The Exclusive Songwriter Agreement: Part 2

As featured in: Performing Songwriter Issues #8-11, September 1994 - April 1995.  Visit performingsongwriter.com to order back issues or subscribe.

By John Beiter

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LAST ISSUE, we left our fictional songwriter, Mandy Murphy, reviewing a proposed Exclusive Songwriter Agreement with Patoka Music, a publishing company with whom she had entered several single song agreements in the past. Confronted with the issue whether to “tie the knot” with Patoka Music by entering an exclusive relationship or continuing to deal with it on a song-by-song basis, Mandy is perusing the proposed Exclusive Songwriter Agreement to understand the differences between it and a single song contract.

We already have discussed three provisions contained in a typical exclusive songwriting agreement: (1) the “employment” provision; (2) the provision setting the duration of the relationship; and (3) the litany of rights that the songwriter grants to the publisher to exploit the tunes. The typical exclusive songwriter agreement may contain numerous other provisions that distinguish it from the single song contract.

First, an exclusive agreement may contain a provision stating that, whenever the songwriter collaborates with someone else, he or she first will advise the co-writer that the resulting tune must be published and owned entirely by the publisher. To accomplish this, the contract may require the writer to have the co-writer execute a separate single song agreement with the publisher concerning the tune. The songwriter should try to avoid such a provision because it effectively prohibits the writer from collaborating with anyone who is unwilling or unable to give up his or her share of the ownership to that publisher. For example, this provision, as written, would prohibit the songwriter from collaborating with another writer who has an exclusive deal with a different company. If the publisher insists on a provision limiting collaboration, the writer, to preserve as much creative freedom as possible, should request language allowing collaborations as long as the publisher receives its rightful ownership share from its own writer - but not from the collaborator. As a compromise position, the publisher might require the writer at least to make reasonable efforts to request that the collaborator assign his or her portion of the tune to the publisher.

Second, the exclusive agreement usually will contain a provision specifically setting out the extent of the songwriting services that the writer will be providing to the publisher. The contract may contain a quota of “commercially acceptable” songs that the writer must deliver to the publisher, either per year or for the total term of the agreement (for example, a minimum of twelve songs per year). The writer should be careful about committing to an agreement to write more songs during a given period than is possible. For one reason, exclusive agreements often contain the provision that, if the minimum number of songs is not delivered during a given year, the term of the contract automatically will be extended for the additional period that it takes the writer to fulfill the quota. For example, if a writer is required to write twelve songs per year but does not deliver the twelfth song until 18 months have passed, the second “year” of the agreement does not begin until then, and the term of the contract effectively has been extended six months beyond what was initially contemplated. As you can see, if the songwriter consistently fails to provide the required twelve songs within twelve months, the publisher effectively can tie up the songwriter’s career for a substantial period beyond the contemplated duration of the agreement. The lesson here is simple: if you are going to obligate yourself to fulfilling a quota, make it one that you can live with and meet.

Before we leave this topic, let’s discuss briefly how the issues of quotas and collaboration might interact. Publishers often are unwilling to give writers full credit toward a stated quota for songs that they have cowritten. For example, if a writer collaborates with one other person on a given song, the publisher might only be willing to give the writer credit for one-half song toward the stated quota. Thus, if the writer always works with a cowriter, he or she effectively would be required to write twice as many songs to receive full credit toward the stated quota (for example, 24 co-written songs to meet a 12-song-peryear quota). Such a provision obviously would tend to discourage collaboration and, arguably, creative freedom. As a compromise, the publisher might agree that the writer will receive full credit for any co-written songs if the co-writer agrees to allow the publisher to have full ownership of the song.

Beyond strictly songwriting services, the exclusive agreement might also contain provisions requiring the writer to deliver manuscript or tape copies of each tune upon completion, and/or to appear for photographs, artwork, interviews, and other promotional purposes to exploit the writer’s tunes. Whatever services we’re talking about, the agreement almost invariably will contain a statement that such services are “unique and extraordinary, the loss of which cannot be adequately compensated in damages,” and that “a breach of this agreement by the writer will cause substantial and irreparable injury to the publisher.” Although this language may be extremely flattering to the writer, it is not included in the contract to stroke the writer’s ego. Suffice it to say that, for legal reasons beyond the scope of this article, this seemingly beneficent language is intended to permit the publisher to seek the extraordinary remedy of an injunction against the writer if the publisher believes that the contract is being breached. For example, in a worst-case scenario under the provision discussed above prohibiting certain collaborations, the publisher may be permitted to run to a judge and ask for a court order forbidding the writer from continuing to co-write with a person that has not been approved by the publisher.

Mandy’s head is spinning again as she digests the import of these “standard” provisions. To think that a publisher would look upon cowriting with another creative spirit as “collaborating with the enemy” rubs her the wrong way. The thought of agreeing to crank out xnumber of songs per year, like so many widgets on an assembly line, doesn’t make her happy either. Nevertheless, her lawyer and friends who signed such agreements before have convinced her that such provisions are often par for the course in exclusive songwriting deals, Patoka Music’s proposal being not much better or worse than others she can expect. Besides, she at least likes the writers and personnel there.

Still finding herself on the fence about whether to commit exclusively to Patoka Music, Mandy decides that she’s had enough legalese for the time-being. She decides to save for another day the contract provisions covering the topic that is of much more interest in making her decision: advance payments, otherwise known as the “draw.” This is where it gets really interesting; we’ll discuss it next issue.

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