What is a Fair Royalty Contract for a Live Jazz Jam, as Band Leader? [Archive]

View Full Version : What is a Fair Royalty Contract for a Live Jazz Jam, as Band Leader?

Paul[_13_]

April 29th 14, 04:22 AM

We all know about the session musician release form:

http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/209589d1292696430-need-work-hire-contract-release-form-session-musicians.doc

But what if you decide to not pay the musicians up front, but
instead give them a percentage of any future potential royalties?

This would be in a recorded Live Jazz/Fusion jam session.

How would you word the contract so that it takes into account
your multiple hats as producer, recording engineer, recording costs,
marketing person, promoter, etc?

In other words, if you recorded as a trio, it wouldn't necessarily be
fair to just give 1/3 of profits to each member, since as band leader,
you have put in much more time into the recording than the other members.

Yes, I know this is a question for the lawyers, but I just wanted
to know how most of you handle this....

Nate Najar

April 29th 14, 04:36 AM

That's a record label question. It isn't generally the sort of thing that would come up here.

hank alrich

April 29th 14, 05:03 AM

Nate Najar > wrote:

> That's a record label question. It isn't generally the sort of thing that
>would come up here.
>

And it's also simple, nor cut and dried. This isn't boilerplate stuff.

There should be provision for routine auditing, etc.

Really, it's a huge PITA to do this, and if one thinks it's worth doing
one might consider the value of one's own time and just pay the
musicians in the first place.

Other side of the coin is that musicians worth recording may well wonder
why they should be offering to do this for "royatlies" with a person or
entity lacking a verifiably successful business history, and if there is
such history, why the request to record without payment.

Getting it right costs more in lawyer's fees than paying musicians.

--
shut up and play your guitar * HankAlrich.Com
HankandShaidriMusic.Com
YouTube.Com/WalkinayMusic

Sean Conolly

April 29th 14, 06:10 AM

"hank alrich" > wrote in message
...
> Nate Najar > wrote:
>
>> That's a record label question. It isn't generally the sort of thing
>> that
>>would come up here.
>>
>
>
> And it's also simple, nor cut and dried. This isn't boilerplate stuff.
>
> There should be provision for routine auditing, etc.
>
> Really, it's a huge PITA to do this, and if one thinks it's worth doing
> one might consider the value of one's own time and just pay the
> musicians in the first place.
>
> Other side of the coin is that musicians worth recording may well wonder
> why they should be offering to do this for "royatlies" with a person or
> entity lacking a verifiably successful business history, and if there is
> such history, why the request to record without payment.
>
> Getting it right costs more in lawyer's fees than paying musicians.
>

Better to pay up front, in strong drink. OK - maybe half up front and the
rest after the session...

Sean

Les Cargill[_4_]

April 29th 14, 11:29 PM

hank alrich

April 30th 14, 01:01 AM

Les Cargill > wrote:

> Paul wrote:
> > We all know about the session musician release form:
> >
> >
> >
> >http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/20
> >9589d1292696430-need-work-hire-contract-release-form-session-musicians.do
> >c
> >
> >
> >
> > But what if you decide to not pay the musicians up front, but instead
> > give them a percentage of any future potential royalties?
> >
> > This would be in a recorded Live Jazz/Fusion jam session.
> >
> > How would you word the contract so that it takes into account your
> > multiple hats as producer, recording engineer, recording costs,
> > marketing person, promoter, etc?
> >
> > In other words, if you recorded as a trio, it wouldn't necessarily be
> > fair to just give 1/3 of profits to each member, since as band leader,
> > you have put in much more time into the recording than the other
> > members.
> >
> > Yes, I know this is a question for the lawyers, but I just wanted to
> > know how most of you handle this....
>
>
> So this is the sort of thing you ask your lawyer and the other guys. You
> may not even want to disburse funds directly.

And the lawyer needs to be working in entertainment law. This isn't
general practitioner stuff.

--
shut up and play your guitar * HankAlrich.Com
HankandShaidriMusic.Com
YouTube.Com/WalkinayMusic

Scott Dorsey

April 30th 14, 02:28 AM

hank alrich > wrote:
>
>Really, it's a huge PITA to do this, and if one thinks it's worth doing
>one might consider the value of one's own time and just pay the
>musicians in the first place.

I've taken points on work before, and I will say that you will only get
people to take points if they really believe in the project, if they
aren't living day to day and have a little money set aside, and if they
trust the label a lot.

"Working on spec means you don't 'spec to get paid" as a session guy in
Atlanta used to say.

>Other side of the coin is that musicians worth recording may well wonder
>why they should be offering to do this for "royatlies" with a person or
>entity lacking a verifiably successful business history, and if there is
>such history, why the request to record without payment.

That's where trusting the label comes in.

>Getting it right costs more in lawyer's fees than paying musicians.

There is a point at which working on spec is actually a win, but really
it's only for very large projects.
--scott

--
"C'est un Nagra. C'est suisse, et tres, tres precis."

Tim McNamara

April 30th 14, 02:47 AM

On Mon, 28 Apr 2014 20:22:44 -0700, Paul > wrote:
>
> But what if you decide to not pay the musicians up front, but instead
> give them a percentage of any future potential royalties?
>
> This would be in a recorded Live Jazz/Fusion jam session.
>
> How would you word the contract so that it takes into account your
> multiple hats as producer, recording engineer, recording costs,
> marketing person, promoter, etc?
>
> In other words, if you recorded as a trio, it wouldn't necessarily be
> fair to just give 1/3 of profits to each member, since as band leader,
> you have put in much more time into the recording than the other
> members.
>
> Yes, I know this is a question for the lawyers, but I just wanted to
> know how most of you handle this....

One approach is to divide the pay into n+1 and the bandleader gets two
shares fpr the extra work s/he has to do. That's done by some on live
gigs, although recording is a different animal because there is even
more work involved beyond that required with a live gig. So maybe that
strategy wouldn't work; if you tried it, you'd need to subtract the up
front costs (studio time, engineer time, mixing time, mastering costs,
physical media costs of applicable, artwork, etc.) and then calculate
the musician dollars from the residue.

Frankly the other musicians are at a significant risk of never seeing a
dime as probably most recordings nowadays don't earn enough to cover the
up front costs. They'd probably prefer to be paid cash as an up-front
cost themselves, rather than taking on the risk of getting little or
nothing...

reilloc

May 4th 14, 05:53 PM

On 4/28/2014 10:22 PM, Paul wrote:
> We all know about the session musician release form:
>
>
>
http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/209589d1292696430-need-work-hire-contract-release-form-session-musicians.doc
>
>
>
> But what if you decide to not pay the musicians up front, but
> instead give them a percentage of any future potential royalties?

What if the musicians decide they won't work for free on the promise
that their reward is in heaven?

>
> This would be in a recorded Live Jazz/Fusion jam session.
>
> How would you word the contract so that it takes into account
> your multiple hats as producer, recording engineer, recording costs,
> marketing person, promoter, etc?
>
> In other words, if you recorded as a trio, it wouldn't necessarily be
> fair to just give 1/3 of profits to each member, since as band leader,
> you have put in much more time into the recording than the other members.

Fair to whom? Okay, so you're taking on a lot of responsibility but
well-produced, well-recorded, pricey, expertly-marketed and promoted
crap is still crap.

>
> Yes, I know this is a question for the lawyers, but I just wanted
> to know how most of you handle this....

As a lawyer I can tell you you're not asking a question a lawyer can
answer since you're talking about the bargaining process instead of
reducing the eventual agreement to writing. Sure, you can hire a lawyer
to bargain for you but you'll pay him, probably, more than he'll be able
to bluff out of the other side on a little gig deal like this.

LNC

Paul[_13_]

May 4th 14, 08:01 PM

On 5/4/2014 9:53 AM, reilloc wrote:
> On 4/28/2014 10:22 PM, Paul wrote:
> > We all know about the session musician release form:
> >
> >
> >
> http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/209589d1292696430-need-work-hire-contract-release-form-session-musicians.doc
>
> >
> >
> >
> > But what if you decide to not pay the musicians up front, but
> > instead give them a percentage of any future potential royalties?
>
> What if the musicians decide they won't work for free on the promise
> that their reward is in heaven?
>
> >
> > This would be in a recorded Live Jazz/Fusion jam session.
> >
> > How would you word the contract so that it takes into account
> > your multiple hats as producer, recording engineer, recording costs,
> > marketing person, promoter, etc?
> >
> > In other words, if you recorded as a trio, it wouldn't necessarily be
> > fair to just give 1/3 of profits to each member, since as band leader,
> > you have put in much more time into the recording than the other
> members.
>
> Fair to whom? Okay, so you're taking on a lot of responsibility but
> well-produced, well-recorded, pricey, expertly-marketed and promoted
> crap is still crap.
>
> >
> > Yes, I know this is a question for the lawyers, but I just wanted
> > to know how most of you handle this....
>
> As a lawyer I can tell you you're not asking a question a lawyer can
> answer since you're talking about the bargaining process instead of
> reducing the eventual agreement to writing. Sure, you can hire a lawyer
> to bargain for you but you'll pay him, probably, more than he'll be able
> to bluff out of the other side on a little gig deal like this.
>

Ahh, you are one of those scumbag lawyers, ehh?

I'll have you work for points too!! haha!

Steve Freides

May 5th 14, 01:33 AM

Paul wrote:
> We all know about the session musician release form:
>
>
> http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/209589d1292696430-need-work-hire-contract-release-form-session-musicians.doc
>
>
> But what if you decide to not pay the musicians up front, but
> instead give them a percentage of any future potential royalties?
>
> This would be in a recorded Live Jazz/Fusion jam session.
>
> How would you word the contract so that it takes into account
> your multiple hats as producer, recording engineer, recording costs,
> marketing person, promoter, etc?

I wouldn't. Nowhere is it written that each person gets an equal share,
or that you should get a double or triple share and the rest be deivded
evenly, or anything else - it's up to you and your colleagues to work
out mutually satisfactory terms.

> In other words, if you recorded as a trio, it wouldn't necessarily be
> fair to just give 1/3 of profits to each member, since as band leader,
> you have put in much more time into the recording than the other
> members.

Again, this is up to you and your colleagues.

> Yes, I know this is a question for the lawyers, but I just wanted
> to know how most of you handle this....

A royalty, in my non-legal mind, is simply a percentage of a gross sale,
not a net profit after expenses - the latter is much too complicated to
figure out. In your place, you might tell your players that you'll give
them each 10% of what the recordings sell for, and it's up to you to
make a profit out of the remaining 80%. If you attempt to share
profits, rather than just a percentage of sales, I think you're opening
up Pandora's Box interms of having to do file all sorts of budgets and
other paperwork to show how you spent the money you're saying isn't due
your band mates because it's an expense.

There are a million ways this can work - you could offer to pay 10% of
each gross sale, or you could offer to pay a certain amount for each
track and for each album sale, regardless of the selling price, and then
it's up to you to figure out what to sell it for.

Too many choices, and since this has been done countless times before,
this is why you want an experienced entertainment lawyer.

If I was one of your players, I'd appreciate a choice: get paid up front
and take no royalties, or trade a lower up front payemnt (or receive no
up front payment at all) in exchange for the potential to make more
money in royalties in the future. And I'd take the up front payment 99%
of the time.

Just my opinion; your mileage may vary.

-S-

Paul[_13_]

May 5th 14, 03:55 AM

On 5/4/2014 5:33 PM, Steve Freides wrote:
> Paul wrote:
>> We all know about the session musician release form:
>>
>>
>> http://www.gearslutz.com/board/attachments/so-much-gear-so-little-time/209589d1292696430-need-work-hire-contract-release-form-session-musicians.doc
>>
>>
>> But what if you decide to not pay the musicians up front, but
>> instead give them a percentage of any future potential royalties?
>>
>> This would be in a recorded Live Jazz/Fusion jam session.
>>
>> How would you word the contract so that it takes into account
>> your multiple hats as producer, recording engineer, recording costs,
>> marketing person, promoter, etc?
>
> I wouldn't. Nowhere is it written that each person gets an equal share,
> or that you should get a double or triple share and the rest be deivded
> evenly, or anything else - it's up to you and your colleagues to work
> out mutually satisfactory terms.
>
>> In other words, if you recorded as a trio, it wouldn't necessarily be
>> fair to just give 1/3 of profits to each member, since as band leader,
>> you have put in much more time into the recording than the other
>> members.
>
> Again, this is up to you and your colleagues.
>
>> Yes, I know this is a question for the lawyers, but I just wanted
>> to know how most of you handle this....
>
> A royalty, in my non-legal mind, is simply a percentage of a gross sale,
> not a net profit after expenses - the latter is much too complicated to
> figure out. In your place, you might tell your players that you'll give
> them each 10% of what the recordings sell for, and it's up to you to
> make a profit out of the remaining 80%. If you attempt to share
> profits, rather than just a percentage of sales, I think you're opening
> up Pandora's Box interms of having to do file all sorts of budgets and
> other paperwork to show how you spent the money you're saying isn't due
> your band mates because it's an expense.
>
> There are a million ways this can work - you could offer to pay 10% of
> each gross sale, or you could offer to pay a certain amount for each
> track and for each album sale, regardless of the selling price, and then
> it's up to you to figure out what to sell it for.
>
> Too many choices, and since this has been done countless times before,
> this is why you want an experienced entertainment lawyer.
>
> If I was one of your players, I'd appreciate a choice: get paid up front
> and take no royalties, or trade a lower up front payemnt (or receive no
> up front payment at all) in exchange for the potential to make more
> money in royalties in the future. And I'd take the up front payment 99%
> of the time.
>
> Just my opinion; your mileage may vary.
>

Yeah, it looks like the standard session musician's release form
I originally posted is a standard for a good reason.

Most songs do not hit the big time, so there is usually very
little money to be made with royalties.

Of course, don't tell that to Clare Torry, who probably signed
something similar. She later sued the Floyd in court, and won.

hank alrich

May 5th 14, 07:18 AM

Steve Freides > wrote:

> A royalty, in my non-legal mind, is simply a percentage of a gross sale,
> not a net profit after expenses - the latter is much too complicated to
> figure out. In your place, you might tell your players that you'll give
> them each 10% of what the recordings sell for, and it's up to you to
> make a profit out of the remaining 80%. If you attempt to share
> profits, rather than just a percentage of sales, I think you're opening
> up Pandora's Box interms of having to do file all sorts of budgets and
> other paperwork to show how you spent the money you're saying isn't due
> your band mates because it's an expense.

This. Listen to what the man said. Order of magnitude spookier than a
can of worms. Tedious, too. Keep it simple, and talk to your lawyer.

--
shut up and play your guitar * HankAlrich.Com
HankandShaidriMusic.Com
YouTube.Com/WalkinayMusic

Steve Freides

May 5th 14, 01:24 PM

Paul wrote:

> Most songs do not hit the big time, so there is usually very
> little money to be made with royalties.

Right, except if these are your friends, it might be an OK arrangement -
they'll do you a favor, and you'll say thanks by way of, if hell freezes
over and your song ends up in the top 100, giving them a percentage of
what comes in. That's the sort of arrangement I might do for a friend,
although if just asked out of the blue, I would say "thanks but no
thanks."

You could also decide, if you really want this recording to be made,
that the profits go to charity - no money in it for you, but more likely
to get players, and more likely to get your recording publicized. I
can't speak for anyone but myself, but my wife and I both participate in
a big, local, mostly amateur, annual charity event in our town that
takes _tons_ of our time and for which we don't get paid a nickel. We
do it partly because we enjoy helping a good cause, partly because we
enjoy working with our neighbors, but also partly because, to be
perfectly honest, it's good networking for us and has brought us paying
work.

IOW, although there are professional standards for this sort of thing,
there are also alternatives - kickstarter.com and similar are good, 21st
century examples.

Anyway, best of luck to you, whatever you decide to try and however it
all works out.

-S-