GROUP RESPONDS TO ‘FAKE DRAKE’ AI TRACK: STREAMING PLATFORMS HAVE ‘A FUNDAMENTAL RESPONSIBILITY TO PREVENT THE USE OF THEIR SERVICES IN WAYS THAT HARM ARTISTS’ — Artist Rights Watch–News for the Artist Rights Advocacy Community

by theinvisiblestagehand

@musicbizworld: Spotify’s Mission Statement is Preposterous. Its latest announcements prove it.

[Chris sez: It is not enough for a Silicon Valley company to have a good idea or a compelling product or service. No, no–like Elizabeth Holmes the convicted felon, or Google, who probably should be convicted felons, these people have to convince themselves that they are saving the world. Literally. This is true no matter how ordinary their accomplishments. 

Like the self-hypnotist, they convince themselves that their powers of commerce are transcendent and otherworldly. History begins with them. Never should their revelatory accomplishments be compared to building a better mousetrap.

Spotify is no different, and they will damn well prove that their mission statement has no less than the predictive power of the oracle of Balaam. But of course they fail, flesh and blood being what it is in this time before the Singularity. 

Tim Ingham fries up Spotify’s “mission statement” in this must read expose. (Read the post on Music Business Worldwide.) But realize this–you can rest assured that if Daniel Ek didn’t write this claptrap himself, he definitely must have approved it. So if you ever wondered whether Ek had a grip on reality, it appears that his grip is weak. But you know, in the beginning was the word, et cetera, et cetera.]

In Spotify’s words, Loud & Clear exists for one reason above any other: “[To] provide a valuable foundation for a constructive conversation”.

Thing is, it’s not the surface-level data on Loud & Clear – the data that Spotify wants you to pay attention to – that makes for the most “constructive conversation” about the music industry and where it’s headed.

To get to the good stuff, you’ve got to dig a little deeper than that….

Taken at face value, these figures point to the ever-widening base of artists earning decent payouts from the world’s largest subscription streaming platform.

Spotify obviously likes that narrative a lot. As its Loud & Clear site boasts: “More artists are sharing in today’s thriving music economy compared to the peak of the CD era.”

Thing is, any half-credible analysis of these numbers has to take into account how they’ve changed over time.

And when we start treading this path, these figures begin to take on a different nature – one that flies in the face of Spotify’s wonderfully earnest, but laughably silly, mission statement.

Read the post on Music Business Worldwide

by trichordist

Fans and Trust and Trust by Fans Are Essential for AI to Succeed

By Chris Castle

[This post first appeared on MusicTechPolicy]

We are told that artificial intelligence is a powerful tool that may end up being either the end of humanity through automated super soldiers making autonomous decisions regarding their own AI devised rules of engagement, or life saving medical procedures and diagnostic tools like House meets HAL. As usual–both outcomes are probably equally likely if humanity doesn’t keep the deus in the machina. We really don’t want them thinking “Hell is other machines.”

The question I have is how will we keep humanity around when companies like Google are hell-bent on achieving the Singularity ASAP. This is particularly true of creators–let’s not kid ourselves that the Google Books project was some altruistic motivation to build the digital library of Alexandria rather than a massive digitization project to build a large language model to train artificial intelligence through corpus machine translation.  And still is. As Kurt Sutter (show runner for Sons of Anarchy) taught us about Google, “[t]he truth is, they don’t give a shit about free speech, and are the antithesis of their own mantra, ‘Don’t be evil.’” That was 2014 and boy was he right. And he still is. It’s not just Google, but Google is emblematic of Silicon Valley.

One of the lessons we learned from the 1990s is the calvary is not coming. We have to take our own steps to work both cooperatively and defensively against a tech threat. The Human Artistry Campaign and its AI Principles effort is a hopeful indicator that the creative community and its partners are coming together to get ahead of both the threat and the promise of AI.

Let’s not forget that it’s not just about us, it’s also about the fan, our “consumers” if you will. The biggest threat to creators in my view is destroying the relationship of trust that exists between fans and creators. If AI can allow a machine to impersonate a creator, that deception harms the creator, surely. But it also harms the fan. 

One of the AI principles from the Human Artistry Campaign jumped out at me as addressing this vital issue:

  • Trustworthiness and transparency are essential to the success of AI and protection of creators. 

Complete recordkeeping of copyrighted works, performances, and likenesses, including the way in which they were used to develop and train any AI system, is essential. Algorithmic transparency and clear identification of a work’s provenance are foundational to AI trustworthiness. Stakeholders should work collaboratively to develop standards for technologies that identify the input used to create AI-generated output. In addition to obtaining appropriate licenses, content generated solely by AI should be labeled describing all inputs and methodology used to create it — informing consumer choices, and protecting creators and rightsholders. 

Informing consumer choices. For a moment forget the artistic integrity, forget the human intervention, forget the free riding, just for a moment because these are all vital issues, too. At the core of the AI problem is deception and that issue is as old as time. You can’t essentially deceive fans about the origin of a work and you certainly can’t build a machine that does this all the livelong day and pretend you didn’t.

In Book 2 of Plato’s Republic, he uses the legend of a magic ring that turns the bearer invisible to illustrate a dialog on the nature of justice. The ring turns the wearer invisible so that they are capable of doing all manner of things while invisible–or anonymous–that would clearly be both unjust and punishable without the ring. Plato asks if an act is unjust solely because you get caught or is it unjust regardless of whether you are hidden from sight or apprehension. Yep, those Greeks were onto this early.

Deception is not genius. At the core of our concerns about AI is keeping them honest to protect our fans and the bedrock of the creator-fan relationship. Consumers should be able to rely on the reality of what appears to be an artist’s work that it actually does come from that artist. 

We do this with almost any other product or service that is placed into commerce, so why not with creative works? After all, artist rights are human rights.

We were happy to endorse the AI principles and encourage you to find out more about it at the Human Artistry Campaign or Artist Rights Watch and sign the petition.

by Trichordist Editor

Press Release: Human Artistry Campaign Launches, Announces Artificial Intelligence Principles to Sustain Artists

40+ groups representing artists, performers, writers, athletes & more launch campaign for AI that supports human creativity and accomplishment

WASHINGTON, DC / AUSTIN, TX (March 16, 2023) – A broad coalition announced the launch of the Human Artistry Campaign to ensure artificial intelligence technologies are developed and used in ways that support human culture and artistry – and not ways that replace or erode it. With more than 40 members including major unions, trade associations, and policy experts representing individual creators and rightsholders from across the entire tapestry of creative endeavor, the Human Artistry Campaign is positioned to be a leading voice in the rapidly unfolding debate over the costs and benefits of different forms of AI.

The group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

The campaign urges supporters to sign a petition to advance these fundamental principles.

The launch was announced at SXSW in Austin today at an event featuring voice actor and prolific songwriter Dan Navarro, GRAMMY-nominated singer-songwriter Jessy Wilson and UT Austin professor and immersive technology expert Erin Reilly – and moderated by Rob Levine, Billboard’s Deputy Editorial Director.

Core Principles for Artificial Intelligence Applications in Support of Human Creativity and Accomplishments

  1. Technology has long empowered human expression, and AI will be no different.

For generations, various technologies have been used successfully to support human creativity. Take music, for example… From piano rolls to amplification to guitar pedals to synthesizers to drum machines to digital audio workstations, beat libraries and stems and beyond, musical creators have long used technology to express their visions through different voices, instruments, and devices. AI already is and will increasingly play that role as a tool to assist the creative process, allowing for a wider range of people to express themselves creatively. 

Moreover, AI has many valuable uses outside of the creative process itself, including those that amplify fan connections, hone personalized recommendations, identify content quickly and accurately, assist with scheduling, automate and enhance efficient payment systems – and more. We embrace these technological advances. 

  • Human-created works will continue to play an essential role in our lives. 

Creative works shape our identity, values, and worldview. People relate most deeply to works that embody the lived experience, perceptions, and attitudes of others. Only humans can create and fully realize works written, recorded, created, or performed with such specific meaning. Art cannot exist independent of human culture.

  • Use of copyrighted works, and use of the voices and likenesses of professional performers, requires authorization, licensing, and compliance with all relevant state and federal laws.

We fully recognize the immense potential of AI to push the boundaries for knowledge and scientific progress. However, as with predecessor technologies, the use of copyrighted works requires permission from the copyright owner. AI must be subject to free-market licensing for the use of works in the development and training of AI models. Creators and copyright owners must retain exclusive control over determining how their content is used. AI developers must ensure any content used for training purposes is approved and licensed from the copyright owner, including content previously used by any pre-trained AIs they may adopt. Additionally, performers’ and athletes’ voices and likenesses must only be used with their consent and fair market compensation for specific uses.

  • Governments should not create new copyright or other IP exemptions that allow AI developers to exploit creators without permission or compensation.

AI must not receive exemptions from copyright law or other intellectual property laws and must comply with core principles of fair market competition and compensation. Creating special shortcuts or legal loopholes for AI would harm creative livelihoods, damage creators’ brands, and limit incentives to create and invest in new works.

  • Copyright should only protect the unique value of human intellectual creativity.

Copyright protection exists to help incentivize and reward human creativity, skill, labor, and judgment -not output solely created and generated by machines. Human creators, whether they use traditional tools or express their creativity using computers, are the foundation of the creative industries and we must ensure that human creators are paid for their work.  

  • Trustworthiness and transparency are essential to the success of AI and protection of creators. 

Complete recordkeeping of copyrighted works, performances, and likenesses, including the way in which they were used to develop and train any AI system, is essential. Algorithmic transparency and clear identification of a work’s provenance are foundational to AI trustworthiness. Stakeholders should work collaboratively to develop standards for technologies that identify the input used to create AI-generated output. In addition to obtaining appropriate licenses, content generated solely by AI should be labeled describing all inputs and methodology used to create it — informing consumer choices, and protecting creators and rightsholders. 

  • Creators’ interests must be represented in policymaking. 

Policymakers must consider the interests of human creators when crafting policy around AI. Creators live on the forefront of, and are building and inspiring, evolutions in technology and as such need a seat at the table in any conversations regarding legislation, regulation, or government priorities regarding AI that would impact their creativity and the way it affects their industry and livelihood.

About the Human Artistry Campaign: The Human Artistry Campaign was launched at SXSW 2023 for open dialogue and guidance from the united creative community in shaping the AI debate. Visit HumanArtistryCampaign.com to join.

Members include: AFL-CIO; American Association of Independent Music; American Federation of Musicians; Americana Music Association; American Photographic Artists; Artist Rights Alliance; Artist Rights Watch; ASCAP; Association of American Publishers; Authors Guild; Black Music Action Coalition; BPI; Christian Music Trade Association; Church Music Publishers Association; Concept Art Association; Department of Professional Employees, AFL-CIO; European Composer and Songwriter Alliance; Folk Alliance International; Future of Music Coalition; Georgia Music Partners; Global Music Rights; Gospel Music Association; Graphic Artists Guild; IFPI; International Federation of Actors; #IRespectMusic; Living Legends Foundation; MLB Players Association; Music Artists Coalition; Music Managers Forum – US; Music Tech Policy; Music Workers Alliance; National Music Publishers’ Association; News Media Alliance; NFL Players Association; NHL Players’ Association; Professional Photographers of America; Recording Academy; Recording Industry Association of America; Rhythm & Blues Foundation; SAG-AFTRA; SESAC, Songwriters of North America; SoundExchange and The Trichordist.

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www.HumanArtistryCampaign.com

contact@humanartistrycampaign.com

by Trichordist Editor

Save the Date: Artist Rights: The Future of the Copyright Royalty Board for Songwriters Webcast 4/7/23 at 1:45pm CT

More information here https://utcle.org/studio/ZAQ23/ and register here https://utcle.org/conferences/ZAQ23/order-form/

We are excited announce that Chris Castle will be moderating a panel on the future of the Copyright Royalty Board for songwriters (the “Phonorecords” proceedings) as part of the University of Texas School of Law Continuing Legal Education Artist Rights series.

The panelists are Mitch Glazier, RIAA, Clark Miller, Clark Miller Consulting, and Abby North of North Music Group.

The panel will be assessing both voluntary and statutory changes to make the Phonorecords process more representative and efficient and reprises the topic that David and Chris spoke on for the “Smartest People in the Room” series.

by theinvisiblestagehand