If you’re hiring musicians (or other contributors) to work on a music project, these tips from a music industry lawyer can help you navigate a Work For Hire agreement.
Whether you’re a producer trying to line up a great drummer and bassist for a recording session you’re working on or an indie artist who wants a string quartet to overdub tracks on your next release, it’s entirely possible you’ll find yourself in a situation where asking musicians to sign a Work Made For Hire (a.k.a. Work For Hire or WFH) agreement is a good idea for all involved.
A WFH agreement means, essentially, that if you hire a musician (or producer, or arranger) to contribute to a project or recording session, you will retain copyright ownership of the finished piece and are considered the legal author of the work. In a WFH agreement, typically the contractor (hired musician) is being asked to create something new (e.g. write, arrange, record a part) and is being paid for his or her contribution. Basically, the WFH agreement means these contractors cannot come back in the future to lay claim to copyright ownership and demand royalties — their contributions were compensated for in the agreed-upon payment and this arrangement is what is spelled out in the Work For Hire contract.
Here are some tips from San Francisco music attorney Linda Joy Kattwinkel on how to make such situations work as smoothly as possible and how to generally navigate the often intimidating world of WFH.
In principle, ask everyone to sign WFH agreements
If you’re producing a session and want to fully own copyright in the results when all is said and done, legally, you should ask everyone who contributed to the creative process to sign a WFH agreement, says Kattwinkel.
“It’s not just the people who play the instruments,” she says. “It’s engineers and production people as well, and even the assistant to the engineer, if that assistant is contributing to the project. It’s standard and good form to get Work For Hire agreements from everybody who touches the project while it’s being made.”
If you’re going to ask musicians you hire to sign WFH agreements, follow the golden rule and treat them as you’d like to be treated. Practically speaking, that means giving them the language to review well ahead of time, offering fair compensation for their work, addressing any concerns they have with the WFH form, and making any requested changes to the agreement that are reasonable. In situations like this, basic professionalism will get you far when it comes to getting the signed agreements that you need.
Get the right language
The best way to get the right language in place for a WFH agreement is to find a trustworthy music attorney, describe the situation, and have him or her help you draft a simple-but-effective form that you can use for this session — and hopefully for similar sessions in the future. If you feel that working with a music lawyer is out of your budget, check out organizations like Volunteer Lawyers for the Arts or your local Recording Academy chapter, both of which might be able to help without breaking the bank.
But wait… instead of hiring an expensive attorney, can’t you just download something from the Internet? Maybe, says Kattwinkel, but it’s probably not a good idea.
“It’s a popular and unfortunate fantasy that there is an online resource for legal forms that you can just use,” she says. “I’m sure you can find stuff online, but I don’t know of any that are truly reliable. Anybody can post any form, and any form is going to have come from one side or another, and is going to have bias or a self-serving aspect that might not serve you.
“The best resource I can recommend in that area is Allworth Press,” Kattwinkel continues. “They publish a lot of books with legal discussions and forms by reputable lawyers. If you absolutely want to get a form, and not talk to a lawyer, that’s where I would look.”
Even if you totally trust your collaborators, ask them to sign
“The people you’re working with may have a great level of professionalism and you know they would never sue you,” says Kattwinkel, “but there’s still a level of risk you assume when you don’t ask people to sign WFH agreements, because things can change.”
Case in point, she continues, what if the person you love and trust now gets hit by a truck and their brother-in-law inherits everything? “I’ve seen situations like that where things get nasty,” she says. “Remember, asking people to sign WFH agreements isn’t personal and it’s not about trust. It’s about protecting yourself, especially in the rare but real scenario in which somebody inherits someone else’s rights, comes back, and makes a problem.”
Deal with pushback
When asked to sign WFH agreements, some people will not respond positively, no matter how respectfully you try to engage.
“There are people in the industry who are adverse to contracts of any kind,” says Kattwinkel. “A lot of people don’t believe in them and get scared. The problem with that is, if your recording is very successful, those people can come out of the woodwork and claim to be co-authors — and, therefore, co-copyright owners of the work — regardless of what they actually contributed, and demand a piece of the revenue. So if you can’t get your collaborators to sign a WFH agreement, you need to at least get something that says that they are not co-authors and they will not pursue a piece of any resulting revenue. If you don’t have anything like that, it can lead to real problems if anything comes to legal action.”
Be flexible when the risk seems low
Kattwinkel doesn’t recommend forcing the issue if a key collaborator seems truly resistant to signing a WFH form — but she does recommend proceeding with open eyes.
“It’s really up to you to asses how risky it is to skip having a certain contributor to your recording project sign, and it’s a lawyer’s job to make sure you are aware of, and protected against, every worst case scenario, even if the chances are one percent. Artists and producers need to understand the legal risks of any WFH situation and try to make the best decisions they can.”
One scenario in which it may be pretty safe not to push for a WFH agreement is if you’re working with well-known and well-established collaborators. “If somebody already has a strong reputation, he or she is probably not going to jeopardize it by causing a problem over who wrote what,” says Kattwinkel. “People who are respected and working at the high end of the profession are inherently more trustworthy than people who are just starting out, or people who are in the middle and don’t have a reputation to lose yet, but might start feeling greedy if you hit it big.”
However you proceed, she continues, remember that nothing about WFH agreements is a matter of personal trust, or worth taking offense over. “It’s all about being pragmatic and protecting everyone involved.”
For more on Linda Joy Kattwinkel’s work, click here.
Disc Makers’ regular contributor Michael Gallant’s debut trio album Completely received a four-star review from DownBeat magazine and a five-star review from Critical Jazz, which stated: “This, my friends, is the future of jazz. Fresh, invigorating, progressive – there are simply not enough positive adjectives to list here.” Learn more, download through iTunes, or purchase through CD Baby. Follow Michael on Twitter at @Michael_Gallant or on Facebook.
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