Advice Required On Contract To Use My Old Band´s Tracks On Tv Programme!

[Mudchild]

Hi folks - could I get a quick bit of advice please? I was in a band that now split - there were 5 of us and I was the techy guy/keyboardist/co-writer. We split about a year ago. Never had any record deals or anything. Had a good time, made some good tunes.

A Channel 4 sports programme has approached me asking for permission to use the three tracks from our old MySpace on its shows. Nice! Obviously won't make money or anything, but it'll be nice to get the onscreen credit. They've sent me a contract to sign.

Even though the band is history, I want to just make sure this contract is OK. I guess I'm wondering, do I need to get permission from the other guys who were in the band before I sign the contract, even though there were no official agreements? Is there anything I should be careful of in the contract?

I'd be grateful for any feedback or suggestions on this, and I've included the text of the contract below. Please have a read and let me know what you think!

LICENCE TO USE EXISTING MATERIAL

1 You hereby grant to us and persons authorised or licensed by us the non-exclusive right to broadcast and transmit all or part of the Material (as defined below) in connection with the Boomerang produced programmes ‘Freesports on 4’, ‘Freeride’ and ‘360 Surfing’ in its original format and in any edits, re-edits or versions of the programmes under any programme title and in extracts and trailers taken there from the Production, along with the exploitation, promotion and/or advertising of the Production throughout the world in perpetuity by all means and in all media whether now known or hereafter discovered or developed (including without limitation broadcasting by television and inclusion in cable programmes, making available by any and all broadcast media including, without limitation, on the Internet whether by means of static webpage, webcast, download or otherwise), together with all performers consents and permissions, all rights of publicity and promotion of the performers, the right to use any trademarks, data, images and all musical compositions embodied on the “Tracks” ( as defined in clause 2 below).

2 For the purposes of this letter, "the Material" shall mean the sound recording provided by you of 3 tracks, namely “(track 1)”, “(track 2)” and “(track 3)” (“the Tracks”) embodying the performances of the artist(s) known as “(Band Name)“.

3 You warrant that you are entitled to grant to us the rights referred to in paragraph 1 above free of all encumbrances and restrictions and that the exercise of such rights will not (a) infringe the copyright, performers rights, moral rights or any other personal or property rights of any person or ( entitle any person to claim any payment from us or from any of our licensees. You agree to indemnify us against all and any costs, claims, expenses and liabilities (including, without limitation, legal fees on an indemnity basis and any sums paid on the advice of Counsel or by Court order) resulting from breach by you of any of the agreements and/or warranties on your part contained in this agreement.

4 You will make available to us on request a CD of the recordings in order for us to dub the Material into the Production. The CD you supply will be technically suitable for this purpose.

5 The consideration for the grant of the rights by you is the promotional opportunity that it gives to you. You warrant that you are not a member of MCPS. There is no fee for the rights granted other than any dubbing fees or publishing royalties payable by the broadcaster pursuant to any blanket licence arrangements which will be paid and collected by the relevant collection societies where applicable (PRS only). We shall not be obliged to include the Material in the Production but where we do use the Material you will receive an onscreen credit.

6 We shall be entitled to assign the benefit of this agreement and any or all of our rights in the Production to any third party in whole or in part. This Agreement will be binding on and to the benefit of our successors and assigns. You shall not be entitled to assign this agreement or any part thereof without our prior approval.

7 This agreement shall be governed by and construed under the laws of England and Wales whose courts shall have exclusive jurisdiction.

[Nightwolf]

Cool to get noticed huh? I guess question one would be

Who wrote the songs?

Who owns the songs?

Are you all still on good terms?

Does this offer ever stand to make money?

[Lazz]

CH4 needs to be dealing with copyright owners

You say you were co-writer - how can you even contemplate signing this contract without consulting the other copyright holder/s ?

You'll never get away with it.

You say "Obviously won't make money or anything" - but that's bollocks - did you not read clause 5 ?

Of course they have to pay money. Why should they not ?

But you need to be a member of PRS to collect under their agreements.

Clause 5 also says you "warrant that you are not a member of MCPS" - I don't understand why.

PRS/MCPS are joined at the hip - you would need to be a member of both.

And PPL also.

Why am I bothering to tell you this if you don't really own the copyright ?

Bet you're not even an MU member are you ?

Edited July 17, 2007 by Lazz

[Nightwolf]

The Legal Eagle hath spoken

[Lazz]

Somebody please tell him to shut up.

[Mudchild]

No Lazz I´m not a member of the MU, yes I have consulted the other guys in the band, and no I´m not planning to 'get away with anything' - your accusatory tone in was unwarranted.

As you might have guessed, I don't know much about this topic - give me a break will ya? I came here to get advice!

Copyright was never officially established, but I guess the writers of the tracks would be considered to be me and my co-writer in the band, who I still work with. We spent months writing the tracks together. Then we took the tracks to the practice room and got the other 3 band members to learn the parts. Of course they still made contributions to the tracks at this stage - suggestions, the odd guitar lick, drum beats etc. - how does this figure with copyright? I still see myself and the other guy as the 'writers' - but the others did contribute on a much smaller scale.

A good way of securing copyright is to post ourselves a sealed envelope of a CD of the tracks, and keep it unopened - is that right?

There have been no publishing or licensing agreements whatsoever around the tracks. I'm trying to figure out whether it would be a good idea to join PRS and/or MCPS now. Are the joining fees one-offs, or subscriptions? Maybe it would be a worthwhile investment to join now, as I do hope to be in a position to get income on music I produce in the future.

I did e-mail all the old band members about this to get their views/ask for permission to sign on their behalf, and the only one who replied was my co-writer guy who said yeah. The others don't seem bothered.

Also it is highly unlikely that the co-writer will want to pay to join any rights societies. He just doesn't have the cash.

I'm not intending to rip anyone off, but this is the current situation and I'm just trying to establish an awareness of my options.

Any further helpful suggestions very welcome! I'm totally new to this legal stuff.

[Nightwolf]

Lazz your accusatory tone in was unwarranted.

I agree, Lazz has been overly grumpy of late, but he does offer good advice.

From what I read he suggests joining MCPS-PRS<<READ THAT

From what I read he is right about the conflicting mentions of PRS and MCPS as they are "joined at the hip" as he stated. Perhaps you need to get clarification on this point from the writer of the contract, sounds fishy to me, but I know nothing.

mailing your Music to yourself is referred to a the "poor man's copyright" and will work in a pinch, but it is much wiser (especially this close to a business deal) to have the pros behind you.

You did mislead the conversation a little as to who owns the copyrights to the Music, this needs to be ironed out solid before entering into any legal agreement. Decide who owns the Songs and step up!

[Mudchild]

I agree, Lazz has been overly grumpy of late, but he does offer good advice.

From what I read he suggests joining MCPS-PRS<<READ THAT

From what I read he is right about the conflicting mentions of PRS and MCPS as they are "joined at the hip" as he stated. Perhaps you need to get clarification on this point from the writer of the contract, sounds fishy to me, but I know nothing.

mailing your Music to yourself is referred to a the "poor man's copyright" and will work in a pinch, but it is much wiser (especially this close to a business deal) to have the pros behind you.

You did mislead the conversation a little as to who owns the copyrights to the Music, this needs to be ironed out solid before entering into any legal agreement. Decide who owns the Songs and step up!

Yes, I am looking into joining the PRS and maybe the MCPS - are their fees just one-offs? No yearly subs?

I am trying to establish, with integrity, who owns the songs! Like I said, me and the co-writer put in the months of descision-making, arrangement, lyric writing etc. - but the other 3 in the band added a few modifications when it got into the rehearsal room. Do you think this means that all 5 of us are performers but only 2 of us are the writers and thus copyright owners?

[Nightwolf]

I appreciate and admire the integrity of fair play and in regards to "your" Songs, you are the only one who can make that call. The easy answer is "don't worry about the other guys unless it goes big", in which case you can try to bring them in as minor contributors. Like I said I know nothing of the legalities of the beast.

[john]

Hey

Ethically, and this is where Lazz has a problem (and me), the writers own the song (unless they sell it), the band own arrangement rights on the recording itself.... unless of course you have a different agreement on paper on both song ownership and arrangement.

If you don't sort it now, you can easily be sued by old band members, and of course your co-writer. If that happens, you will see no money until the court case is resolved.

To keep things as amicable as possible I would suggest a simple 50-50 on the song ownership and equal split on the arrangements.

make it as easy as possible to reach an arrangement, and do it soon.

Your co-writer may not be interested in joining PRS, but he might if he realises there is money in it, and it is something you want to do. Also, why not offer to pay it for him, and when he recoups he can pay you back?

Ethically, cutting out the other writer and band members is wrong. If you can't contact someone you really need to talk to a lawyer. Join MU and see if you can get some free advice.

Cheers

John

[Steve]

Hey! Any result on this yet?

[Nightwolf]

I'm curious too

[Mudchild]

I'm curious too

Sorry for the delay guys, been so busy!

Well I got permission off the band, joined the MU, signed the contract, and THEN got MU contract advice... wrong order eh? Never mind. It was getting a bit late in the day, and I didn't want to pass up the opportunity, so I just went for it. There were a few things the MU said I should have queried, but there you go - they probably wouldn't have negotiatied. It's a small-fry affair anyway. At least contact has been established so that maybe I can do music for them again. Also it's got me in the MU and thinking that I can pursue this kind of thing a bit more. Don't know when the tracks will be used yet cos they haven't done their cue sheets yet, apparently.

Next time I'm on to the MU straightaway, so I've learnt something at least!

[Nightwolf]

COOL DEAL

so had you gotten the MU advice first, what would you have done differently?

[Lazz]

Well I got permission off the band, joined the MU, signed the contract, and THEN got MU contract advice... wrong order eh? Never mind.... There were a few things the MU said I should have queried, but there you go - they probably wouldn't have negotiatied.

Well done.

It's good to have the union in your corner on things like this. Their power and influence has diminished considerably, but at least they still retain much in broadcast media. A terrific source of help and info in all areas of work. The other associated benefit is their ability to recommend sources of legal advice and it is my experience that, at least in the UK, entertainment lawyers are often keen to give their first consultation free in hopes that you will be successful and give them repeat business.

Did you get around to the other important step of joining PRS/MCPS yet.

They are really helpful people also.

Please consider accepting my apologies for tone and attitude - I haa been struggling with contractual hassles of my own and suffering my own frustrations over small choice and submission to "force majeure".

What a dick, eh.

[Mudchild]

COOL DEAL

so had you gotten the MU advice first, what would you have done differently?

I would have acted on their recommendations, which were as follows!

Please add the following points to the Agreement if they have not already been dealt

with:

1. The Company undertakes to ensure that all copies of the Production, supplied by the

Company and its sub-licensees are accompanied by a copy of the Music Cue Sheet

and that the appropriate broadcasting/transmitting authority/distributor will be notified of

the full details of the Work (Title(s), Duration, Composer and copyright owner) in order

that such authority/distributor may fully comply with its obligations in respect of the use

thereof to all relevant collection societies including without limitation PRS and MCPS

and their affiliates.

2. If the Company wishes to have further rights to use either the Work or the recording

outside the programme then there must be prior agreement with the Licensor and

there must be a further payment of monies in respect of each usage.

3. No changes to be made to the music and/or the sound recordings without the

Licensor's prior written consent.

4. No purported assignment or disposition of the rights hereunder, or this agreement,

shall be valid without consent from Licensor nor until the proposed assignee (and any

subsequent proposed assignee) enters into a direct covenant with the Licensor to

fulfil the obligations of the Company hereunder.

5 Nothing herein contained or hereby implied shall be deemed to give rise to the

relationship of a partnership between the parties hereto.

6 The provisions set forth herein constitute the entire agreement of the parties. The

Agreement may not be modified altered or changed except by an instrument signed

respectively by duly authorised officers of the Licensee and the Licensor.

7 Any notices to be sent hereunder shall be in writing and shall be sent by personal

delivery or registered/recorded delivery mail or facsimile or email (with proof of

sending in each case) and two days after the day of mailing or transmitting (correctly

addressed) of any such notice shall be deemed the date of the service/receipt

thereof.

8 Any indemnity shall only apply in respect of the Licensor, provided that and to the

extent and from the date, that costs and damages are actually paid pursuant to a final

adverse judgement of a court of competent jurisdiction or a settlement reached with the

Licensor's prior consent (not to be unreasonably withheld or delayed). Damages and

costs recoverable from Licensor shall be limited to the amount of Licensor’s royalty

earnings hereunder and shall only be recoverable from Licensor as a deduction from

royalties otherwise due hereunder.