Producing Your Own CD

Purpose

The purpose of this article is to provide a primer on the legal issues involved in producing your own CD.  Please read the below disclaimer very carefully.  This article assumes that you’ve analyzed and understand your market, you’ve lined up some cash, selected your songs and musicians and decided that you still want to record your own CD.  For a good review of these issues, I suggest you read that Article “How To Produce Your Own CD” in the January 1998 issue of Musician Mag.

Legal Disclaimer

While entertainment law is not rocket science – it can quickly get complex.  Hopefully this article will help you stay out of trouble by providing enough information to allow you to ask the right questions.  To cover all these topics in this article I’ve played fast and loose with some complex legal issues so do not rely on this article for legal advice.  Check out the books I’ve listed and talk to more experienced musicians.  And if you’ve got questions regarding these issues, contact an attorney familiar with entertainment law, your state law, and your particular situation.

Choosing A Studio

You’ve analyzed your market, you’ve got money, or at least know where you can some, and you’re sure you want to record a CD, now what?  Find a studio. 

Choose your studio carefully.  You’ll be spending a lot of time (not to mention money) with these people.  Apart from the music issues involved in picking a studio, for example, technical ability, proven track record, reasonable price, and recommendations from other musicians, I suggest you also consider whether the studio will negotiate some of the points listed below.  Finally, when you’ve selected a studio, make sure that the deal you’ve negotiated is written down and signed by both you and the studio.

What to consider in a studio recording agreement.

·         Who gets paid?  Do you write one check to the studio directly, or are you responsible for paying the engineers or producers separately?  If other people will be working on your project, for example, special recording engineers or producers, make sure that they are either included in the studio contract or that you have a separate written and signed agreement with them.

·         How much do you pay?  Normally, studios charge by the hour, but sometimes a studio will charge a flat per-song rate for basic recording services.  These deals, often called demo deals, can be very helpful for your first time in a studio.  Some of the pressure is off, you can make music and not watch the clock.

·         What are you paying for?  The agreement should be clear on what is and what is not included in the price. For example:

·         Laying down your basic tracks with a qualified engineer;

Mixing those tracks;

·         Mastering; (Note: Studios will often charge a different hourly rate for recording, mixing, and mastering services.)

·         What about free, or reduced rate, drum set-up time?  Many studios will not charge, or will charge a lower rate, for this time-consuming but important step.

·         What about studio-caused down time?  You know, they can’t “lock-up” or synchronize the machines, or they’ve lost, or not recorded, “the” track – are you still paying?

·         Are there additional “hidden” costs?  These might include materials (tapes and CD’s), maintenance (head cleaning), or beer for the break room.

·         What’s the end product - DAT, reference CD, or other format?

·         Does the studio provide any production assistance?  Do you want them to?  What does “production” mean?  (It can mean help in writing or arranging the songs, selecting the proper instrument, voice, etc.)

·         Who handles the replication?  Your first time dealing with a large, industrial-strength replicator can be confusing and somewhat frustrating.  It may be worth your money to have someone experienced handle it, at least the first time.  Just make sure those responsibilities are spelled out in your recording agreement.

 ·         When do you pay?  Most studios, like the rest of us, want their money up front.  However, a studio may be willing to take payments during the recording process.  But don’t be surprised if they won’t give you your tapes until you’ve paid in full.  There’s nothing wrong with this, just make sure that it’s in writing.

·         Does the studio provide any guarantees?  While they can’t guarantee the commercial success of your project, they can guarantee that they’ll live up to terms of the agreement.  What about a time-frame for completion?  For example - You’ve finished laying down the tracks and you’re ready for mixing, but the studio just landed a huge “jingle” account and they can’t get to you for 6 weeks.  Set up a time-frame and get it in writing.

·         Refunds.  For whatever reason, the project’s just not working, but you’ve paid in advance.  Can you get some of your money back?  Studios will often refund a portion of a down payment, but they will keep their money for their time already spent and may charge you for the time you’ve scheduled that they cannot fill.

·         Indemnification clause.  At this stage, this issue is more important from the studio’s perspective.  The indemnification clause, and you’ll know it’s an indemnification clause because it won’t be written in English, basically says that if anyone sues the studio for a copyright or other infringement as a result of your songs, you, the artist, will end up paying the studio’s fines and legal fees.  This is fair.  Just make sure that you control all the rights to whatever you’re recording.  We’ll discuss this later in the article.

·         Copyrights.  Hold on to your copyrights!  A poorly drafted, or even worse, a deviously drafted, recording agreement can cost you your valuable copyrights.  Keep your copyrights and make it clear in the recording agreement that you’re keeping them.

I’ll be talking about copyrights throughout the rest of this article so we’ll spend some time on them now.  In brief, as a musician, you are a creative individual.  The result of your creative efforts is your intellectual property.  You protect your intellectual property through copyright, trademark, or patent law.  For this article we’ll stick with copyright law, but be aware that all three fields of law may be important to a recording musician.

·         What is a copyright?  Having a copyright to a song means that for a limited time, currently the life of the author plus 70 years, you control the rights, subject to limited fair use, to reproduction, distribution, adaptation, and performance or display of that work.  (The length of copyright protection may also depend on other factors including when the song was written, if and when it was published, and whether it was a work made for hire.)  Your copyright, apart from your innate creative ability, is simply the most valuable asset you have as a musician.

·         How do you get a copyright?  An original creative expression of an idea becomes subject to copyright protection when it is fixed in a tangible medium.  In other words, if you think up a new song, words and music, and sing it to yourself – you do not have a copyright.  But, if you either write that song down or put it on tape – you’ve got the copyright to that song.  That’s it, no magic words, no messy government forms, no self-addressed certified mailings, it’s yours. 

Getting a copyright is simple, painless, and surprisingly, can be very problematic for a recording musician.

For example:  You’re laying down the rhythm tracks for song one.  The studio engineer makes a suggestion regarding the arrangement - she thinks you should repeat the verse before the first bridge.  You try it, you like it, you record it.  Did you just get a co-writer?  Maybe.  A co-writer you ask, for that? 

Look at it this way - Was it an original expression of an idea?  Maybe.  Was it fixed in a tangible medium?  Definitely yes.  Should you have gotten yourself in this situation to begin with?  Definitely not.

An easy way to prevent the above situation is it to make it clear – and get it in writing, signed – that you retain all rights to the relevant intellectual property of anyone involved in the recording of your project. There are two ways of doing this.   

·         Work-for-hire agreements. Copyright law assumes that the rights to creative expressions of employees belong to the employer, so have all parties (including independent engineers or producers), sign, in advance, an express work-for-hire agreement stating that they work for you.  However, there may be problems with this approach.  Some states say that if you are the “employer” in a work-for-hire agreement, you are liable for paying unemployment insurance, social security taxes, etc., for your “employees”.  This is obviously not what you had in mind. 

·         Transfers of copyright. This approach means agreeing that the engineer initially had the copyright to her contribution, but she has transferred – again in a written, signed agreement – her rights to you.  A downside to this approach is that copyright transfers can be terminated after 35 years.  How important this termination right is depends on how valuable you think the work will be in 35 years - your call.

Caution: Do Not Try This At Home. Have an entertainment attorney familiar with your state law draft the actual language for any work-for-hire agreements or copyright transfers.

·         Publishing rights.  Hold on to your publishing rights!  Unless the studio is fronting some of the money for the project, there is no good reason to transfer any of your publishing rights to the studio. (We’ll look at publishing in more detail a little later on.)  Keep them and make it clear in the recording agreement that you are keeping them.

Bottom line for recording agreements: 

·         Find a reputable studio where you are creatively comfortable;

Negotiate the best, and most detailed, deal you can;

·         Get it in writing;

·         Read it and understand it, in other words know what’s yours, know what you keep, and know what you are giving away; and

·         Get it signed.

Do you “need” an attorney to draft or review the recording agreement?  Apart from the work-for-hire and copyright transfer agreements discussed above, an attorney is probably not absolutely necessary – if you pay attention to details, if you are familiar with contracts, if you are familiar with the terms involved, and if you are willing to pay even more to an attorney should things go horribly wrong.