What is a Side Artist Agreement?
This agreement covers the terms under which musicians and other artists are retained to provide specific service for an artist, manager, promoter, production company or record label. This is often done when a new artist will be featured on a current artist’s project or a new artist will be making his or her debut. A Side Artist Agreement can also be used when a supporting artist will be recording music or performing in conjunction with a headliner or co-headliner. A Side Artist Agreement is often a basic agreement setting forth key terms. For example, a Side Artist Agreement may set the following terms:
• Role of the sides artist
• Territory
• Compensation
• Exclusivity
• Recording Commitment
• Publishing Rights
• Other Key Terms
The primary purpose of the Side Artist Agreement is to memorialize the duration of how long a person’s services are being retained. Traditionally , this term is 1 year, span of recordings or album, 3 albums, but now the industry expects the side artist to work on a track by track basis as they are set to do so. It is not uncommon for the provisions of the agreement to also cover background vocals, trombone playing or instrumentation.
It is important to understand how a Side Artist Agreement differs from a work for hire agreement or a record label employment or producer agreement. A Side Artist Agreement still retains the rights of artist to his or her publications. With a work for hire or employment agreement, the person is signing away his or her rights. A Side Artist is not afforded rights as it pertains to the album or recording. However, his or her rights to any publishing such as royalties remain with him or her as it can be negotiated.
Essential Provisions of a Side Artist Agreement
The elements that should be included in a side artist agreement are relatively straightforward. However, as evidenced by the lawsuits between Tori Kelly and her guitarist and between Moby and his bassist, not covering each element can have a long-term impact on a musician’s career and general well-being. This blog will briefly outline the four key elements that every side artist agreement should cover.
Compensation
While the compensation will vary based on the amount of time the side artist devotes to the project, the types and amounts of contractual services required, and the artist’s experience, a key element of a side artist agreement is the compensation due, when it is due, and what the payment is for. One of the most common modes of compensation is a daily, weekly or monthly rate for the contracted period of time. For example, for a one month engagement consisting of rehearsals followed by either studio or stage work, both the artist and producer should agree on a compensation that is appropriate for the services to be supplied. For longer engagements, compensation can be adjusted periodically. In addition, advance payments may be appropriate for on-call artists who are expected to make themselves available for a suggested performance period, but not actually engaged.
Ownership Rights
In most side artist agreements, the contracted party is NOT the owner of the rights to the recordings, videos, or audio that he/she performs on. Depending on how the side artist agreement is worded, this determination can have long-term consequences. For example, if the side artist creates original musical works while on this gig, do either of the parties have the right to any of the profits from the sale, re-recording, or re-use of the copyrighted material. The side artist should also consider getting performance credits and/or royalties on his or her recorded material if there is a chance that the musician’s performance will be featured prominently (i.e. solos lead vocals etc.) in the project. Both the producer and side artist should discuss and document the ownership of any derivative works produced during the project, and any modifications to the side agreement that are required to secure those rights. Ownership of rights also applies to any photographs and/or video that is taken during any of the production. It is essential for that both parties agree on what rights the artist and/or producer will have in future projects.
Duration
Duration is important because, as illustrated by Moby’s lawsuit against his bassist, the artist may have obligations for an indefinite period of time, which can substantially disrupt the side artist’s individual career. In Moby’s case, his bassist sued based on the result of an album being recorded and an apparently long waiting period, even though the bassist was unable to receive any payment during that time. It is the responsibility of producers and artists to not only give an estimated time frame for the side artist’s contracted services, but to also make sure that they agree on a termination clause, which would allow the side artist to walk away from the project after a specified period of time. For example, if the contractual obligations begin on January 1 and end on March 30, then the agreement could provide that the artist can terminate the contract on 1 business day’s notice. For artists who will be on a call list, or who will be "on-call", the agreement should provide for when that relationship will end, or the ability of either party to terminate on notice. Several artists have found their music careers significantly disrupted by long-term obligations in side contracts, and so should address this issue when entering into an agreement. If the side artist is performing internationally, the agreement should indicate the countries/locations that the artist will be required to perform in. If the country has strict labor laws for non-resident performers, the side artist should seek legal advice in how to comply with those laws before entering into a side artist agreement.
Termination
Termination clauses are important to have in side artist agreements. These clauses can define wrongfully terminated, the rights of the artist in any wrongful termination situation, and may even include buy-out clauses. Although Ian Anderson and Jethro Tull have had a long partnership, there was a two-year break in 1975. That hiatus was vacated by both parties in writing, and doesn’t appear to have incurred any negative impact on the band. For musicians, termination is often required, because of scheduling conflicts with other projects, health problems, or scheduling conflicts. Because of the unpredictable nature of the creative industries, artists should ensure that there is a termination clause that can be invoked if necessary.
By analyzing the four key elements of a side artist agreement, each party can determine how equitable the relationship is, and whether the side agreement will impact either parties’ careers negatively.
Why Using a Side Artist Agreement is Beneficial
The benefits of a side artist agreement can be substantial and are advantageous for both parties involved. While verbal agreements may be the norm within the fast-paced, informal world of performing artists, musicians and their side artists are better served by avoiding the misunderstandings that come from loosely defined expectations. A contract is a tool to help ensure that no one involved is surprised further down the line.
A contract also provides each side artist with important protections. For example, contracts for independent contractors may define the liability of each artist in the event that a side artist does not hold proper accreditation in the venue. As another example, many agreements are structured to allow the side artist to request alternate work in the case of a show conflict. Oftentimes, a contract will specify that the client must fill any resulting gaps that occur if the side artist is unable to work. This allows the artist to keep working while providing sufficient notice to the client.
It cannot be stressed enough: almost all contracts are negotiable. While some recording studio agreements contain terms which give the recording studio ownership of the musician’s results, most agreements are structured differently. A mutual understanding regarding how both parties will be credited in advertising and marketing materials or how the recording revenue will be distributed is very important. Some provisions of the contract may be agreeable to one party but may not directly benefit the other. By discussing what is most important to each party, the value of the contract will be apparent.
Typical Errors in Drafting Side Artist Agreements
As with any written agreement, side artist agreements are only as good as the terms incorporated into the document. Many mistakes made in drafting an agreement can result in a side artist finding that they are without recourse for payment, or worse, left homeless. Drafting mistakes and oversights are reduceable, and musicians should be aware of the following common mistakes:
Not clearly stating the scope of services to be performed;
Not including compensation details and other specifics;
Not providing the right to approve unreleased productions;
Not including timely payment requirements;
Not providing access to accounting records, including detailed proof of payment calculations;
Not detailing required instruments, including sound gear, where applicable;
Failure to mention whether the artist will be provided food, lodging or transportation;
Not specifying clearly who the employer is, appropriately acknowledging the respective rights and responsibilities of all parties; and
Not noting the side artist’s rights to be part of the creative process and requiring approval on the results.
Wooing of side artists, virtuosos and seasoned session players can be an exciting but risky endeavor. Miscommunication, oversights, and underestimating the power of the side artist’s required contribution can prove detrimental to the potential success of that song. The pitfalls of not paying attention to detail can cost the producer more money if he or she has to redo tracks based on changes in instrumentation or an artist’s displeasure with the initial production. No one wants to be the ill-fated musician who, through naivety, drafts a side artist agreement that fails to expressly state that those involved in the project have agreed to all of their terms of payment and performance with a requisite level of detail.
Legal Issues Related to Side Artist Agreements
Legal Considerations for a Side Artist Agreement
The written agreement is the only way to memorialize all the agreed issues going into the deal and the only way to actually protect yourself. Also, if written correctly, it will create the obligation on your side artist to deliver finished tracks to you in a certain amount of time and there are some practical workarounds to make sure that this happens in most cases.
With respect to intellectual property, there are industry standards that typically don’t really apply to side artist agreements. For example, as a general rule, all intellectual property rights are owned by the person who created the intellectual property, unless the parties agree otherwise in writing. In the case of performing musicians, the creative contributions are the instrumental sounds being played by the musician. As a general practice, the record label in title will own all rights in their underlying sound recordings, but the musicians should not let that concern them. The musician can always ask for permission to use the musicians’ recorded parts in new songs that they wish to record or perform live and in most cases the record label will permit the use because it will save the record label time, money and effort. That said, the musician should not assume that the record label will always agree to their use of the underlying recordings and that is why it is better to have a written agreement to protect the musician’s rights to their recordings whenever possible.
With respect to royalties, the royalty split should be 50/50 for the side artist and the label if the side artist is handing over music to the record label to produce and record. Otherwise, the record label has no right to that money and should not be entitled to it. This , in many cases, is one of the key points of negotiation of the side artist agreement. The record label will often want more than 50% of the profits and the musician should not try to give away more than 50% of the profits or income in this scenario and should make an effort to retain at least 50% of the profits in a side artist agreement.
With respect to local ordinances, the record label should be compliant with local ordinances, such that they properly schedule and pay all sales and/or use taxes, and then allocate those taxes to the total revenue amount from any sale. The net amount from the sale, minus local ordinances, should then be paid to all of the side artists as appropriate. That means the side artist agreement should be specific about the costs associated with local ordinances and how those costs are properly allocated to each party.
Of course, there are also standard terms that you should expect to see in a side artist agreement that should apply in all cases. No matter whether you are negotiating yourself or using an attorney, you should consider negotiating to ensure that there is a provision in your side artist agreement that gives you the right to record and publish copyrighted music. In addition, 2nd invoices are generally both illegal and unenforceable, so you should never agree to those whether you are a musician or a side artist, as they are unfair.
To that end, it is important that you don’t just get a generic template online and fill in the blanks without further thought. Having a written record of terms and conditions agreed to by both parties — usually at the close of the preceding recording session — is going to help you achieve legal standing and help you enforce the contract.
Negotiating a Side Artist Agreement’s Terms
The terms of a side artist agreement should be agreed upon and negotiated by the parties at the outset. A side artist agreement must be a mutual agreement – in other words, it must not only protect the primary producer but the side artist as well. Ideally, the agreements can be reached through discussion or persuasion with your agent if you have one.
Here are some key terms that a side artist will want to consider having addressed in their next side artist agreement:
- Ownership of Master Recordings. Note that should you play the side artist role on the majority of the tracks in the album, then it becomes a bit more complicated. Ownership of master recordings is addressed is section 8 of the Side Artist Agreement.
- Mechanical Royalties. The labour law of Ontario provides that an employee has full rights to the work they create. So, as a side artist, you may be able to see part of the mechanical royalty on the end product. However, it is important also to understand the concept of in-deduction. In-deductions are defined as deductions for the cost of making a recording, and can include studio costs, implicit costs of producers, and general overhead expenses. Neither the primary producer nor the side artist should be responsible for these costs, and so it is very unlikely that the side artist could receive mechanical royalties. Regardless, the side artist may request their share of mechanical royalties on the album.
- Royalties on Songs that the Side Artist Wrote. The agreement should state specifically whether it covers all writing on the album, or just songs that the side artist worked on. If the roles of song writer and performer are separated, the side artist will only be entitled to royalties in relation to songs that he performed on. This would be a key negotiating point for the side artist to consider, and would be something that they would want to raise with the primary producer.
The primary producer should consider all of these terms as well. However, the views of the primary producer are often discussed at these meetings, and they are the ones who are more inclined to withhold payment if the parties cannot reach an agreement.
Examples of Side Artist Agreements
To get a better sense of how side artist agreements work in practice, consider three common scenarios.
Scenario #1: The hired gun. A new band hires a top session musician as a hired gun. The hired gun joins the band in the studio for six months. They quickly record 50 songs, which the band will release over the next five years. In this scenario, the side artist agreement is really a hired gun grant. The new band as the record label grants the hired gun non-exclusive licenses to record and sell the recordings under applicable copyright laws. And the newly hired musician gets paid a fee on a per-recording basis. However, the label still owns the copyright. The songs are attributed to the band. The new band would continue to exploit the songs after the hired gun recorded them using copyright law. The band could include attribution information in the releases that showed the hired gun was an outside contributor.
Scenario #2: The broken partnership. A classical music duo of musicians worked together for thirty years before they had a disagreement about the direction of their musical projects. The duo decides to break-up and part ways, but there’s a back catalog of ten years of music each partner wants to exploit independently. The duo came to an agreement and drafted a side artist agreement.
Scenario #3: Expanding the Band. Rising country band acquires a fiddler to join them for the next big tour. They have two new studio albums scheduled to drop during the tour. The fiddler, a signed musician with another label, agrees to take on the project as a side artist. During the course of the tour, the fiddler performs on the two albums released by the country band , contributes background vocals for the songs she plays and tours with the other musicians as the fiddler. The band retains a 100% ownership interest in the copyrights on the two albums while the fiddler receives a fee from the country band for each of her contributions to the albums and the tour. The fiddler gets her writer’s credits on the songs she plays and the band gets credit for sharing the stage and jamming with the fiddler.
In all three scenarios it’s critical for the parties to explain in writing the terms of the deal. A side artist agreement, like the one used in scenario #2, puts everyone on the same page. Rather than having to second-guess when the agreement ends or the ongoing relationship, each musician was able to move on in an orderly fashion. In scenario #3, the band could have authorized the fiddler to license use of her recorded contributions to the albums and the touring arrangements.
The Terms of Art Side artist agreements between musicians may range from informal agreements to complex contracts covering many potential issues. As illustrated in the examples above, side artist agreements could cover anything from compensation, to master recording ownership, to how to allocate revenues from the composition rights. There are four key areas the side artist agreement should address: In the industry, side artist agreements work as an effective way to expand an artist’s existing work portfolio. The agreements can be very useful in the development of the artist’s career while addressing the commercial issues that could arise in an increasingly complex, competitive environment.