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What should be included in a music licensing agreement?

A music licensing agreement is a legal contract between a rights holder (the licensor) and a party seeking to use copyrighted music (the licensee). It outlines the terms and conditions under which the licensee can use the music.

Here are the key elements that should be included in a music licensing agreement in Kenya:

Table of Contents

  1. Introduction

  2. Parties

  3. Licensed Music

  4. License Grant

  5. License Fees

  6. Term and Termination

  7. Representations and Warranties

  8. Indemnification

  9. Confidentiality

  10. Governing Law and Dispute Resolution

  11. Entire Agreement

  12. Notices

  13. Severability

  14. Waiver

  15. Assignment

  16. Force Majeure

  17. Counterparts

  18. Governing Law and Jurisdiction

  19. Case Laws

  20. Conclusion

  21. TLDR

Introduction

A music licensing agreement is a crucial document in the music industry, ensuring that the rights of both the music creator and the user are protected. It is essential to have a comprehensive agreement that covers all aspects of the music usage, including the scope of the license, the fees involved, and the duration of the agreement.

Parties

The agreement should clearly identify the parties involved:

  • Licensor: The owner of the copyright in the music. This could be the composer, songwriter, publisher, or record label.

  • Licensee: The party seeking to use the music. This could be a film producer, a television broadcaster, a website owner, or a live event organizer.

Licensed Music

The agreement should clearly describe the music being licensed:

  • Title: The name of the musical composition.

  • Artist: The name of the performer or recording artist.

  • Composition: The specific musical work, including lyrics and melody.

  • Recording: The specific audio recording of the music.

License Grant

The agreement should specify the rights granted to the licensee:

  • Scope of Use: The specific ways in which the licensee can use the music. This could include:

    • Public Performance: Performing the music in public, such as at a concert or a live event.

    • Mechanical Reproduction: Making copies of the music, such as for CDs or digital downloads.

    • Synchronization: Using the music in a film, television show, or other audiovisual work.

    • Distribution: Distributing the music, such as through a record label or online store.

    • Adaptation: Creating derivative works based on the music, such as a remix or a cover version.

  • Territorial Scope: The geographic area where the licensee can use the music. This could be worldwide, or limited to a specific country or region.

  • Duration: The period of time for which the licensee is granted the rights. This could be a specific term, or it could be perpetual.

License Fees

The agreement should outline the payment terms for the license:

  • Fee Structure: The method of calculating the license fee. This could be a flat fee, a royalty rate, or a combination of both.

  • Payment Schedule: The timing and frequency of payments.

  • Currency: The currency in which the fees will be paid.

Term and Termination

The agreement should specify the duration of the license and the conditions under which it can be terminated:

  • Term: The period of time for which the license is granted.

  • Termination: The conditions under which the license can be terminated by either party. This could include:

    • Breach of Agreement: Failure by either party to comply with the terms of the agreement.

    • Non-Payment: Failure by the licensee to pay the license fees.

    • Bankruptcy: The bankruptcy or insolvency of either party.

Representations and Warranties

The agreement should include representations and warranties from both parties:

  • Licensor: The licensor should warrant that they own the copyright in the music and have the right to grant the license.

  • Licensee: The licensee should warrant that they will use the music in accordance with the terms of the agreement.

Indemnification

The agreement should include an indemnification clause, which protects each party from liability for certain claims:

  • Licensor: The licensor may indemnify the licensee for any claims arising from the use of the music.

  • Licensee: The licensee may indemnify the licensor for any claims arising from the licensee's breach of the agreement.

Confidentiality

The agreement should include a confidentiality clause, which protects sensitive information:

  • Confidential Information: The agreement should define what information is considered confidential.

  • Obligations: The parties should agree to keep confidential information confidential and not disclose it to third parties.

Governing Law and Dispute Resolution

The agreement should specify the governing law and the method for resolving disputes:

  • Governing Law: The law that will govern the agreement. This is typically the law of the country where the licensor is located.

  • Dispute Resolution: The method for resolving disputes between the parties. This could include:

    • Negotiation: Attempting to resolve the dispute through negotiation.

    • Mediation: Using a neutral third party to facilitate a settlement.

    • Arbitration: Submitting the dispute to a neutral third party for binding resolution.

    • Litigation: Filing a lawsuit in court.

Entire Agreement

The agreement should include an entire agreement clause, which states that the agreement constitutes the entire understanding between the parties:

  • Prior Agreements: The agreement should state that it supersedes all prior agreements and understandings between the parties.

  • Modifications: The agreement should specify how it can be modified.

Notices

The agreement should specify how notices are to be given:

  • Method: The method for giving notices, such as by email, fax, or registered mail.

  • Address: The addresses to which notices should be sent.

Severability

The agreement should include a severability clause, which ensures that the agreement remains valid even if some of its provisions are invalid:

  • Invalid Provisions: The agreement should state that if any provision of the agreement is held to be invalid, the remaining provisions will remain in effect.

Waiver

The agreement should include a waiver clause, which prevents a party from waiving their rights under the agreement:

  • Waiver of Rights: The agreement should state that a waiver of any right under the agreement will not be effective unless it is in writing and signed by the party waiving the right.

Assignment

The agreement should specify whether the license can be assigned to a third party:

  • Assignment of Rights: The agreement should state whether the licensee can assign their rights under the agreement to a third party.

  • Consent: The agreement may require the licensor's consent before the licensee can assign their rights.

Force Majeure

The agreement should include a force majeure clause, which excuses a party from liability for certain events beyond their control:

  • Force Majeure Events: The agreement should define what events are considered force majeure events, such as natural disasters, war, or government regulations.

  • Exemption from Liability: The agreement should state that a party will not be liable for any delay or failure to perform their obligations under the agreement due to a force majeure event.

Counterparts

The agreement should include a counterparts clause, which allows the agreement to be executed in multiple copies:

  • Multiple Copies: The agreement should state that the agreement can be executed in multiple copies, each of which will be considered an original.

Governing Law and Jurisdiction

The agreement should specify the governing law and jurisdiction for resolving disputes:

  • Governing Law: The law that will govern the agreement. This is typically the law of the country where the licensor is located.

  • Jurisdiction: The court or courts that will have jurisdiction to hear any disputes arising from the agreement.

Case Laws

  • Music Copyright Society of Kenya (MCSK) v. The Kenya Copyright Board (KECOBO) [2019] eKLR: This case involved a dispute between MCSK and KECOBO over the licensing of music. The court held that KECOBO had the power to regulate the licensing of music in Kenya.

  • Universal Music Group v. Mdundo.com A/S [2022]: This case involved a licensing agreement between Universal Music Group and Mdundo.com A/S, a music streaming service. The agreement granted Mdundo.com A/S the right to stream Universal Music Group's music in certain African territories.

Conclusion

A music licensing agreement is an essential document for anyone involved in the music industry in Kenya. It protects the rights of both the music creator and the user, ensuring that the music is used in a fair and legal manner. It is important to have a comprehensive agreement that covers all aspects of the music usage, including the scope of the license, the fees involved, and the duration of the agreement.

TLDR

A music licensing agreement in Kenya should include details about the parties, the music being licensed, the rights granted, the fees, the term, termination, representations, warranties, indemnification, confidentiality, governing law, dispute resolution, and other relevant clauses.

Sample Music Licensing Agreement

This Music Licensing Agreement (the "Agreement") is made and entered into as of [Date], by and between [Licensor Name], a [Licensor Type] with its principal place of business at [Licensor Address] (the "Licensor"), and [Licensee Name], a [Licensee Type] with its principal place of business at [Licensee Address] (the "Licensee").

WHEREAS, Licensor is the owner of all right, title, and interest in and to the musical composition entitled [Music Title] (the "Composition"), including all copyrights therein; and

WHEREAS, Licensee desires to obtain a license from Licensor to use the Composition in connection with [Licensee's Use];

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. Grant of License

Licensor hereby grants to Licensee a non-exclusive, worldwide license to use the Composition in connection with [Licensee's Use] (the "License").

2. Scope of License

The License grants Licensee the right to:

  • [List of specific rights granted, e.g., publicly perform the Composition, reproduce the Composition, distribute the Composition, create derivative works based on the Composition, etc.]

3. Restrictions

Licensee shall not:

  • [List of specific restrictions, e.g., use the Composition in a manner that is defamatory, obscene, or illegal, etc.]

4. License Fees

Licensee shall pay to Licensor a license fee of [License Fee Amount] for the License. The license fee shall be paid [Payment Schedule].

5. Term and Termination

The License shall commence on the Effective Date and shall continue for a period of [License Term] (the "Term"). The License may be terminated by either party upon [Termination Conditions].

6. Representations and Warranties

Each party represents and warrants to the other party that:

  • [List of representations and warranties, e.g., Licensor owns the copyright in the Composition, Licensee will use the Composition in accordance with the Agreement, etc.]

7. Indemnification

Each party agrees to indemnify and hold harmless the other party from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

  • [List of indemnification obligations, e.g., any claim by a third party that the use of the Composition infringes their rights, etc.]

8. Confidentiality

Each party agrees to hold confidential all information disclosed by the other party in connection with the Agreement (the "Confidential Information"). Confidential Information shall not be disclosed to any third party without the prior written consent of the disclosing party.

9. Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of [Country]. Any dispute arising out of or relating to this Agreement shall be resolved by [Dispute Resolution Method].

10. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.

11. Notices

All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, sent by certified or registered mail, return receipt requested, or sent by overnight courier service, addressed as follows:

If to Licensor:

[Licensor Address]

If to Licensee:

[Licensee Address]

12. Severability

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.

13. Waiver

No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach.

14. Assignment

This Agreement may not be assigned by either party without the prior written consent of the other party.

15. Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, labor disputes, or governmental action.

16. Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

[Licensor Signature]

[Licensor Name]

[Licensee Signature]

[Licensee Name]

Answered by mwakili.com