| Subject: arranger agreement |
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Anonymous
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Date Posted: 03:33:32 06/03/03 Tue
5
Arranger agreement1
(IMPORTANT NOTE: Agreements with individual artists have in recent years come under close scrutiny by the courts. In order to determine whether the particular combination of contractual provisions selected from the range of provisions contained in this Form will be enforceable, particular consideration should be given to the matters referred to in Paragraphs 133 [215] et seq ante, and the Form should be adjusted in the light of those matters and whatever commercial considerations are relevant to the proposed arrangements.)
[686]
From: (name of company) whose registered office is at (address) (registered in England no [………]) (the ‘Company’ which expression shall include its successors, assignees, licensees and sublicensees)2
To: (name of arranger) of (address)
Dated: (date)
Dear (name)
‘(Name of original work)’ by (name of composer lyricist etc) (the ‘Work’)
This letter is to confirm the agreement between you and the Company for the engagement of your services as arranger and/or orchestrator and/or adapter (the ‘Services’)3 in respect of the Work upon and subject to the following terms and conditions.
1 Engagement
The Company engages your Services to arrange in accordance with the requirements of the Company the Work and/or orchestrate and/or adapt the Work and deliver to the Company musical scores, orchestral and band parts, demo tapes, software programs and other material reasonably required by the Company (‘Delivery Material’)4.
2 Assignment
In consideration of the Company’s undertaking in paragraph 4 you assign to the Company the entire copyright whether vested contingent or future and all related Rental Rights and all rights of action and all rights of whatever nature in and to the product of the Services and the Delivery Material (to the extent that you are the owner of any such rights in the Delivery Material) to which you are now or may in future be entitled under the law in force in any part of the world TO HOLD to the Company for its own use and benefit absolutely for the full period of copyright including all reversions, revivals, renewals and extensions and you irrevocably and unconditionally waive any and all rights which you may have pursuant to the Copyright, Designs and Patents Act 1988 Sections 77, 80, 84 and 855 and any and all other moral rights throughout the world.
3 Remuneration
As full and final consideration for your Services and subject to the full and timely observance and performance by you of your warranties and undertakings the Company undertakes to pay you the sum of £[……] payable on delivery of the Delivery Material. You confirm that [……]% of such sum shall constitute equitable remuneration for the exploitation of the Rental Rights in relation to the Delivery Material6.
[687]
4 Warranties
You warrant, undertake and agree with the Company that:
4.1 you have attained the age of 18 and are a ‘qualifying person’ within the meaning of the Copyright, Designs and Patents Act 1988 Section 154;
4.2 you are free to enter into this Agreement and are the sole absolute unincumbered legal and beneficial owner of all rights granted to the Company by this Agreement and you have the authority to grant to the Company the rights granted in this Agreement and you have not entered into and shall not enter into any arrangement which may conflict with it;
4.3 the Services shall be original to you and shall not be obscene, blasphemous or defamatory or infringe the copyright, common law right, right of privacy, right of publicity, performers’ right, performers’ property right, moral right or any other right whatever of any person firm or corporation;
4.4 you do any and all acts and execute any and all documents in such manner and at such location as may be required by the Company in its sole discretion to protect perfect or enforce any of the rights granted to it;
4.5 you shall not disclose or make public any information concerning the Work or the business of the Company or this agreement or use the whole or any part of the Work or the product of your Services in connection with any other work without the prior written consent of the Company nor shall you issue any publicity relating to any of such matters or commit any act which might prejudice or damage the reputation of the Company or the Work or inhibit the successful exploitation of the Work;
4.6 you shall return to the Company everything lent to you by the Company for the further performance of your Services including all written material of whatever nature and whether or not revised, incorporated or discarded;
[688]
4.7 the Company shall be entitled to use and authorise others to use your name, likeness, photograph and biography in connection with the Work;
4.8 the Company shall have the right to use, adapt, change, revise, delete from, add to and/or re-arrange the Work or the product of your Services or any part of them and to combine the same with the whole or any part of any other work or works to any extent that the Company shall desire and change or substitute the title and in the event that some or all of the same is or are not used you shall not have any claim for compensation for loss of opportunity to enhance your professional reputation or for any other reason whatever in the form of damages or at all;
4.9 you have not received and/or relied upon any representations, promises or other statements by the Company or any of its agents, employees, members or representatives regarding the amount of income (if any) that may be derived from the exploitation of the Work or the Services in any media whatever, and the Company is not under any obligation to commence or continue the exploitation of the same;
4.10 you acknowledge that your Services comprise the arrangement of a copyright work for which you are not entitled to receive any performance royalties from the Performing Right Society Limited7;
4.11 you shall render your Services to the best of your skill and ability and in willing co-operation with others and follow all reasonable directions and instructions given by the Company, and will punctually observe any requirement for you to attend at such locations and times as the Company may from time to time request;
4.12 you shall indemnify and keep fully indemnified the Company from and against any and all actions, claims, proceedings, costs, awards and damages whatever incurred or arising or paid by or awarded against the Company in respect of or arising out of any breach or non-performance by you of any or all of your undertakings, warranties and obligations under this Agreement.
[689]
5 Interpretation
5.1 For the purposes of this Agreement ‘Rental Right’ means the entire rental and lending right in relation to all copyright works by you within the meaning of the Copyright, Designs and Patents Act 1988 Section 18A(2) to (6) to the extent that the same are included in the Delivery Material8.
5.2 The word ‘copyright’ means the entire copyright including rental and lending right, database right and design right subsisting under the laws of the United Kingdom and all analogous rights subsisting under the laws of each and every jurisdiction throughout the world.
5.3 The term ‘equitable remuneration’ shall have the meaning ascribed to it in EEC Council Directive 92/100 and in the event that there is any conflict between provisions contained in legislation implementing such directive in states in the European Economic Area for the purposes of determining any issue in relation to equitable remuneration in this Agreement the provisions of United Kingdom Statutory Instrument 1996/2967 shall prevail and be binding on the parties9.
5.4 Where the context so admits the product of the Services shall include the entire contribution made by you in connection with the Delivery Material including without limitation the creation alteration and amendment of any work in which copyright subsists10.
[690]
6 Miscellaneous
6.1 Nothing in this Agreement shall or shall be deemed to constitute a partnership or joint venture or contract of employment between the parties.
6.2 This Agreement shall be governed by and construed in accordance with the law of England and Wales the courts of which shall be courts of competent jurisdiction.
Please indicate your agreement with and acceptance of the above by signing the enclosed copy of this letter and returning it to the Company.
Yours faithfully
(signature for and on behalf of the company)
I agree and accept the above and agree to be bound by it.
(signature of arranger)
[691]
1 See generally Form 72 note 1 [1704] post. This Form is intended for use in circumstances where the Company wishes to engage the services of an individual to arrange musical works to be recorded by the Company. The agreement is drafted from the point of view of the Company. Care must be taken to ensure that the minimum requirements of any guild or union agreements are met. See also Paragraphs 133 [215] et seq ante. The agreement makes no provision for acquiring rights in performances of the arranger (see Paragraphs 93 [145] et seq ante).
2 The statement of parties includes successors, assignees and sub-licensees of the Company and, whilst this is acceptable if the terms of engagement are for the payment of a flat fee, this would not normally be acceptable to the Company where any participation in gross receipts or payment of royalties on records sold by sub-licensees was involved. In such circumstances, where amendment is made to the statement of parties the consequential change will need to be made to the grant of rights provisions so that these expressly include successors, assignees and licensees.
3 The arranger will wish to state the precise ambit of the services and the dates and locations on which they are to be rendered to be defined.
4 The arranger will wish to define all material required to be produced. If orchestral parts and band parts are to be provided, the Company will be required to observe the provisions of any relevant agreement of the Musicians’ Union.
5 See Paragraphs 80 [122] et seq ante.
6 See Form 1 note 21 [630] ante.
7 See Paragraph 132 [214] ante.
8 See Paragraphs 119 [180], 120 [181] ante.
9 See Form 1 note 108 [632] ante.
10 See Form 1 note 109 [632] ante.
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