2.0 Speculative Work

2.1 Basic Protection

Sometimes the producer will be persuaded to carry out work on a speculative basis before an artist has even signed a record deal (the artist may have a manager or perhaps a publisher prepared to fund the costs involved). Ideally, the producer will nevertheless secure a fee of some kind although sometimes he will be persuaded that there are no funds available for this purpose. In order to protect his position he should consider imposing a contractual obligation upon the artist to ensure that any record company which may become involved will account direct to the producer for royalties at an agreed rate. The rate should be fairly high in order to reflect the element of speculation and risk. The producer might insist that he owns the copyright in the recordings pending any record deal. Also, the producer should either impose a rerecording restriction upon the artist or make it clear that his royalty is payable not only upon the recordings which he has produced but also upon any other recordings by the artist of the same songs.

2.2 Studio Deals

Speculative work of this nature will often involve a studio deal of some kind. Sometimes, of course, the producer will have his own studio or at least sufficient facilities to enable some quality demonstration recordings to be made. If the producer’s own studio or facilities are used then the producer will need to factor this in when calculating what should be paid to him if and when the project is successful. In other cases, the producer will carry out the work at a commercial studio but during “down time”. Most commercial studios are prepared to offer a special deal of some kind for the use of their “down time”, i.e. those few hours (perhaps in the middle of the night) between bookings when the studio might otherwise be idle. The deal might involve cut price rates or, very often, no guaranteed payment but a royalty of some kind in the event that the recordings are commercially released. In this situation, the producer may have to compete with the studio in protecting his own position. For example, the producer may not be able to own the copyright in the recordings because almost certainly the studio will insist upon owning the tapes (so that it may assign the copyright in the recordings to the record company when one is found in return for an agreement with that company either for the payment of an “override” royalty and/or for the reimbursement of the studio costs). Sometimes, the producer may work on a special project of this kind whilst at the same time working (in the same studio) for a fee paying record company. Arguments may then develop between the producer and the studio (and perhaps even the other artist/record company) as to whether or not the special project has made use of “down time” (which involves striking a deal of some kind with the studio) and/or whether work has been undertaken on the special project during time paid for but not used by the other artist (or the record company concerned). The first rule for the producer, if he attempts to extract maximum advantage from the use of any commercial studio in this way, is to ensure that there is no ambiguity involved and that it is clearly understood that the producer will not be liable for any studio fees. If the studio requires a deal of some kind then the producer should ensure that the studio’s deal is with the artist and not with the producer. He should secure his position with the artist separately.