Who Owns The Performances On Your Recordings? Part 2

Continuing with last weeks subject matter, why is it when you hire musicians, producers, vocalists and others that the resulting Master tracks are not “Works Made For Hire”.  If the recording were works for hire then you as the person who paid for their creation might be considered the employer and thus the “author” and owner of the sound recording copyrights.

The idea of work for hire is an exception to the general rule that the creator of a work is the “author” and thus is automatically the owner of the copyright.  There are two kinds of works for hire.  First, a work can be considered a work for hire if it is created by an employee within the scope of his or her regular employment.  If you were to hire a vocalist to sing jingles for you full time and told the person when and where to work, then the jingle recordings might indeed be works for hire.  But that is not the situation in most recording sessions that I know about.  The artist or record label hires the musicians to come to the studio and record for that one album or for a certain number of songs on the album.  Recording that specific album is not their full time job.  They get paid for the project and not as a regular full time employee.  They are independent contractors. 

The second type of work for hire is the situation where one hires independent contractors which is the example given for most recording sessions.  In that situation every one making a creative contribution to the recording will likely be a creator of it and thus an owner of copyright along with the other musicians, vocalists, etc.  However, their work can be considered a work for hire only if two conditions are met:  (1)  the work must be intended to fit into one of nine categories listed in the copyright act AND (2) there must be a signed contract that states that the work when finished will be considered a work for hire.  That is why I stated in last week's post that without the written agreement most songwriters and artists will not own the copyright in the sound recordings they just finished recording and paying for.  Does an EP or an Album fit into one of the required nine categories?  Arguably “yes” – in category number 1 below:

1. A contribution to a collective work

2. A part of a motion picture or other audiovisual work or sound recording

3. A translation

4. A supplementary work

5. A compilation

6. An instructional text

7. A test

8. The answer material for a test

9. An atlas

The lesson:  when you get ready to go to the studio be sure you have anyone making a creative contribution to the sessions sign a work-for-hire agreement that addresses all the requirements of the Copyright Act. 

Who Owns The Performances On Your Recordings?

There seems to be a common presumption that if you pay for the recording session you automatically own the copyrights in the Sound Recordings – that is the Demo or Master tracks.  The Sound Recording copyright needs to be distinguished from the copyright in the underlying song that is being recorded. The sound recording copyright protects the performance of the song.  It protects the performance from piracy.  It prevents others from actually illegally duplicating the sound recordings – or illegally downloading the recordings owned by record labels.

The U.S. Copyright Act grants copyright ownership to the “author” of a work.  In most instances this would be the creator – anybody who made a creative contribution to the work.  That isn’t necessarily the person or company that pays the studio, the producer, the engineer and the players, although it could be.  In the case of your song demos or master recordings in many cases more than one person made a creative contribution:  The Producer, the musicians, the backup vocalists, etc.  This is especially true at the professional level.  Although it has not been a standard practice in the industry, you should have each one of those people sign a simple agreement stating that their contribution to the song is a “work made for hire”.  This should be signed before the recording begins.  The agreement should go even further and state that if the work is not legally a work for hire then the person making the contribution (musician, etc.) is assigning his copyright interests in it to you.  If you have ever signed a recording agreement or a producer agreement you will have seen the work-for-hire and assignment language in the agreement.  Now you know why it was there.

It is becoming much more common that in the case where the “demos” or masters end up having an opportunity to be commercially exploited, having those agreements will be required by the record label, the motion picture company, etc.  And having to go back and get a written assignment from everybody involved in the session can be a real problem later on.  I know because I have tried to help artists about to be signed to a label try to get signatures after the work is done.

I have had many clients and prospective clients believe that their masters or demos are works for hire because they paid for them.  In most instances in the music business that is not going to be true unless the written agreement I referred to is signed by the creators.  And not always true even if there is a written agreement.  I will explain this more thoroughly in my next post.

Two-Second Sampling Infringes

Tuesday a federal court of appeals in Nashville ruled that sampling of two seconds from a sound recording constituted copyright infringement. The infringement was of the sound recording copyright--not the underlying musical composition.

According to an article in Billboard.biz yesterday (September 8, 2004) "a mere two-second unauthorized sample of a guitar solo from Funkadelic's 'Get Off Your Ass and Jam' is enough to constitute copyright infringement of the recording." Prior to this ruling it was widely accepted that in order for a use of a copyrighted work to be considered an infringement, the taking had to be "substantial". However, according to the Sixth Circuit Court of Appeals, in the case of Sound Recording copyrights, any taking, no matter how brief, is sufficient to constitute an infringement assuming all other elements of the case have been proven.