When Co-Writes Go Wrong: Artist Promotional Requirements in Co-Writer or Producer Agreements

by Chris Castle

Artists will eventually come into contact with either a co-writer, or a co-writing producer, who is themselves signed to a major publishing company.  When co-writing with such a person, artists need to be careful that they are not getting the benefit of a terrific co-writer, only to find themselves locked into a relationship with a business partner who has none of their best interests in mind.

I’m as leery of “exposure” opportunities as anyone, and fully recognize that this is usually bull.  But–there actually are such  opportunities that really do benefit the artist—and therefore the writers if the promo use stimulates sales of royalty-bearing tracks.  As long as the use is prominent and there truly is commensurate marketing and promotional value, then the artist should be able to grant a free or reduced rate license for their recording of the song.   This is particularly true when the co-writer was invited into the artist’s writing sessions or was hired as a producer—the co-writer was given an opportunity to work with the artist, not have their publisher hold the artist up.

I assume that the co-writer has already agreed to any “controlled compositions” clause that the artist is subject to under the artist’s record deal.  This is the minimum that an artist should expect who invites a co-writer to write songs on the artist’s album.

One caveat to the following points is that every now and then a new artist will get to write with someone who truly is an “A” list writer and who does not intend to take a reduced rate mechanical.  That’s fine, I understand that, and if that’s the deal, then let’s get that understanding up front.  But if an “A” list writer is writing with a developing artist, that logic does not translate to other promotional type uses that the artist wants to take for the greater good.

Let’s take a few examples of how this tension manifests itself: iTunes downloads of the week, promotional video channels, artist website or sponsor website uses and film/TV/commercial licenses with more promotional benefit than dollars for up front fees.  It’s very difficult to stomach someone who does nothing to help promote the sales of records in which they have an interest sitting back and trying to dictate terms to an artist who is trying to make something happen.

iTunes Download of the Week:  If an artist is lucky enough to be selected for an iTunes download of the week, the artist/writer must grant a free mechanical license. If you co-wrote the song, you may find that your co-writer’s publisher won’t grant the free
mechanical license.  That means that you don’t get the opportunity, or, worse yet, the publisher may expect someone else to pay the mechanical on the free download. (Most of these online promotions are limited by time, not by the number of downloads.  It is a real pain to write a rule set that will count the number of downloads rather than a rule set that allows unlimited downloads during a certain period of time.)

Promotional Video Channels:  Some video channels, e.g., Channel One, want royalty free licenses.  Some major publishers won’t grant that license as a matter of policy.  They don’t care whether it benefits the artist to get the exposure,  they are more concerned with enforcing their “policy” in general rather than any particular issue.

Artist Website or Sponsor Website Uses:   When an artist uses their own recordings on their artist website or wants to grant a free license to their sponsors to use a recording on the sponsor’s website, it is very difficult to explain why a co-writer’s publisher refuses to grant a free license for those uses.  The fact that the sponsor paid a fee to the artist that the artist used to defray touring expenses to promote the sales of their record (generating mechanicals for the co-writer) and did not share the sponsor fee with the co-writer or their publisher seems like the tail wagging the dog—or like the artist asking for a share of the co-writer’s advances from their publisher.

Film/TV/Commercials:   Publishers will often tell you that they are better able than you to get big money for licenses because (a) they’ve been doing it longer, (b) they are bigger than you, (c) they have the relationships, etc.  This is also known as “blowing the deal.”  If this condescending swagger were limited to opportunities brought to the writers by the co-writer’s publisher that the publisher actually developed, that would be one thing.

It hardly ever is.

This is mostly because it is the artist’s recording of the song that is used as the marketing tool and that is being promoted  generally to the public. Most of the time, the opportunity came because the artist answered the phone, it’s part of an overall sponsorship that the artist developed, or because the artist has a placement agent (or label) who went out and developed the licensing opportunity.

In these situations—again, when the license is also for the artist’s recording which the publisher had nothing to do with creating—the artist should be able to make the call on fees.  This is not a “cover” of an existing song—it is a co-write by invitation.

Suggested language: While this sounds complicated, and it certainly can be if you try hard enough, the following language would likely do the trick, to be inserted into a collaboration, split or producer agreement:

“Artist shall have the right to grant any non-exclusive license with respect to 100% of each [co-written song or “Subject Composition”] if such license relates to the license of a recording of the Subject Composition featuring Artist’s performances, all on such terms as Artist, in Artist’s sole discretion, may designate or approve, provided that the terms applicable to Artist’s share of the applicable Subject Composition shall be no less favorable than the terms applicable to Producer’s share thereof.”

Obviously, consult with your own lawyer. (Also note that the “controlled compositions” concept is usually limited to US and Canadian sales as well as certain gratis licenses beyond the US border.)

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