Does WFH agreement sign away performance royalties?

[jonathansorensen]

I have a very promising tune and I had an artist sing on it. But she balked at the work for hire because it sounds like she's signing away, not just rights to the master recording but performance rights as well. Is that what a work for hire is? And if I wanted to give her performance royalties how would that work?

I don't expect anyone to completely detangle but if you could let me know how you handle this or direct me to a link with a sample contract. I'm pasting in the contract I was using:


WORK FOR HIRE AGREEMENT
This agreement is entered into as of this 16th day of October , 2010 , by and between XXXXXX(hereinafter referred to as “Artist”) and XXXX(hereinafter referred to as “Musician”). The parties hereby agree as follows:
1.    Artist hereby engages Musician’s services and Musician hereby accepts such engagement to perform, without limitation, at rehearsal sessions and phonograph recording sessions for the purpose of creating the following master/demo recordings : Vocal performance/tracks, including harmonies, for the song “XXXXXX”
Musician agrees to diligently, competently and to the best of Musician’s ability, experience and talent perform to Artist’s satisfaction all of the services required of Musician hereunder.
2.    Conditioned upon Musician’s full and faithful performance of all the terms and provisions hereof, Artist shall pay Musician the sum of $100.00 for the completion of vocal tracks, including harmonies, for the song “XXXXX” as full and complete consideration for Musician’s services hereunder. 
3.    Musician agrees that his/her performances shall be considered as works made for hire as contemplated and defined in Section 101 of the United States Copyright Act of 1976. Musician hereby grants to Artist all rights of every kind and nature in and to the results and proceeds of Musician’s services and performances rendered hereunder, including, without limitation, the complete, unconditional and exclusive worldwide ownership in perpetuity of any and all recordings and audiovisual reproductions embodying Musician’s performances hereunder. Artist shall accordingly have the sole and exclusive right to copyright any such recordings or audiovisual reproductions embodying Musician’s performances under Artist’s name as the sole owner and author thereof.
4.    Musician hereby warrants, represents, and agrees that Musician is not under any disability, restriction, or prohibition, whether contractual or otherwise with respect to Musician’s right to execute this contract, to grant the rights granted hereunder, to perform each and every term and provision required to be performed by Musician hereunder. No materials, ideas or other properties furnished by Musician and utilized by Artist will violate or infringe upon any common law or statutory right of any person, firm, corporation, including without limitation contractual rights, copyrights and rights of privacy and/or publicity. Musician shall hold Artist harmless and hereby agrees to indemnify Artist for all costs in connection with any breach of the above warranties and representations.
5.     Musician fully understands that Artist would not have employed Musician without an agreement on Musician’s part to give, grant, release and assign to it all rights of every kind in and to the work performed by Musician for Artist, together with all results thereof and incidental thereto.
6.    This agreement sets forth the entire understanding of the parties hereto relating to the subject matter hereof and supersedes all prior and contemporaneous negotiations, understandings and discussions. No modification, amendment, waiver, termination or discharge of this agreement or any of its terms or provisions shall be binding upon either party if not confirmed by a written instrument signed by Artist and Musician.
7.    Any and all disputes between the parties arising under and/or relating to this agreement shall be determined in accordance with the laws and the courts of the State of California.

IN WITNESS WHEREOF, the parties have executed this agreement on the date first written above.
(Artist)
(Musician)

[fret17]

From what I read in your contract...You are the artist and she is the singer/musician.
according to the contract, she gets paid $100.00 upon completion of all vocals. including backup. End of story. Nothing else, from the moment she gets paid and signs the contract,nothing is hers to claim in any, way, shape, or form...Period!...that's what a work for hire is. Usually, the singer gets a copy of her performance to pass around as an example of her work...but she doesn't own the recording...you own the rights to everything....even if you use that recording in a media project...she is not entitled to any future money....so what's the benifit in doing a work for hire?....well if the song's a hit...her voice will be on it ...her voice gets heard by all you shop it to...plus 100 bucks....when she's a star she can ask for what she's asking....but if you're going to shop the song to some fat cats that can get it recorded by a bonified star...they're not going to want to deal with any ties to complications as to who gets what...besides...they may want to sign her.."Hey, Who is that singing??...get her on the phone"...free publicity...that's why a work for hire can be benificial.
Singers and writers that do a lot of work for hire together get remembered when the big deal comes....everyone benifits in some way along the way..the networking alone can lead to wonderful things....but that can't happen when people don't trust one another...If she doesn't want to work for hire , there are plenty who do and know the benifits of being part of a great song being discovered....friends don't forget friends.......My Two Cents...

[mazz]

+1

Work for hire means no further participation. That's important for your ability to shop both the song and the master and be able to warrant that you control 100% of both. Clients don't want any dirty little secrets to come out at some point in the future.

Now if you want to sign a different agreement with the singer that says that you will pay X% of any types of money (sync, performance royalties, etc.) out of any that you collect, that's all well and good because it doesn't affect your ability to put the song out there. If you get paid, then you cut the singer a check. You can have it so after the singer gets a certain cumulative amount or after a certain amount of time as passed, then you're off the hook, or pretty much any way you want to structure it.

Or not.

Work for hire or find another singer, IMO.

Mazz

[jonathansorensen]

Thanks to both of you for the response. I still need to bone up but that clarifies what I felt. I think she really digs the song and has some idea that I already have placement ( I don't but I don't doubt that this one is going to fly) so she just plain doesn't want to sign away her rights.

But more importantly it sounds like my contract is solid and does what it's supposed to do.
I'm going to go ahead and go with another singer who did a great job and signed the contract.
Thanks for the feedback!

Jon

[matto]

This is why you should ALWAYS discuss the release with the performer, and show and explain it to them BEFORE the session.

That way they can decide if they want to do the session under the conditions set by you and by the release.

If you want to have somebody sign a release at some point AFTER the fact it's not surprising they would be suspicious and inclined not to sign it.

[mojobone]

One other consideration; the performance royalties that a studio contract musician signs away with that WFH agreement are largely illusory, at least in the USA; there is no performance royalty for DVD/Blu-Ray sales, nor radio/theatrical performance. Technically, these royalties are earned overseas, but they're never paid to US artists due to a lack of reciprocal agreements. In the case of internet/satellite radio, there's SoundExchange, but it really doesn't amount to much, if you're not GaGa.

[jonathansorensen]

This is why you should ALWAYS discuss the release with the performer, and show and explain it to them BEFORE the session.

That way they can decide if they want to do the session under the conditions set by you and by the release.

If you want to have somebody sign a release at some point AFTER the fact it's not surprising they would be suspicious and inclined not to sign it.

Yes, I'm going ot have to go that route. I used to feel that I didn't want to sour the creative atmosphere with business before tracking but obviously that just doesn't work. I got lucky this time. I mixed the tune with three different singers and by far the best performance was from the singer who signed the contract.

Regardless, next time, everything upfront.

Jon

[mazz]

When you book them, which is probably several days or weeks before the session, make sure you mention and discuss the WFH agreement so that when they arrive at the studio, they are already aware that they will be signing it.

Any studio musician or singer worth their salt will expect some business to be done before the gig and if they are a pro, it shouldn't sour the vibe at all. In fact, if they are truly a pro, they should be expecting a contract and a WFH agreement. After all, you had to negotiate a fee with them anyway, that negotiation should just include everything up front, and as a pro they would be expecting that conversation.

If the studio cat lets the business stuff throw off their performance, then they're not a real pro, IMO.

Mazz

[mojobone]

^^^What I've been saying; if they balk at a WFH, they're pretty green. I don't hold it against anybody, I just casually and carefully explain the situation; they get all their money upfront, while I wait for the production house and the PRO.

[Casey H]

Yes, always discuss the WFH up front.

I've come across two reasons so far where a performer may not be comfortable with a work-for-hire. The first is if they are a union musician and are obviously not working at union scale, they can be squeamish about anything in writing that might cause them trouble. The other is they may not want their name associated with any work outside of their main career path-- it might present an image other than want they want, bite them in the ass later, etc.

One item that should be addressed on a WFH release is whether or not you can use the performer's "name and likeness" in association with the recording, promotion, marketing, credits, etc. It is better for you if you have this right and most releases include it. However, it can also be a negotiating point with the performer. They might agree to a WFH only if you will not use their real name in association with the work. In that case, you would only use a psuedonym in promotion and credits.

You would need to discuss with a music attorney any possible issues there , but I've removed "name and likeness" and music libraries have been OK with the psudeonym as long as I have the proper release to start with. That does NOT mean there are no scenarios under which it could be a problem, such as with MAJOR placements.

Stressing again, there is no substitute for the advice of a qualified music attorney.

Casey