Help! Please weigh in about this contract.

[dano]

Hi everyone. I'm hoping some of the more legally experienced members on here might be able to help me out. I got in touch with this sports training company (I know how TAXI prefers not to use names, so I'm withholding it) through a forward, and have been signing up through their very automated website. I read the contract, and it really gave me pause, because the language really seems like they're expecting a lawsuit, and for the artist to be responsible. Their model is paying the artist $0.15 per track, no royalties, and withholding payment until $100 is owed (that's 667 downloads).

I'd be very grateful for any thoughts on the following contract, especially this language:
THANK YOU!!!
-Dan


(d) As further provided below under Section 7.1, Artist shall be solely liable for any claim for any royalty fees or charges that might be brought against COMPANYX by a performing rights licensing organization including, without limitation, ASCAP, BMI, or SESAC, arising from all uses of the Work contemplated under this Agreement.

7.1 Artist's Indemnity. Artist shall indemnify and defend COMPANYX and hold COMPANYX harmless from and against any and all costs, liabilities, losses, damages and expenses arising out of any claims, actions, suits, or proceedings of any kind from any third party claim relating to 
(i) a breach of Artist's warranties and/or duties under this Agreement, 
(ii) any claim for royalties and/or infringement of copyright, trademark, patent or other intellectual property rights or 
(iii) any third party claims arising out of Artist's conduct or representations under this Agreement. Further, in the event that a third party infringement claim is brought, COMPANYX shall have no obligation hereunder to defend or protect Artist's copyright interests

4.1 Non-Exclusive License: Subject to the terms and conditions of this Agreement, Artist hereby grants COMPANYX a non-exclusive right under the terms of the Creative Commons License throughout the world to freely and without restriction use and exercise the rights in the Work submitted through the Artist's music Upload Page provided by COMPANYX, in whole or in part, including, but not limited to...

Thanks for your opinions... I just removed the entire contract at the suggestion of Casey. In any case the above language is the most troubling.

[DorothyWallace]

I honestly don't have much experience with this, but I do work in the insurance industry. If you sign that, it's legally binding and it's making you responsible for everything. I don't think it's worth it for 15 cents. I honestly dont think those listings are worth the $5 to submit. I have music up on Itunes for at least 5 years and I havent made $100 yet.

But you should wait to hear from people who have deals already.

Dorothy

[rnrmachine]

I saw that too and my first thought was.. how much are they charging to DL the songs? IF cheap so people are encourage to DL them to use for exercise or what not then it MIGHT be ok. It also depends on how many other songs they offer and will they be promoting your song in anyway. None of that I see in that contract, so this is info you would have to dig up on your own. IF they are charging the standard $0.99 per song then STAY AWAY from that, imho. There is no incentive to buy your song over pro songs and you will be getting ripped off. No web site I have ever heard of takes $0.84 of the $0.99 sale, but they have TONS of songs and any form of promotion is up to you. So look DEEP into that before signing that thing.

Ok it did say... free with paid subscription. So perhaps people have unlimited DLs with the paid subscrition deal. You would have to get a lot of people to sign up and have them DL your song. hehe

Because of what I linked below out of the contract... I don't see anyone being stopped from DLing the song, then the under the "Creative Commons" using your song in any manner they see fit as long as they credit you for the writing/performance. Then get out of having to pay you royalties. I am concerned that in a round about way this would turn your material into a sort of public domain. I am no enterainment lawyer... so I am like you, lost when reading this. I am just asking questions and pointing them out to you as I see it. Maybe I am just paranoid...

Sorry if my advice turns out to be bad, but I believe it to be solid advice. Do not turn this down because of my advice. Just look MUCH deeper into it.

Rob

I do NOT like this one bit...
This is the license that allows copyright holders to easily inform others that their works are free for copying under the conditions that credit for their works is provided. The Creative Commons License is hereby incorporated by reference into this Agreement.

Also this scares me to death...
5.3 Waiver of Additional Royalties: The Royalty Fee payable to Artist shall include all compensation, including mechanical and performance royalties for underlying musical works due Artist, individual producers, the performers, engineers, and any other persons engaged in connection with the Work. Artist hereby waives any right to any compensation, other than the Royalty Fee, including without limitation, mechanical and/or performance royalties in connection with the Work. Artist will be solely responsible for payment of all above stated royalties and will indemnify COMPANYX and hold COMPANYX harmless against any and all losses, damages, costs or claims made by any parties resulting from the use, license, performance, distribution and sale of the Work and Derivative Work.

[dano]

Thanks to both of you for the replies... my reaction is pretty similar to yours Rob, and I've got to investigate further what kind of numbers I might expect. The company sets my music to their "system" which helps golfers work on their swing to music, with guidance on there as well, so I suppose the derivative work license is necessary for them to conduct business. but obviously whoever wrote their contract wasn't concerned with limiting the scope, or allowing the artists any comfort zone. I'll probably contact them about it. But I also wonder if anyone else has experience with this kind of thing.
Dan

[Casey H]

I don't recommend posting an entire contract on a public forum, even though you took out the actual name of the company. It is their intellectual property and they might not be thrilled to see it posted publicly.

This is one you really need to talk to a music attorney about, make sure you understand the deal, and decide if it something that makes sense for YOU regarding this track (or tracks) right now. What's a good deal for one person may not be for another and vice-versa. For example, if someone writes 500 instrumentals a year and considers them "just another track", they might be more willing to enter a deal to see where it leads, get exposure, etc. However, someone who writes less and considers each track a valuable property may be more cautious.

Good luck! And regardless, congrats on getting a deal offer!

Casey

[dano]

Anybody know a music attorney that a musician who's considering parting with tracks for $0.15 might be able to afford?

Last one I talked with wanted to charge me $1500 to send my CD to 12 of his "friends."

I'd love to consult an attorney about every contract I sign, but I haven't met one who I can afford, so I usually use my best judgement and internet research. In this case, I'm wondering what other more experienced musicians and writers instincts might be telling them about this particular deal.
Anyone else got an opinion? Thanks!

[mazz]

Dan,

Get in touch with California Lawyers for the Arts. They have attorneys that will do a 30 minute consultation and then may give a discount if you're a member. It only costs like 40 bucks a year to join.

http://www.calawyersforthearts.org/

What some of that language sounds like is pretty boilerplate stuff that basically says if you infringe on someone else's copyright, either knowingly or unknowingly by using it in your piece of music, and the copyright owner goes after them, you agree to be responsible for what you did and hold them "harmless". This is a basic thing in, for instance, film composer contracts, where the composer is 100% responsible for making sure they aren't plagiarizing another composer's work. If there's any legal fees they pay that are associated with any dispute, you are probably responsible for those too.

Also, if for some reason one of the PROs decides to go after them for some royalties they feel they should collect, and it's for your music, they'll kindly refer them to you.

The chance that any of that will happen is probably pretty slim, but they, of course, have to put it in their contract because it "might" happen. Lawyers like to prepare for the worst.

The non-excluseve part sounds pretty common as well. Basically you're giving them the non-exclusive right to put your music up on their site, based on you agreeing to everything else in the contract.


I'm no lawyer (as I hope you know!!) and I'm just speaking from contracts I've seen before. So don't take my advice (except for joining California Lawyers for the Arts) except at your own risk.

That being said, all of what you posted seems fairly normal to me.

Good luck!

Mazz

[dano]

Mazz - as usual, you are THE MAN!
thanks for the great resource..
I'm going to finish that run-time solution one of these days just out of respect for you bro.
Dan

[jdhogg]

Do you get $0.15 on every download?
ie if they are paid up members and downoad your track as opposed to not being members and paying 99c?

If you dont get the 15c from members do the writers get a share of the signing up fee for access to the music?

I dont know the details of the situation so forgive me if what I ask makes no sense. just thought you might want to double check that.

[coachdebra]

If you're not in California - a lot of other states have similar organizations. You might also join prepaid legal. I know it costs money - but having a lawyer who gets the music business and who you trust review your contracts is critical to your success.

It's the cost of doing business folks. Oh, and that guy who was asking for $1500 to act as an agent for you - yeah, I wouldn't use him...

Debra