Appendix 2
This Master(s) License Agreement (“Agreement”) is made and entered into as of ____________, by and between __________________(hereinafter referred to as “Licensee”), and _______________ (thereinafter referred to as “Licensor”).
WHEREAS, Licensor owns or controls the copyrights in and to the following master sound recordings (hereinafter referred to as the “Master[s]”):
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“________” featuring the performance(s) __________________________________________
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“________” featuring the performance(s) __________________________________________
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“________” featuring the performance(s) __________________________________________
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“________” featuring the performance(s) __________________________________________
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“________” featuring the performance(s) __________________________________________
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“_________” featuring the performance(s) _________________________________________
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“_________” featuring the performance(s) _________________________________________
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“_________” featuring the performance(s) _________________________________________
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“_________” featuring the performance(s) _________________________________________
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“_________” featuring the performance(s) _________________________________________
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“________” featuring the performance(s) __________________________________________
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“________” featuring the performance(s) __________________________________________
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WHEREAS, Licensee desires to reproduce, market and sell mechanical and/or digital copies of the Master(s) as part the commercial album release entitled “____________” (the “album/single”), and in consideration of the mutual covenants hereinafter set forth, the parties hereby each agree as follows:
- Subject to the limitations set forth hereunder, Licensor hereby grants to Licensee a non-exclusive license, to reproduce, use and otherwise exploit the Master(s) as part of the single and/or album, throughout the territory of the Universe, including without limitation, the right to manufacture, market, distribute and/or sell mechanical and/or digital copies of the Master(s), in any and all formats, configurations and/or means of delivery now or hereafter known or in existence (including, but not limited to, compact discs, vinyl, vinyl, analog and digital cassette, super audio discs and all digital or digitally delivered formats). In connection with the forgoing, Licensee shall be permitted to edit and/or modify the Master(s) to meet the Licensee’s technical specifications with regard to the single and/or album, without having to obtain Licensor’s further consent. In connection with foregoing grant of rights, the Licensee shall have the right to market, distribute and/or sell copies of the single and/or album, including reproductions of the Master(s) embodied thereon, and to license or use the same in connection with films, television, video clips and/or music videos.
- Licensee agrees that the Master(s) licensed hereunder shall only be exploited as part of the single and/or album, and that said Master(s) shall not be exploited separately from the single and/or album, until and unless the parties hereto have negotiated a separate written agreement calling for additional compensation to the Licensee in return for granting such additional licensed rights. Notwithstanding the foregoing, Licensee shall be permitted to facilitate the public performance and/or broadcast of the individual Master(s), or any of them, in connection with promoting sales of the single and/or album.
- In connection with the other rights granted herein, the Licensor hereby further grants to Licensee the non-exclusive right for the duration of this Agreement to use the respective names and likenesses (including photographs) of the Licensor, and of each of the individuals whose performances are featured in the Master(s), in connection with the advertising, promotion and/or exploitation of the single and/or album, including without limitation, in connection with the packaging and/or liner notes for commercially released copies thereof, and/or other products sold or offered for sale by or through the Licensee.
- To the extent that Master(s) are included within the final released version of the single and/or album, a promotional credit shall be included, listing Licensor’s ownership of the Master(s), as part of the liner notes therefore. Notwithstanding the foregoing, no casual or inadvertent failure by Licensee and/or by any third parties to include the foregoing credit shall constitute a breach of this Agreement by Licensee.
- In consideration of the rights granted herein, the Licensee shall pay to Licensor, on all copies of phonorecords embodying the Master(s) which are manufactured and sold by or through the Company, a royalty equal to a pro-rata share of sixteen percent (16%) of the “net” suggested retail list price (“SRLP”) customarily recognized for sales of record albums through United States normal retail channels. The foregoing pro-rata share shall be based upon a fraction, the numerator of which is the number of Licensor’s Masters actually included as part of the single and/or album, and the denominator of which is the total number of master recordings embodied on the single and/or album. For example, if ten master recordings are included on the single and/or album, two of which are the Licensor’s Masters, the Licensor shall be entitled to royalty of two-tenths (2/10) of 16% of the “net” suggested retail list price (“SRLP”), subject to the following:
- (a) Amounts payable to Licensor hereunder shall be subject to all standard deductions, withholds and/or reductions customarily recognized within the record industry, in connection with the sale of phonorecords, including without limitation, standard record industry deductions or adjustments, as applicable, for packaging, breakage, free goods, new technologies, reserves and distribution fees, in addition to all other expenses incurred in connection with the single and/or album, before calculating any amounts due to Licensor. Royalties shall otherwise be payable only as to amounts that are actually received by Licensee;
- (b) The royalty otherwise payable to Licensor hereunder shall be reduced by one-half (50%) of the amount otherwise due, with regard to sales of records embodying the Compilation (i) where the purchaser or retailer is located outside of the United States; or (ii) where such records are sold at less than the full SLRP (e.g., sales through record clubs, “rack jobbers”, military channels, etc.). Notwithstanding the foregoing, no royalty shall be payable as to phonorecords given away for promotional purposes and/or sold as scrap, cutouts, or at less than 50% of the full SLRP;
- (c) Licensee shall render to Licensor statements of account as to any monies payable hereunder, within thirty (30) days after the live event where the single and/or album CD will be sold to customers. Each statement shall be accompanied by appropriate payment due in connection therewith, if any. No statement shall be due for periods for which no payment is due. Licensor shall be deemed to have consented to all statements rendered to Licensor, and said statements and other accounts shall be binding upon Licensor and not subject to any objection for any reason, unless specific written objection setting forth the basis thereof is given to Licensee within one year from the date rendered. Payments provided for hereunder shall be computed as of the date each such statement is due. All statements and payments, as well as all formal notices and other correspondence to Licensor may be delivered via first-class United States Mail, postage prepaid, at the address set forth herein below for Licensor, and the effective date of delivery thereof shall be the date of mailing;
- (d) Any payment obligation provided for hereunder is contingent upon the actual inclusion of the Master(s) within the single and/or album. In other words, if the Master(s) is not actually included as part of the single and/or album, no payment shall be due to Licensor. Nothing within this Agreement shall require the Licensee to actually include the Master(s) on phonorecords released by through the Licensee.
- The Licensor hereby specifically represents, warrants and agrees as follows:
- (a) That the undersigned Licensor who owns or controls the copyright in/to the Master(s) is over the age of 18 years and has the right, power and authority to grant the rights herein contained, including without limitation, the right to license and otherwise exploit both the Master(s), and the single and/or album embodied within the Master(s); the Licensor further represents and warrants that no other person, firm or corporation has any right, title or interest in or to the Master(s) or any copy or duplicate thereof, inconsistent with the Licensor’s rights therein, and that there are no liens, encumbrances and/or obligations upon or in connection with the Master(s) or with the performances embodied therein;
- (b) That Licensor has paid in full any and all costs of recording, musicians’ fees and/or royalties to any artists due in connection with the recording of the Master(s); and has obtained the appropriate permissions, assignments and/or disclaimers of ownership from all individuals who have contributed to the making of the Master(s); that Licensor will be solely responsible for all the above-stated costs, fees and/or royalties in connection with the contributions and/or services of the artists and musicians whose performances are embodied on said Master(s);
- (c) That Licensor shall ensure that all necessary permissions have been obtained from the copyright owners of the musical compositions embodied in each of the Master[s] (hereinafter referred to as the “composition[s]”) including without limitation, the Consent to Mechanical License set forth at the end of this Agreement, and that Licensor shall remain solely responsible, as between the Licensor and Licensee, for payment of all mechanical licenses fees which may become properly due to the owners of the composition(s) embodied within the Master(s), in connection with uses of the Master(s) pursuant to this Agreement, and that Licensor shall specifically indemnify and hold Licensee harmless against any/all costs, damages, or claims pertaining to the use of the Composition within the Master(s);
- (d) That Licensor shall indemnify, and hold Licensee and its successors, licensees and assigns harmless, from and against any and all claims, liabilities, losses, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees) otherwise arising from a breach of any of Licensor’s warranties hereunder, including without limitation, any and all claims and/or liability arising out of, or in connection with the exploitation of the Master(s), and/or the Composition and the performances embodied therein.
- The parties hereto agree that ownership of the single and/or album, including all rights therein and thereto, shall be belong solely by Licensee, subject to the Licensor’s ownership rights in and to the Master(s), and that the Licensor shall otherwise have no rights in and to said single and/or album. The rights granted under this Agreement shall continue uninterrupted and in perpetuity for the life of the copyright in and to the Master(s), and any/all renewals and extensions thereof. Licensee may assign and/or sublicense its rights under this Agreement. The provisions of this Agreement shall otherwise apply to the heirs, legal representatives, successors and assigns of the parties hereto.
- The parties hereto hereby agree that any/all disputes arising out of the subject matter of this Agreement shall be submitted for mediation in accordance with the rules of the Arts Arbitration and Mediation Services (AAMS), a program of the California Lawyers for the Arts. If mediation is not successful in resolving the entire dispute, any outstanding issues shall be submitted to final and binding arbitration, in accordance with the above-described AAMS program. Attorney’s fees and Costs shall be awarded to the prevailing party in any dispute, including arbitration, but excluding mediation, arising out of the subject matter of this Agreement.
- Licensor hereby fully releases and absolves ____________________, including without limitation, its directors, officers, instructors, licensees, assigns, agents and employees, from and against any and all claims, damages and/or liability, whether known or unknown presently, arising out of, or in connection with, the subject matter of this Agreement, including without limitation, the use and/or exploitation of the Compositions.
- The Licensor hereby certifies and warrants that he or she has had the opportunity to have this Agreement reviewed by his or her own respective legal counsel, and that he or she each has otherwise read the same in its entirety and understand all of its terms and provisions, and in signing below, certify that he or she each finds the terms hereof to be fair and reasonable.
- Nothing contained in this Agreement shall be deemed to construe either party as a partner or employee of the other party. This Agreement expresses the complete understanding of the parties with regard to the subject matter hereof, and may not be amended except in a writing signed by the parties. This Agreement, and the terms hereof, shall be governed by ________________ State law. Should any part of this Agreement be deemed invalid for any reason, the remaining terms hereof shall remain in full force and effect.
IN WITNESS HEREOF, the undersigned now enter into this agreement as of the date above written:
Licensor
Name ______________________________________
Title _______________________________________
Authorized Signature __________________________
Address _____________________________________
___________________________________________
Date _______________________________________
Licensee
Name ______________________________________
Title _______________________________________
Authorized Signature __________________________
Address _____________________________________
____________________________________________
Date ________________________________________