When do I need a lawyer?

July 17, 2012

Dear Music Lawyer,

I recently was discovered by a well known producer! As I am SUPER excited hearing about his plans, the last thing I want is to be ill-prepared, legally. We have discussed recording in a studio in Nashville, and prices, dates, times, etc. have all been determined. From here, he's hoping to pitch my songs to his film/TV contacts to try and get my tracks placed. When (or should) I involve a lawyer?

—Joey

Dear Joey,

In my opinion, it's best to involve a lawyer as soon as you can in your music career because there are simple steps you can take early on that will avoid costly cleanup later. I can't tell you how many times I have a band come to me after they have signed a contract and the deal has gone sour and ask "I can just walk away from this because I didn't have a lawyer look at it, right?"

The answer is generally no. Most entertainment contracts will have some language (usually in the general terms at the end) like the signer understands that he/she had the right to seek independent counsel and either did so or voluntarily waived such right. In other words, you can't come back later and claim you are out of the deal just because you didn't have a lawyer representing you.

In any event, I would strongly encourage you to involve a lawyer prior to going into the studio with this producer and get your agreement in writing. The producer may well have a different view of the plan than you do. For example, could the producer think that he is a co-writer of the songs or that he will automatically own or co-own the recordings he produces?

With that in mind, in addition to the points that you listed (location, price, date, time), your agreement should be crystal clear about who owns the songs and recordings that are created in studio as well as what rights you and/or the producer have to exploit the songs and recordings. Ideally, you would retain 100% ownership and control of your songs and the studio recordings, and the producer would only have a limited time to "pitch" them to his contacts for possible placements.

Further, producer's compensation for any successful placements should be spelled out in the agreement, which compensation is often a percentage of the licensing fee(s). You would also be wise to address whether the producer gets to determine the terms of any licensing deal on his own (what we lawyers often write as "in his sole discretion") or if he has to get your approval first.

TIP: Song placement companies often argue that they need a lot of flexibility because they are given very quick turnaround times by prospective licensees. Therefore, they may require that you respond with your approval/rejection within a short period of time such as 24-48 hours or they can deem the use approved. Still, you may want to have absolute approval over potentially unsavory uses such as placements in tobacco, feminine hygiene, political, or religious ads.

This is certainly not an exhaustive list of deal points for these types of arrangements, but I wanted to give you an idea of why involving a music lawyer at this point could help you better identify and protect your interests.

Good luck!

—Amy E. Mitchell