In the Disney, fairy tale version of music production, the story goes something like this: a group of brilliant and talented musicians collaborate, in the studio, to voluntarily and cheerily create a true masterpiece. No money changes hands. The art is the most important thing and business concerns are never even hinted at. On its release, the music becomes an instant sensation, earning millions in royalties and establishing the careers and reputations of each collaborator for all time. Everybody involved in recording this miraculous music is compensated fairly for their contribution, so they remain the very best of friends, on exquisitely amiable terms and they go on to collaborate time and again, producing beloved classics and magical pieces of innovative culture, every time they do.
The reality is usually very different.
In actuality, talents come together under unusual circumstances. Some are flat broke, so have very little bargaining leverage. Others believe it’s their project and that everybody else is adding something minor. Their collaborators often believe they’re buying into an enterprise, through their sweat and artistry and that this will automatically entitle them to more control and higher earnings, from whatever happens. Some collaborators approach the process from the point of view of pure fairness and others are on the make, trying to get something for nothing, by sheer schmoozing. Nobody thinks the song will earn obscene amounts of money, but everybody secretly hopes it will. The collaborators involved may have only just met, having no other relationship or anything else in common, other than being at this place, on this day, to make this music.
The very worst thing that can happen to this group of people is that their song does become a major, remunerative hit. In that case, similar to a lottery win, all the erstwhile claimants come out of the woodwork and acrimony ensues. Assumptions, tacit agreements and verbal contracts, all without a shred of evidential substantiation, are thrown around like custard pies in a slapstick comedy. It’s bloody. It’s brutal. There will be indignant winners and sore losers. Reputations will be shredded and bank accounts drained. Nobody will want to work together ever again. Some potentially excellent music, therefore, will never be made.
You would imagine that this sort of thing only happens with no-name artists, in small studios, on projects that have no budget. Sadly not. Some very high-profile, well-funded, industry-backed projects have run aground on the rock of misaligned collaborator expectations. There was no firm, binding agreement about who did what and hence, who would be entitled to the spoils, or control over the art and in what proportion. Even their managers failed to work this out. The prevailing atmosphere, at the recording session, of, “We’re all friends here, aiming to produce something excellent. Let’s not be too formal about all of this.” flies out the window, when there is big money at stake.
It’s too late to come to agreement after a collaboratively produced song becomes a success. The best and only time it’s possible is before anybody knows what will come of it.
There are some cases in point. Success has many fathers. The hit song “Uptown Funk” belatedly credits eleven song writers.
Another example is the Dire Strait’s hit song, “Money for Nothing” – an ironically titled song, if ever there was one, considering the law suits that followed. According to legend, Sting popped in and sang the melody line of the Police song “Don’t Stand So Close to Me” with the words “I want my MTV” substituted. He didn’t want a song writing credit, but his record company sure did.
It turns out that one of the leading causes of bands breaking up is that, after a time, some members notice that other members are driving expensive sports cars and buying palatial mansions, while they are barely scraping by. They call it “artistic differences”, but it is often a polite, euphemistic way of glossing over the fact that some people in the band are receiving song writing, production and publishing royalties, whereas others are mere paid performers. Bill Wyman of the Rolling Stones is perhaps the most famous example of the latter.
So let’s get back to the collaborative music production session, whether everybody convenes in person at a single place or, as is becoming increasingly popular, collaborators are collaborating over the Internet, separated in space and time.
What is the project instigator asking for? Are they asking you to write a part, creating an important piece of their song, or play one they wrote and presented to you as a fait accompli? Are you here to improvise, write, produce, record, engineer, play, perform, what?
Will you be happy to write the killer lyric or the hook that sells the song, without a credit, or for appearance money only, or just as a favour, without payment, for a fellow struggling artist? What is your expectation, if the song becomes successful? Did you discuss it?
These are not easy discussions to have. There is almost always a power imbalance. It seems impertinent and lacking in gratitude to ask for your rights to be asserted and for your work to be credited. People unfamiliar with agreements of this kind can feel suspicious, as if they’re being strong-armed into something that is not in their best interests. It’s hard to talk about the uncertain future success of the song, when it hasn’t even been written yet. It also seems like a total distraction to the work at hand, which is producing music. Why are we even talking about who gets what? There’s nothing to divide. It seems absurd.
To my way of thinking, a musical collaboration means you are being asked to contribute your ideas, not just your performance skills or facility with your instrument. If it is ideas you’re providing, they should be recognised, credited and compensated. In fact, I would contend that even being asked to appear as a performer still means you are contributing ideas, as your sound will be something you came up with. Your taste and approach to the performance of a line somebody else wrote for you will still require the input of your ideas. Musical ideas are the currency of music production.
For this reason, it’s worth keeping careful and agreed records of who contributed which ideas. An easy way to do this is to video the collaboration, if everybody agrees to it, but don’t forget that the “making of” footage has its own artistic value and rights, which can be important in the promotion of the song itself. If you’re not in the same room, then capturing the Skype conversation might be important.
To complicate matters, does any money change hands during, before or after the session(s), relating to the music collaboratively produced. If so, on what terms? Did you sign an explicit release, or was it all done with a nod and a wink? You might still be entitled to and want a song writing, or other production credit, even if you feel you have been fully compensated for your contribution, for reputational reasons. How would you feel if the song you contributed to writing turned up on a television advertisement, promoting the production of land mines to kill babies, for example? Wouldn’t you want to preserve your right to veto this kind of use, even if you got paid for the session?
I think that in a collaborative music production situation (and they’re all different), it really is very important to be clear, transparent, honest, up-front and in agreement (in writing) about who the song writers will be, who will own and control the publishing and what other production credits will be asserted. In the Disney fairy tale, none of this would be necessary and fairness could be assumed, but in the real world, people rarely even agree on what’s fair, unless they hammer it out.
Are there any sharks in the music production world, who are looking to deliberately and systematically exploit fellow artists, by stealing their best musical ideas and claiming them as their own? You bet there are! It seems almost silly to have to ask. There are multiple famous ruses played by producers of ill repute. Everybody, it seems, wants to place themselves inside an earning opportunity, for minimal actual work. There are people that will positively hijack a collaboration for their own purposes, if it suits them.
I know it’s a vibe killer and it puts everybody on the defensive, when rights and royalties are discussed at the outset, but if the song is successful, then the conversation will have to be had at some time. It’s less damaging to reputations and relationships and far cheaper to do it all up front, before the stakes are high. To preserve the happy, creative, energetic atmosphere of the artistic collaboration, it’s much better, in fact, to get all the expectation setting done ahead of the session. Do that when you’re still just talking about it, so that everybody can approach the session with open eyes. It is better to take care of business before you share a single note.
Likewise, if somebody presents you with something to sign, in the first place it should be done with enough advanced notice that you can read and understand it, or take advice on it. It shouldn’t happen right before you play your part, or worse, after the song is in the can. You don’t want you or your music to be treated like a hostage. Was the agreement written heavily in their favour or yours? No prizes for guessing which way it usually is. If you have sight of the agreement before the collaboration, then you have time to negotiate. You might choose not to collaborate at all, or else only to work together if your needs are respected and met, contractually.
The unfortunate part about all legal agreements is that they can act like arsehole amplifiers. However, I would argue that the potential for bad behaviour is far worse when there is no written agreement at all. Expect random and specious acts, if there is nothing written down.
Are you supposed to take a lawyer with you everywhere you record and write? Lawyers would say “yes” (they would say that, wouldn’t they?), but taking some sound advice once, or educating yourself, or finding some good boilerplate agreements to base your agreement on, can help. You might even draft your own terms and conditions, setting forth the way you are prepared to collaborate and what you are not prepared to give up, which you can present to potential collaborators, before anything takes place at all.
As an example, you might draft a royalty-free release agreement, which states how much you expect to be paid and what credits or recognition you want, if you play on a session. That agreement might allow somebody to make a single payment to you, to get your performance, but your agreement can stipulate that the part is charted for you, before the session and that you are not being asked to write their song for them, for example. There are lots of things you can do to protect your interests. This is not theoretical, either. Your interests in a piece of jointly created art can mean putting food on your table and feeding your children.
In the end, it comes down to what kind of human beings all the collaborators on a project are. If they’re nasty, selfish, narcissistic and greedy, devoid of all ethics, then you have to wonder why you want to collaborate with them. On the other hand, if they’re decent and fair, they’ll be happy to negotiate a decent and fair written agreement with you, prior to the collaboration. By having the discussion, you might discover which kind of collaborator you’re dealing with.
My advice would be to always, diplomatically, have the difficult pre-collaboration discussions and get the agreement down in tangible form. Don’t leave this to chance. If you’re any good, as a musician, the song you jointly create could have real earning power and potential, spanning many years. Don’t give that up too easily.