money split for productions

[charity]

this is my first time on the forum....i heard about it at the Rally and heard you guys were all great at answering questions and bouncing off ideas. So, I'd love to get some feedback! I am a singer/songwriter in LA. I have an opportunity to place a song on a commercial that would pay a lot of money, like six figure stuff (possibly). i was speaking to a friend about it and he offered to record it for free, with some kind of cut after the placement. What would be fair? Do I cut him in for a percentage of the publishing? and if so, what percent? another option....Do I triple his regular pay? say he would record a song for 3 grand, which is probably close to accurate and so I would give him 9 grand? a third option......he gets 50% of the first year of money.....the possibilities are endless....and i know part of the fun for him of doing this is to see what the song could generate and be part of it. (and yes, i do have an attorney, he is anti-cutting anybody in for publishing) but, i would like to see if there is any "standard" or if any of you have used a formula that made both parties happy.
thanks so much guys,
charity

[jeffrey]

As an audio engineer i can tell you that jobs done on spec are pretty standard most the time they are a gamble that the project will pay even if the client is broke. There are a couple ways to do this some are straight back end pay off -- EG: when your back end kicks in you pay the engineer off the top first. That said i nearly never do them as such but instead do a co-write credit so basically the engineer is in for a percent of the project if it hits. As for percent that has more to do with what the level of time and involvement in the project an engineer take. Some of us become producers pretty quick playing and writing parts ( when the client wants it) others engineers hit record and ask you if you liked *that* take.... So it can run the full range. One piece of advice get it all in writing, signed and have a entertainment lawyer look of it before you start... believe me ...its worth the time and money.

[Casey H]

If your friend will record it for free, a large percentage would be in order. Even the most promising opportunites often don't materialize, though I hope this one does for you! So he is taking a big risk with the freebie-- he may never get a penny.

I see 2 options:
(1) Pay him a reasonable and customary studio fee for the work upfront, have him sign a work-for-hire giving you all rights, and in the W-F-H agreement offer a courtesy percentage such as in the 5-10% range. You could, only if you wanted, cap that amount so if you really do get a 6-figure deal, his cut doesn't exceed a certain number. In this situation you have paid fair value for the work to start with so what he would make on a placement is more a bonus.

My guess is option 1 might be too costly for you right now-- you don't want to spend 3 Grand up front and since he offered another choice, you probably don't need or want to.

(2) He records it for free and you offer a much higher percentage, probably a 50/50 split since you essentially are partners. A good way to ensure that he gets his share is to make him a co-writer and copyright the work as such. I recommend you use an SR form to copyright both the underlying composition and the sound recording itself. This protects both of you. Additionally you should sign a collaboration agreement which specifies who did what, you agree to be 50/50 partners in everything, and dictates who can sign contracts for the song. This is important because you can specify who can sign a deal in the event the other party can't be reached in time.

If I can be of more help, as non-legal advice, please drop me a note.

I hope you get this deal!! Fingers crossed for you...

Casey

[matto]

I would take a different approach. If he produces the song for you, he will be the "producer" and as such, entitled to co-ownership of the master recording of your song. But not the song itself, which you wrote. To ensure yourself maximum flexibility, you probaby should have him sign a WFH release assigning his portion of master ownership to you, but that release would also state that he is entitled to 50% of all master license fees you receive. Since half of any license fee is usually considered to be for the song and the other half for the master, you'd collect 75% of the total license fee (and future re-licensing fees if any) paid to you, and he'd collect the remaining 25%.

Any PRO back end money (ASCAP/BMI) would go solely to you since you are the writer and (US) PRO's pay for songs only, not recordings.

[Casey H]

I would take a different approach. If he produces the song for you, he will be the "producer" and as such, entitled to co-ownership of the master recording of your song. But not the song itself, which you wrote. To ensure yourself maximum flexibility, you probaby should have him sign a WFH release assigning his portion of master ownership to you, but that release would also state that he is entitled to 50% of all master license fees you receive. Since half of any license fee is usually considered to be for the song and the other half for the master, you'd collect 75% of the total license fee (and future re-licensing fees if any) paid to you, and he'd collect the remaining 25%.

Any PRO back end money (ASCAP/BMI) would go solely to you since you are the writer and (US) PRO's pay for songs only, not recordings.

Good point about the difference betwen ownership of the song vs. the master. They do not have to be shared the same way.

I suggested splitting everything for 2 reasons: (1) Simplicity in dealing with future library, master-sync license, or publishing contracts. Sometimes if things aren't simple, it muddies the waters with the folks we deal with. (2) May very well not apply in this situation-- some producers add some of their own ideas when producing and the artist and producer agree that the contributions warrant co-write.

I agree that the producer doesn't own the song itself. For ME, if I was going that far with splitting revenue on a free production, I'd probably keep it simple for future contracts. But I would be giving away 25% more than I should, as you said!

Casey

[matto]

I suggested splitting everything for 2 reasons: (1) Simplicity in dealing with future library, master-sync license, or publishing contracts. Sometimes if things aren't simple, it muddies the waters with the folks we deal with. (2) May very well not apply in this situation-- some producers add some of their own ideas when producing and the artist and producer agree that the contributions warrant co-write.

I agree that the producer doesn't own the song itself. For ME, if I was going that far with splitting revenue on a free production, I'd probably keep it simple for future contracts. But I would be giving away 25% more than I should, as you said!

Actually IMHO it's simpler if she does NOT cut him in as a writer because then she's the only one that has to sign any future agreements. She would be the only party to any agreements with any company that wants her song, the WFH is simply between her and the producer and specifies how he would get paid (and could be provided to the company if they request to have a release on file).
If it's set up as a co-write he will also have to sign the agreement with the ad agency or any other company that may license the song in the future.

Of course if the producer contributes significantly to the WRITING of the song then he should be cut in as a co-writer, but that doesn't seem to be the case here judging from the OP's post...

[Casey H]

Yes, I acutally mis-read your post. I thought you said the producer would be 50% owner of the master and therefore have to sign agreements as well as the songwriter. But that's not what you said. The agreement to pay the producer 50% on license fees would be strictly between the OP and the producer as part of the WFH and irrelevant to any deals.

It's unusual but you are right.

Casey

[charity]

trying to post this

[charity]

hey guys, this is my 3rd and final time trying to post an answer to what happened.....i think this newbie will give up and go clean my toilet if it doesn't work this time, i'd rather do that than fight with technology!
i decided to go with the 50/50 split on the writer's share. it's not my favorite choice of endings, but he was really excited to do it and i can't tell you how exciting that is to me to work with someone who's into my tune......i sing people's demos and i make sure not to leave till the client is thrilled, but i don't take it home with me, if you know what i mean. i know. I know, Casey, I can hear your sweet lawyerly eye rolling on here for not having a written agreement, but i just can't pay my attorney for another 500 buck contract for something that may never go anywhere. and i have survived thru a Master dispute and it was AWFUL, but i think we'll be ok because we agreed to co-own the master upfront (definitely more inconvenient, yes). We also have a family friendship that dates back for mucho time and i think we'll be ok. plus, he's not crazy and already has the tune done since i posted!! i'm singing the final tomorrow. anyway, guys, thanks for all your help!!!
charity
www.charitychapman.com