“Every Composer’s Business: Essentials for Your Career”
SAMPLE SERIOUS MUSIC PUBLISHING CONTRACT
James M. Kendrick Member of the Bars of New York and New Jersey Partner, Thelen Reid Brown Raysman & Steiner LLP, New York, New York Acting President, Schott Music Corporation/European American Music Distributors LLC
AGREEMENT made as of this ___ day of __________, 2000, between XYZ MUSIC PUBLISHING COMPANY, INC. (hereinafter referred to as "Publisher"), a New York Corporation, whose address is currently c/o Thelen Reid Brown Raysman & Steiner LLP, 875 Third Avenue, New York, NY 10022 and Composer (hereinafter referred to as "Composer") whose address is currently ADDRESS. IN CONSIDERATION of the mutual promises hereinafter set forth and other good and valuable considerations, the parties do hereby agree: 1. DESCRIPTION OF EXCLUSIVE RELATIONSHIP
Publisher shall publish all works listed on Schedule A and all works written by Composer and accepted by Publisher during the term of this Agreement on an exclusive basis on the terms and conditions set forth in this agreement. Composer shall not write or compose any musical composition for anyone other than Publisher during the term of this Agreement, except as otherwise provided for in this Agreement. Publisher shall have no say in artistic decisions made by Composer as to the content or format of his compositions. 2. TERMS
The term of this agreement shall commence as of the date first indicated above and shall continue for a period of five years. Six months prior to the expiration of this Agreement, Publisher and Composer shall enter into good faith negotiations for the renewal of the Agreement. 3. GRANT OF EXCLUSIVE RIGHTS
All musical compositions listed on Schedule A or composed by Composer during the term of this Agreement shall, except as otherwise provided for in this Agreement, upon creation, become the exclusive property of Publisher (all such compositions being hereafter referred to as "Compositions"), including all copyrights and copyright rights in each such Composition, subject to the terms and conditions of this Agreement.
4.
DELIVERY OF MANUSCRIPTS
Composer shall prepare and deliver to Publisher a complete and legible photocopy of the manuscript of each Composition written or composed by Composer promptly upon completion thereof. Following delivery to Publisher of a copy of the manuscript of a Composition, Publisher shall have sixty (60) days from the date of delivery of such manuscript copy to decide whether Publisher wishes to accept the Composition. If Publisher decides not to accept the Composition, then Publisher shall return the manuscript copy to Composer, together with written notice to Composer advising him of its decision, and thereafter Composer shall be free to make any arrangements for the disposition of that Composition in any manner he sees fit. If the Composition is accepted by Publisher, Publisher will send an instrument of assignment (in the form of Exhibit 1) to Composer and Composer will sign such instrument of assignment and return it to Publisher. Composer consents that such instrument of assignment may be filed by Publisher with the United States Copyright Office. Composer and Publisher thereafter also shall execute such documents and instruments with respect to that Composition as Publisher may deem necessary or desirable to effectuate the intent and purposes of this agreement. Composer hereby authorizes and empowers Publisher as his attorneyinfact to execute and deliver any such documents and instruments in Composer's name. The power of attorney herein granted Publisher is coupled with an interest and shall be irrevocable. Composer acknowledges that all Compositions accepted by Publisher under the terms of this Agreement shall be controlled by Publisher for the full term of copyright including any and all renewals and extensions of copyright, throughout the world. 5. COMPOSER'S REPRESENTATIONS AND WARRANTIES
Composer represents and warrants that, to the best of Composer's knowledge: (a) The Compositions are or will be new and original and will not infringe upon or unfairly compete with any other works, compositions, arrangements or material and will not violate, invade, infringe upon or interfere with any rights of any third party. (b) Composer has the full right, power and authority to make this Agreement, perform its terms and conditions, furnish Composer's services hereunder, and grant to Publisher all rights which are subject to this agreement, free and clear of all claims, rights and obligations whatsoever. 6. INDEMNIFICATION
(a) Composer hereby indemnifies and holds Publisher harmless against all costs, expenses (including reasonable attorney's fees and disbursements) and damages which Publisher may incur as the result of any bona fide claim in which it is asserted that any warranties, representations or covenants made by Composer in this agreement have been breached or in which assertions are made which are inconsistent with any of such warranties, representations or covenants, and such claim results in a judgment against Publisher or is settled by Publisher with Composer's consent, such consent not to be unreasonably withheld. Such indemnity
shall be limited to the extent of direct costs (including all court costs) paid by Publisher over and above any amounts contributed from applicable insurance, if any, together with any deductible amounts specified in relevant insurance policies. (b) If a claim is presented against Publisher in which it is asserted that a Composition infringes upon or violates or interferes with the rights of any person, firm or corporation, Publisher shall notify Composer of such claim, and Composer (at Composer's cost and expense) may participate in the defense thereof. Publisher shall have the right to control the defense and to settle or otherwise dispose of such claim in any manner that Publisher may determine, subject to the provisions of this Agreement. 7. USE OF COMPOSER'S NAME, LIKENESS, AND BIOGRAPHY
Publisher shall have the right to use and to allow others to use Composer's name and likeness, and biographical material concerning Composer, in connection with Publisher's business in general and with the use, promotion and exploitation of the Compositions in particular. Notwithstanding the foregoing, all biographical material and all photographs and other likenesses of Composer shall be submitted to Composer for Composer's approval prior to initial use, such approval not to be unreasonably withheld or delayed. 8. PERMISSION TO USE THIRD PARTY MATERIAL
Composer shall obtain licenses or permission to use any materials or texts which are not in the public domain and which are owned or controlled by any third party which Composer incorporates into any Composition at Composer's sole cost and expense. Composer shall furnish written evidence of such permission at the time of delivery of the manuscript copy of such Composition. The time within which Publisher shall determine whether or not to accept that Composition shall not begin to run until such written evidence is delivered. 9. MUTUAL RESPONSIBILITY FOR THE PREPARATION OF SCORES AND PARTS
(a) Publisher shall publish the Compositions as provided in this Paragraph 9. The format and order of publication of the Compositions shall be determined by Publisher in consultation with Composer. "Publish" for the purpose of this Agreement shall mean an offering to the public of scores and performance materials for rental or sale in facsimile or digitally engraved format, as determined by Publisher in consultation with Composer. Composer shall be responsible for the delivery of all materials needed for publication, including score and parts digital files of all the works on Schedule A, and any piano reductions. Upon delivery by Composer of score masters, parts masters, and piano reductions, as applicable, in form acceptable to Publisher, all further costs in connection with the preparation, publication, distribution, and promotion of the Compositions shall be borne by Publisher (with the possible exception of the costs of revisions as specified in Paragraph 9 (b) below).
(b) Publisher shall make available to the public on a rental or perusal basis the full score to each of the Compositions, in connection with which Publisher shall be entitled to reproduce Composer's manuscript scores. The costs of reproduction, rental and promotion shall be borne by Publisher. (c) If Composer makes revisions to a Composition which has been prepared for publication by Publisher, then Publisher shall pay for the first set of revisions to be incorporated into the score and parts masters, to a maximum of 10% of the cost of origination of those masters. If after the initial revisions, Composer further revises the Composition, Composer must pay all costs of incorporating such additional revisions into the masters and for reprinting of any materials required to replace obsolete materials. 10. COMMISSIONS
(a) During the term of this Agreement, Composer shall advise Publisher promptly of any commission which is offered to Composer prior to Composer's entering into an Agreement for any such commission so as to enable Publisher to negotiate with the commissioning party to insure that no such commission will violate or infringe upon any of the exclusive rights being granted to Publisher. If Publisher is notified of an offer to commission Composer, Publisher shall advise Composer promptly of such commission offer. (b) Composer shall collaborate with Publisher as to fees to be negotiated with the commissioning organization for preparation of performance materials (score and parts) of such new Composition. Composer and Publisher shall act in good faith in respect to negotiations involved with commissions; however, Publisher cannot guarantee that it will bear any cost associated with any commissioned work until Publisher has had an opportunity to review the commission proposal for that work in accordance with the terms of Paragraph 10 hereof. (c) If Publisher shall decide to enter into an agreement for any commissioned work, Publisher shall be a signatory to the commissioning agreement for that commissioned work. Said work shall thereupon be deemed a Composition. (d) No commissioning agreement shall be deemed to have been entered into by Composer without Publisher's consent, such consent not to be unreasonably withheld. (e) The commissioning agreement shall reflect Publisher's approval of the amounts designated for preparation of performing materials of the Composition, as well as other relevant details of the commission. (f) All monies to be paid to Composer (either as Composer, or as a participating artist in performances of the commissioned Composition) shall belong solely to Composer, and Publisher shall not share in any of such monies. Publisher shall be entitled to recoup its production costs (preparation of scores and parts) out of any monies which are stated to be paid by the commissioning party for such costs for commissioned Compositions.
(g) If Publisher in its sole discretion chooses not to enter into an agreement as to any proposed commissioned work, Publisher will so advise Composer in writing within thirty (30) days of the notification of a particular commission proposal, and Composer shall then be free to make whatever arrangements he deems appropriate for that particular commissioned work, provided that the terms of such arrangements are no less favorable to Composer, or more favorable to another publisher, than the last proposal made to Publisher. If Composer decides to accept terms less favorable to him, or more favorable to another publisher, Composer shall notify Publisher in writing of those terms, and Publisher shall have ten (10) days to notify Composer whether it will accept the commissioned work on those terms, in which event that commissioned work shall be deemed a Composition for the purposes of this Agreement. Should Publisher finally decide not to enter into an agreement for that commissioned work, Publisher shall not be a signatory to the commissioning agreement for that work. 11. ROYALTIES
Publisher agrees to pay royalties to Composer in the amount and in the manner specified below twice annually within 90 days after June 30 and December 31. The royalties to be paid to Composer will be as follows: (a) After production costs of the first printing are recouped, TWENTY percent (20%) of the wholesale price (dealer's sales price) on all copies of the Compositions sold by Publisher, said wholesale price to be the lesser of actual dealer's sales price or 50% of retail. For the purposes of this clause, costs to be recouped are: engraving, film, artwork, and printing for the first press run. On commissioned works where all or a part of engraving costs are covered by the commissioning party, Publisher shall only recoup that cost, if any, which is not paid out of the commission. However, Publisher will recoup costs for required changes to score and parts after the premiere of the work. In the event that any Compositions shall be used in whole or in part by Publisher in conjunction with one or more other works in a folio or album, Composer shall be entitled to receive that proportion of TWENTY percent (20%) of the wholesale price which the Composition shall bear to the total number of copyrighted works contained in such folio or album. No Compositions will be included in any such folio or album without consent of Composer or his successors, such consent not to be unreasonably withheld. (b) FIFTY percent (50%) of the net sums received by Publisher from the licensee in the event Publisher licenses the right to print and sell copies of the Compositions on a royalty basis or otherwise. (c) In the event Publisher permits the Compositions or part thereof to be included in any newspaper, magazine, book, periodical, album, or collection to be published by other than Publisher, the Composer shall receive in lieu of all other royalties FIFTY percent (50%) of any compensation Publisher may receive for such permission.
(d) No royalties shall be paid in respect to the Compositions for bona fide professional or complimentary copies or mechanical derivatives thereof distributed gratuitously or for promotion or exploitation purposes. It is also understood that no royalties are payable on consigned copies of the Compositions unless paid for, and not until such time as an accounting thereof can properly be made. (e) FIFTY percent (50%) of all net sums received by Publisher for any licenses issued authorizing the reproduction of sound recordings of any Composition by any means in any medium, including but not limited to phonograph records, electrical transcriptions, tapes in any format (including analogue or digital), compact discs in any format, and digital transmissions resulting in the delivery of a sound recording (as opposed to a performance of a composition by means of digital transmission which does not result in a reproduction which can be retained by the receiving party). (f) FIFTY percent (50%) of all net sums received by Publisher in respect of any licenses issued authorizing the recording of any Composition in synchronization with visual images of any kind or description by any means in any medium, including but no limited to sound motion pictures, videograms including video cassettes and video discs, all forms of television, cable, satellite and digital transmissions, and all other small rights not specifically mentioned herein. (g) FIFTY percent (50%) of all net sums received by Publisher for the rental of performance materials. (h) FIFTY percent (50%) of all net fees received by Publisher for socalled "grand performing rights" (i.e., ballet, opera, and all other dramatized performances). (i) FIFTY percent (50%) of all net sums received by Publisher from any subpublishing agreements. (j) Composer shall receive Composer's public performance royalties throughout the World directly from the performing rights society of which Composer is a member, and shall have no claim whatsoever against Publisher for any royalties received by Publisher from any performing rights society which makes payment directly (or indirectly other than through Publisher) to writers, authors, composers, and publishers. 12. BOOKS AND RECORDS
Publisher agrees to maintain accurate books and records of all transactions regarding the Compositions referenced herein, which books and records may be inspected once annually by Composer or Composer's agent, at Composer's expense, upon ten business days written notice to Publisher, at Publisher's office in Montclair during regular business hours. Books and records concerning statements sent to Composer will not be subject to question or adjustment after three years have passed following the date of any particular statement. 13. PROMOTION
(a) Publisher undertakes to use its best efforts to promote Compositions in a professional manner for the mutual benefit of Composer and Publisher. It shall be understood that this will include the communication of new works and recordings of the Compositions through press releases, catalogs, newsletters, etc. to relevant persons in the music trade, as well as the providing of the best available quality perusal scores to interested parties in a timely fashion. Publisher shall also use its best efforts to facilitate the scheduling of performances and recordings of Compositions. (b) Notwithstanding the foregoing, the promotion efforts of Publisher shall be engaged in by Publisher in its sole business discretion, and in keeping with the nature of the Composition involved and prevailing economic realities. 14. COPYRIGHT PROTECTION
Publisher shall take all steps necessary and appropriate to apply for and obtain copyright protection with respect to each Composition in any country of the world where copyright protection is available and shall protect, defend (in the manner hereafter provided) and administer the rights of Publisher and Composer during the respective terms of Publisher's rights in each Composition, for the joint benefit of Publisher and Composer. The decision to make any claim or to take any legal action against any alleged infringer of Publisher's rights hereunder shall be made by Publisher. Publisher shall advance all costs and expenses in connection therewith and shall pay to Composer an amount equal to Fifty percent (50%) of any net recovery obtained by Publisher as a result of the maintenance of (each) such claim or legal action, after deduction and repayment to Publisher of all costs and expenses theretofore advanced by Publisher. In the event that Publisher decides against making any claim or bringing of any action, Publisher shall promptly advise Composer to such effect and afford Composer the opportunity (at Composer's expense) to make such claim or bring such action individually, in which event Composer shall be entitled to retain the full amount of any recovery in connection therewith. Composer and Publisher will cooperate with each other with regard to any such claim or action and will make available all information and records that each may have to the other so that Composer or Publisher may be able to effect the intent of this paragraph 14 (a). 15. TERMINATION
Upon termination of this Agreement, Publisher will retain all rights granted herein for all Compositions, provided that Publisher continues to perform all of its obligations under this Agreement in respect of Compositions. 16. PERFORMING RIGHTS SOCIETY AFFILIATION
The rights of Publisher and Composer are subject to the rights vested by each party in ___________ as Publisher and Composer members respectively. Neither party shall terminate its affiliation with ___________ unless agreed to in writing by the other party.
17.
NOTICES
All notices between Composer and Publisher shall be in writing. 18. GOVERNING LAW
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be wholly performed therein. 19. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement between Composer and Publisher, and no modification, amendment, waiver, termination, or discharge of this agreement or any provisions thereof shall be binding unless confirmed by a written instrument signed by Composer and Publisher. In witness whereof, the parties hereto have caused this Agreement to be executed on the date first indicated above.
XYZ MUSIC PUBLISHING CO. By: ________________________________ Its: ________________________________ ACCEPTED AND AGREED TO: By: ________________________________ COMPOSER, Composer SSN: _______________________________
EXHIBIT I Assignment of Copyright For and in consideration of the sum of $ 1.00 and other good and valuable considerations, receipt of which is hereby acknowledged, the undersigned, COMPOSER, hereby assigns, sells, grants, transfers and sets over unto XYZ Music Publishing Company, Inc., its successors and assigns, the following musical composition: [Title] written by COMPOSER and all adaptations, arrangements, dramatizations, translations and versions thereof, together with all right title and interest therein and thereto, now or hereafter known or in existence, including all copyrights in the same and all renewals and extensions of the copyrights therein throughout the World in perpetuity. IN WITNESS WHEREOF, the undersigned has executed this instrument this _____ of __________, 2000.
BY: ________________________________ COMPOSER, Composer
SCHEDULE A TO THE AGREEMENT DATED __________________,2000 BETWEEN COMPOSER AND XYZ MUSIC PUBLISHING CO., INC.
Musical Compositions: