Music and the Law

The Role of a Music Producer

Brian Witkin at Studio 606 during a recording session.

Background
If you ever bother to read the liner notes of an album, you might notice that there are many different people working hard behind the scenes to bring a record to fruition. From graphic designers, engineers, and music producers, everyone is taking on a different role required to create a finished musical product.

Music Producers, Generally Speaking
A music producer’s primary objective is to make a recording as good as possible by making creative calls. Generally, music producers pursue this goal by guiding the overall vision and direction of the recording process. What this means specifically varies greatly depending on genres, local customs, budget etc.

For example, music producers can make creative calls in the studio, such as helping decide whether to re-record a part, add different instrumentation, or rearrange a song, or outside the studio, like weighing in on song selection, album track order, and everything in between.

Producer Compensation
So, you want to hire a producer? Typically, producers charge a flat fee in addition to receiving “points” compensation on the back end. Points are based on a percentage of the royalties derived from the masters (the sound recording copyright). For independent and smaller label projects, points tend to range from 8%-20% and much less on major label deals (2-8%). When there’s a label involved, producer points usually come out of the artist’s share of royalties, not the label’s.

Producers should only get a piece of the composition copyright if they participate in the actual songwriting. So, if the producer helped write the song, they should be entitled to a share of the songwriting. If a producer changes lyrics, or changes the melody, they’ve helped write the song. On the other hand, merely re-arranging and/or changing the instrumentation of the song would not entitle the producer to any songwriting shares.

To avoid later confusion, even with a self-released recording, it’s important to be clear on a specific producer’s requirements. Everything, from storage of recordings to hiring of session players, can be a source of later conflict, so it’s best to go over details in advance.

Beat Producers
As mentioned above, the role of a music producer can vary greatly depending on genre. In the hip hop, pop, and rap genres, producers have emerged that specialize in creating the underlying beats or tracks for a vocalist to sing or rap over. Sometimes these producers will license their beats, showcasing them via popular platforms such as YouTube. The producers offer deals with titles such as “unlimited lease,” which are flat-fee agreements that allow other artists to use their beats on an unexclusive basis. Unfortunately, most of these agreements’ titles are extremely misleading and anything but “unlimited,” because they seriously limit the rights that the artist has in both using the underlying beats and the new derivative work they are creating.

For example, a common “unlimited lease” will limit the number of music videos the artist can create with the new song. The music producer will also typically own 50% of the new composition created because they wrote half of the song, the underlying beat. These types of licenses are a turn off to labels and or sync companies because the licensee doesn’t have the rights to authorize sync clearances to either side of the copyright. Finally, there are also serious content-ID issues. For example, you can’t monetize your new song on YouTube or Instagram, because their content ID system can’t differentiate your song from the other artists who licensed that same beat.

So, whenever possible, avoid these types of “unlimited” deals, and create original content on your own or pay a premium and hire a music producer whom you know is exclusive and will only use the underlying track or beat with your song.

Other Key Players
To better understand what a music producer does, it’s important to first have some context on who else is typically in the room for a recording session to see what a music producer doesn’t do.

Recording engineers are highly trained individuals who help record, mix, and/or master music in the studio at the direction of the artist and/or producers. In other words, despite their expertise, engineers tend to have little to no creative control. Typically, engineers are paid hourly or a flat fee for their services.

Like engineers, executive producers don’t weigh in on the creative either. Typically, executive producers play a behind-the-scenes role working for a label and/or help coordinate logistical items such as timing, studio budgets, etc. Often, especially on smaller or independent projects, the executive producer is simply the individual that funds the project.

The performers are, of course, the individuals (musical artist or band) performing the music that’s being recorded. The extent of a performer’s creative control depends on many factors such as whether they are a primary artist vs. a studio musician, and the context of the recording project itself. If there’s no producer involved, the performer is typically the one making the creative decisions and wearing that hat of the producer whether they like it or not. Of course, sometimes there are blending of roles, like when a producer is also an engineer or executive producer.

Get It in Writing
Finally, it’s always a good idea to have agreements in writing with anyone you work with in the studio. Simple work-for-hire forms will work for engineers and studio musicians; however, producer agreements are typically more formal because of the points on the back end and other details. So, consider hiring a music attorney to help you draft an agreement between you and your producer before you get into the studio together.

 

About Brian Witkin
Brian Witkin runs a boutique entertainment law firm in San Diego. He is also a musician, producer, and CEO of Pacific Records. Brian has spent nearly two decades in the record business and is a Grammy® voting member of the Recording Academy. Brian’s father, Joe Witkin, was the original keyboard player of Sha Na Na, who performed at the iconic Woodstock Festival in 1969.

Note: This article is for general informational purposes only and does not establish an attorney-client relationship. The information is deemed reliable but not guaranteed. Every situation is different, and the general information contained in this article may not apply to your specific situation. The author and publisher assume no responsibility for actions taken based upon the contents of this article. Seek the advice of counsel for your specific situation.

©Law Offices of Brian A. Witkin 2022.

 

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