Dear Simon,
With my apologies for my delay I confirm that I have examined the draft and my advice and comments on the draft follow in this letter. Chris Mensah has asked, and you have agreed, that I will send him a copy of this letter. My comments follow the numbered paragraphs of the draft.
1. It appears from this clause that the band has already signed a management agreement with Chris. The clause provides that he is not entitled to commission any income that you derive from the publishing agreement. This is how it should be. Towards the bottom of the clause there is mention of “the Recording Agreement”. This may be a mistake for the Publishing Agreement or you may have signed a recording agreement with Chris. If it is the latter then the clause should also exclude his right to take commission on the income that you derive from the recording agreement. If band has already entered into a recording agreement and management agreement and then enter into this publishing agreement Chris will have control over all major aspects of your career so you should be very convinced that he can do a good job for you.
It says that Chris has incurred expenses to the sum of £6647 and you should ask for receipts and vouchers to justify this figure. Chris will be entitled to recover this amount out of the income that you derive from the publishing agreement only. The management expenses will have ceased to be recoupable by Chris under the management agreement.
2. Under this clause you give Chris the right to deal with the compositions written by you during the term of the agreement (or within one year of the end of it) throughout the world as if they were his own for a period equal to the length of the agreement plus 15 years from when it ends. This provision also includes all the titles listed in the schedule. In clause 2(d) he can grant licenses for the use of your compositions in films, TV and advertisements. It is usual for this right to be subject to your approval because you may not want your music used in a film or advertisement of which you do not approve. For instance, if you were a militant vegetarian you may not want your music used in a MacDonalds’ advertisement.
Sub-clause (g) gives Chris the right to make adaptations, translations and arrangements of your music and it is usual for this to be done only with your prior consent. I have added wording to the foot of this clause to protect you.
3 & 4 The effect of the two clauses is that Chris will own the rights in the music
written by you during the term of 1 year (3 years if he exercises his option to
extend the agreement at the end of the initial period). He will hold that music
for a period of 15 years after the end of the agreement. This is the sort
of provision which is frowned upon when demanded by a big publisher and I do
not think that you should agree to such onerous terms with a an untested
publisher.
I have deleted the last two sentences of clause 4 because Chris should not find it difficult to remember to take up the option. He only needs a diary and he has not got a lot of writers to look after. If he takes up his option he will pay you an advance of your royalties of £5000.
5. Once under contract to Chris you must not give your music to any other person or
company. He will have the right, having obtained your prior approval, to use
your name, photos and biographical details for promotion.
6. This clause mentions a sum of £1491 as a contribution to your recording costs which is recoverable by Chris out of your royalties under the publishing agreement. I do not know if this in addition to the figure mentioned in clause 1 or is included in it and I advise you to check this with Chris.
Clause (b) provides that Chris will pay you £5000 if he exercises the option. This is a repeat of the figure mentioned in clause 4 above. If any royalty statement given to you in the first two years of the option period shows that your royalty account is in credit you will be paid another £5000 on the telephone conversation yesterday with you and Stephen Cotton,your delivery of an invoice to Chris.
7. You will receive 75% of all the income derived from the exploitation of your
music received by Chris in the UK. This is reasonable. This royalty is
based on the money that Chris receives in the UK. If your music is exploited
outside the UK Chris will have to use an overseas publisher to administer his
business. The overseas publishers will charge him an administration of at least
20% and Chris will pay you 75% of what he receives. For example, if your
overseas income is £1000, the overseas publisher will send Chris £800, and he
will pay you 75% of £800 which is £600. The reduction does not seem much
with small numbers but if you add a zero to the figures they become a substantial
difference between your overseas income and your received income. Big
publishers do not deduct an overseas administration fee so, in the example above
you would receive £750 of your overseas income if you were signed to a big
company.
The deduction made by a sub-publisher in clause 7(c)(iii) must be limited to 20%.
I have added appropriate words.
The Performing Rights Society (PRS) collects a fee for the public performance of music and pays 50% of the income to the publisher and 50% to the writer. Clause 7(b)(iv) provides that you will get 40% of the publisher’s share which makes your PRS income up to a total of 70%. However, you are receiving 75% of all income so that the figure of 40% should be 50%.
If you have had your music recorded and released on records you should join
MCPS and PRS if you have not done so already.
8. The accounting provisions are standard in the music industry but I have added a
standard sentence dealing with underpayment.
9. Provided that you write all your own songs you need not bother with this clause.
Your moral rights (in sub-clause (e)) are the right to have your name associated
with your music and the right not to have your music used in a derogatory way.
10. I have dealt with the Retention Period in my comments to clause 3 &4. I think
that the period is too long and should be reduced to 10 years.
It is also very important that if any composition assigned to Chris under this
agreement is not published during the term of the agreement you shall have the
right to have it returned to you at the end of the term. I have added this provision
as a new sub-clause 10(c)
11. I have added words to ensure that if Chris decides to take legal action he will be
responsible for the costs.
The remaining clauses are self explanatory.
You have to be sure that Chris can do a job good for you as your publisher. If you know of any other artists that he has managed or signed to a recording of publishing agreement you should talk to them to find out how they have done. Alternatively, you could ask him what success he has had with other artists. I see that you are assigning to him a long list of songs in the schedule to the agreement. Have any of these songs been released on records yet? If they have, have you received any income from them?
Under your management agreement with Chris he is not entitled to commission income from the publishing agreement. If you have signed a recording agreement with him he should not be able to commission your income from that either.
I enclose the draft agreement on which I have made a few handwritten amendments and I have sent a copy of this letter and amended version to Chris as you requested.
I have addressed this letter to you but it is, of course for all the band. Please call me if any of you have any questions. I will send my invoice to you after I have heard from you.
Yours sincerely,
Robert White
