What Are
You Recording?
Legal Disclaimer
While
entertainment law is not rocket science – it can quickly get complex.
Hopefully this article will help you stay out of trouble by
providing enough information to allow you to ask the right questions.
To cover all these topics in this article I’ve played fast and
loose with some complex legal issues so do
not rely on this article for legal advice.
Check out the books I’ve listed and
talk to more experienced musicians. And
if you’ve got questions regarding these issues, contact an attorney
familiar with entertainment law, your state law, and your particular
situation.
Songs
You’re
in the studio, plugged in, tape’s rolling, ready to go.
What are you recording?
·
Your tunes.
If you wrote everything you’re recording, congratulations.
Skip the rest of this topic.
·
Yours and someone else’s tunes.
You co-wrote a song with someone else.
You are free to record that song just as if you had written it
yourself. But the issues of
album credit, copyright registration, royalties, and publishing rights
should be discussed and agreed to, in writing and signed, before you
record the song. You do not
want to put time and money into recording, mixing, and mastering if you
and the other co-writer can not agree on who gets paid and how.
·
Covers. You’ve
decided to do the definitive version of your favorite song from second
grade. Great.
Consider the following:
·
Is the song subject to copyright law?
As we discussed, copyrights are limited to a specific number of
years. If the copyright has
expired, the song is in the public domain and you can record it as you
would your own song. Keep in
mind that certain arrangements of the song may be under copyright.
For example, if you want to use a very distinctive and original
arrangement that somebody else has used, that arrangement may be subject
to its own copyright. So, while you could record the tune Amazing Grace, because the song itself is in the public domain, you
could not use Elvis Presley’s copyrighted arrangement of the song.
·
If the song is protected, was the song previously
recorded and publicly distributed? If
so, then you can simply pay the copyright holder a fee for a “mechanical
license”. The fee is set in
federal statute and is currently about seven cents for the first five
minutes of your version. That’s
seven cents per song per copy. For
example, one cover tune and 1000 copies means you owe about $70 to the
copyright holder. If your version is longer than five minutes, the fee goes up
accordingly.
This
license allows you to record and distribute your version of the song.
The nice thing is that the fee is compulsory, that is, you do not
need anybody’s permission. For
example, if you want to do a punk rock version of White
Christmas, Irving Berlin’s estate can not say no. As long as you pay the fee, you’ve got the license.
Of course you can always contact the copyright holder and try to
negotiate a lower mechanical license fee.
If
you’re sure that your cover is still subject to copyright law and
you’re willing to pay the set fee, check with the Harry Fox Agency
online song database at www.nmpa.org/hfa,
or contact them at HFA 711 Third Avenue, New York, NY 10017,Tel: (212)
370-5330, Fax: (212) 953-2384. Many
copyright holders use Harry Fox to collect their mechanical license fees.
If Harry Fox controls the mechanical license rights for the song
you want to cover, you should be able to get the license without going
through an attorney.
·
What if the song has not been previously recorded
and publicly distributed? In
these cases there is no compulsory license or set fee.
You must then, through negotiations with the copyright holder, get
that person’s permission to allow you to be the first to record and
publicly distribute the song. The
same holds true if you want to use somebody
else’s poem as lyrics for your song.
Even if the poem was published in written form, if the poem is not
in the public domain, you must get the copyright holder’s permission to
use the words.
Finding
out what is and is not in the public domain can be a challenge.
The recent federal copyright extension legislation has made that
job even more exciting. Even if you’re sure that the work you want to use is still
protected, finding the copyright holder, not always the author, can be a
daunting task. Again, an
entertainment attorney:
·
could help locate the copyright holder,
·
could be used to negotiate the terms of the license, and
·
should be used to draft the licensing agreement.
Musicians
We
left you in the studio ready to record the tunes. Who’s in the room with you, or who’s coming in later?
How much are you paying them, and why?
If this is a solo project and there won’t be anybody else
recording, congratulations. Skip
the rest of this topic.
·
Who gets paid?
·
Other members of your group.
Paying members of your group, band, musical collective, whatever,
for recording time depends on how your group is structured.
It may also depend on who is paying for the project and how
proceeds from the project will be distributed.
Typically, if all members of the band have contributed to the
project and they will all be reimbursed for expenses and share in the
proceeds, no one gets paid for the actual recording.
However, if the project is being funded by one or two people and
the proceeds are not being shared among the other members, then some
recording compensation for those other members seems justified.
Make sure that each member of the group understands what they will
get out of the project. Again,
the band should have some written and signed agreement outlining what
happens to their creative contributions to the songs on the CD.
·
Side-Artists.
You decide that song three needs a punched-up lead.
You call the local sax-god and he lays down the part.
He’s agreed to work for union scale, you pay him, and that’s
that. Or is it? Six months
later, song three is getting air play and sax-god calls you and wants to
know where his performance and copyright royalties are.
Oops. No work-for-hire
agreement or copyright transfer. While
he may be willing to sign a copyright transfer at this point (technically,
a work-for-hire agreement is only good if signed in advance), don’t be
surprised if the price just went up.
This
is Important: Make sure that all side-artists agree, in writing and
signed, that you hold all rights to their contributions.
·
How much do they get paid? A common practice is to pay side-artists the amount decided
by the American Federation of Musicians, in other words, union scale.
Scale can vary from local to local, so call the union and find out.
In some smaller markets, non-union studios may use a lower scale. Again, call around and find out what is customary.
·
Indemnification.
Sax-god, after signing an express work-for-hire agreement,
lays down a great part on song three.
What a guy, what talent, what creative genius.
Six months later, song three is getting air play, and you get a
court order confiscating all copies of your just-released CD and an
injunction prohibiting you from making or selling any more because sax-god
stole his solo from a copyrighted work.
What a guy, what a mess, what now?
Important:
Make sure that all side-artists agree, in writing and signed, to
indemnify you for any copyright infringement.
You signed one for the studio, your side-artists can sign one for
you. Make sure that the
indemnification clause also covers the possibility that sax-god may be
under contract with a label or another studio and he may not be able to
enter into an agreement as a side-artist.
Bottom
line: Every musician who lays
down a track, even if the track is not used or even if no money was
exchanged, must be clear on what they keep and what they give up – in
writing, signed.
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