Copyright Q: "sound recording" vs "musical arrangement", "lyrics"

mwande23

New member
Suppose, hypothetically, you made a fairly decently produced recording of a band a number of years ago, before some its members became fairly famous. You're 95% certain that they never bothered to copyright the material they played for that recording, and so you file a SR copyright registration form with the LOC claiming "sound recording" copyright authorship. However, you don't copyright the lyrics or musical arrangement because it isn't really yours, suppose.

Do you then have legal permission to sell and distribute that music? Suppose the original musicians who wrote and played the music claim sound arrangement and lyric copyright authorhsip, perhaps by filing a SR or PA form, and they wished to stop distribution of this music. Which copyright takes precedence for the actual sale of that musical recording?


[This message has been edited by mwande23 (edited 04-03-2000).]
 
Technically, a song is copywritten the moment it's finished in a completed form... whether that's on tape with the whole band or artist playing it, or it was completed on paper by the writer.
You would have to be able to somehow "prove" that you either...
A: Created the song....

(or)

B: Bought or was given all rights to the material in question

The only way it would really matter is if the music in question became a hit. Then you'd be tied up with legal wrangling and you're gonna lose unless you can prove you obtained the copyrights with the proper authorization.
Translation: Bad idea... write your own stuff.

[This message has been edited by Buck62 (edited 04-03-2000).]
 
What do you mean by "created the song"? I produced and recorded it, I certainly created the sound recording.

And while technically the song is copyrighted as soon as it is created, doesn't it matter in a practical sense if the musicians never actually registered it? (Although they could register it now claiming authorship of words and music, just not sound recording, since I've done that).

BTW (don't take this personally) are you sure you know what your talking about? This isn't really that hypothetical, I need to know for sure. Perhaps I should be talking to a lawyer...

[This message has been edited by mwande23 (edited 04-03-2000).]
 
yo B! peep it, if you RECORDED it, (meaning engineered, you sat behind the console and pressed the record button and such) yeah, PRODUCED (arranged, composed any material on the supposed track) yeah

1) who ever sent the papers off first initially has the right to redeem the song thiers.

2) if they never sent off the copyright forms
but they did the song, technically who ever signs the form and sends it off to Washington has the right to claim the song.

3)Lyrics, if you claim on the form YOU wrote them, and no one else submitted the form, you by all means retain rights, but if you lied that's other consequences you have to deal with if someone else wrote it and are trying to retreive royalties, or rights over the SR recording and lyrics.

4) you dick someone, you'll get yours in the end --- think about it

5)please dont get it twisted to PRODUCE you must play, orchestrate, arrange etc.. not sit behind the console, to RECORD means absolutely dick, if you sat behind a BRC and cued someone to take 1 or 100, you recorded but that's what ENGINEERS DO,
 
I am not a lawyer, but I play one on a guitar. (okay, it was lame, but not bad for no thought put into it... :))

Not entirely true Bliss about "whoever sends it off first".

Buck62 is right on the money here about copyrights. You would need a lot of people purjuring themselves under oath to get a judge to believe that you are entitled to the rights of the tune. Basically, all these purjurs would be saying that your wrote it and not the artist who actually did. It is WHO wrote the tune that counts, not who tried to claim it first with a copyright. Anyone can send in a copyright for anything, but it is a matter of whether it will hold up under scrutiny that is the issue here. This has been a precendent for a long time now and I can remember reading stuff about this long ago when I was submitting music to labels.

If you want to talk publishing rights, you may have a little case here, but even then, you need the copyright holder to sign over the rights to publish the music.

mwande23. Save yourself a lot of legal headache's and fines (when those artist's sue you, you will be paying their legal fee's too... :() Get their permission.

I produce "techinically" uncopyrighted music all the time. Me producing it does not mean squat unless I have something in writing saying they are making me a co-writer of the music because I produced it. I would consider a deal like this if I was reasonably sure that the band's recording was going to make money, or at least the songs would. But most of the time I am just happy to get a fee for producing.

If the band owes you money for the recordings, about your only recourse in getting that money back would be to sell any properties you have in your possesion that is theirs, but, you would need a contract stating that you have a time limit on how long you will wait for payment before selling. Also, you would need to give the artist a fair warning in writing that you intend to sell the tapes if they don't pay. This can include the original tapes, but, the artist retains all the "intellectual rights" (that is basically what a copyright is) to the song. So, you can sell the tapes, but not the music on them. So, hopefully the band doesn't owe you too much money because used tape doesn't sell for much these days.... :)

Being the engineer means nothing. Once again, if they owe you money, you could sell the tapes, but that is all. If you choose to record them for free, well, a judge would probably think you are a swell guy for doing so, but is not going to give you rights to the songs just for that reason even though the artist didn't "formalize" the copyright.

You may be getting this all confused because of all the stories about the early "ethnic" artist's that were being screwed by record lables out of their copyrights. But, that was then and this is now. The court's will in almost every case judge for the artist in copyright cases.

Good luck.

Ed

[This message has been edited by sonusman (edited 04-03-2000).]
 
Bliss,
Are you sure you're not getting these mixed up yourself? I understood "producing" to mean something apart from composing and arrangement. I see loads of music which is composed and arranged by the musicians, but "produced" by someone else. In this context I thought "produce" related more to the recording process; yes, that's what sound engineers do, but sometimes sound engineers and producers fill the same role, usually for low-budget stuff. I figured the "producer" was the one responsible for creating the recording.

Note again that when you file a SR form to register your music, you must claim the type of authorship, e.g. "sound recording", "words", "musical arrangement", or some combination of these. I've only claimed "sound recording", since that's what I actually made, see my point?

BTW, for practical purposes, I'm not trying to make any real money off of this; it isn't going to a big hit or even widely distributed. I just want to make sure nobody comes after me if I happen to sell a half-dozen copies via mail order for $10 or something, it isn't a matter of screwing anybody over for money.

Besides, this was certainly recorded with the band's permission (indeed, they asked me to do it), and they let me keep the original recordings gratis.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by sonusman:
Being the engineer means nothing. Once again, if they owe you money, you could sell the tapes, but that is all. If you choose to record them for free, well, a judge would probably think you are a swell guy for doing so, but is not going to give you rights to the songs just for that reason even though the artist didn't "formalize" the copyright.
<HR></BLOCKQUOTE>

OK, this is the most direct answer I've seen - can some legal-type person confirm this? My understanding of the law is that what ultimately matters the most is what a judge will do, so if someone can cite an actual precedent or something, that would help.

Again, I'm not looking to screw someone over on the money here; after re-reading my original post it kind of sounds like I am, but really, I'd be surprised if more than two people actually bought this recording. And I doubt the original artists would come after me, they are old hometown friends, at most they'd ask me to stop selling it. I'd try to get permission if I knew how to get in touch with them, and I'd be glad to send them royalties if any money WAS made, but I haven't seen them since their last tour here five years ago.
 
BTW - here's another thought:

What if I don't actually sell the music, but just give it away to the handful of people who might want to hear it? Does that make any difference?

And for the record, whether it matters or not legally, I did do a lot more than "push the record button" - the recording equipment was all mine, I moved it and set it all up, supplied the tape, and did all recording work, including all mixing and mastering, all gratis. They played the instruments and wrote the songs/lyrics. I kept all masters gratis. There was no one else involved. Did I engineer it or produce it - I certainly don't know, if someone can help me out here I'd appreciate it.

Lastly I don't want to screw them over because I like them, they're cool guys and not some big jerk hollywood rock stars now, despite the fact that they've since won grammy nominations. I'll see if I can't get in touch with them and work it out.

[This message has been edited by mwande23 (edited 04-03-2000).]
 
You asked for advice, and you got it.
It was damned good advice, but you still think we're a couple of idiots and that you have a case.
Well, go pay a lawyer two hundred and fifty bucks and he's going to tell you the exact same thing... in a more eloquent way, of course, so you feel like you got your money's worth.
Say we were kids, and I left my homemade go-kart over at your house. You wouldn't OWN it just because you decided to paint it a different color... it's still MY go-kart, even though you painted it and claim it as yours.
I created it, therefore, it is mine.

The key word here is "authorship", when it comes to copyrighting a song.
If you didn't "write" it, you got no "rights" to it. Unless you "buy" the rights.
BTW, (don't take this personally) do the words "common sense" mean anything?
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Buck62:
You asked for advice, and you got it.
It was damned good advice, but you still think we're a couple of idiots and that you have a case.
<HR></BLOCKQUOTE>

NO, I do NOT think this - Please read what I said above more carefully. I BELIEVE YOU, I think you are RIGHT, I'm not claiming I have the musical rights to distribute this - I'm just trying to CLARIFY some of the details of what you all are saying.

Please read my last post - I SAID I WOULD CONTACT THE ARTISTS AND MAKE SURE THIS IS OK WITH THEM (i.e. that I get permission.) There is an excellent chance that these guys will not really care and would grant me permission because they have moved on to much bigger and better things. If they don't give me permission, then fine, I won't publish it, it isn't that big a deal. I'll even let em have the masters back for free if they want em, but I doubt they care that much. Like I SAID, I still like these guys, I'm not out to dick them over, I will talk to them and find out what the deal is, before I do anything, OK?

Personally, I don't know what the hell COMMON SENSE has to do at all with copyright law. But if I REALLY was going to pay a lawyer to tell me this I wouldn't have bothered coming here in the first place; believe me, I don't have money to spend on a lawyer, I'd just like to hear some lawyerly details, what's the problem?

And besides I'm interested in the topic - is there something unreasonable about asking for an actual legal precedent or something?


[This message has been edited by mwande23 (edited 04-04-2000).]
 
mwande23,

Sending in forms to the US Office of Copyrights is just REGISTRATION of a copyright that already existed. Buck62 is right.

As far as claiming sound recording authorship via form SR.... Regardless of if the band members REGISTERED the song(s) or not, if they wrote it, they own the copyright to its lyrics. Whether you have a legitimate right to share or own the SR copyright depends on your relationship with the band members when the recording was made.

A few questions: Were you paid for your services at the time? What did the band regard you as... an engineer, a producer? Do you have any agreements (signed or verbal) with the bandmembers as to the nature of your relationship? Was it explicitly clear that you would ultimately function as a label (which would simply be defined as selling/transferring and/or distributing product)?

All these questions and more are important, because by selling product, you are asserting that you have sole right to do so. It doesn't seem that you do, because even if you were supposed to "function" as a label, it doesn't appear that you have a royalty rate that the band would be paid. Remember, even if you sold and/or distributed their product, the artist/Band STILL is paid a royalty.

All that you've said so far seems to indicate that you're doing or thinking of doing this stuff behind their backs. For me, it spells lawsuit.

If this were totally on the up and up, there would be a written or verbal agreement between you and the band as to your role. If you and the band were functioning as business partners in a straigt up deal and you were the engineer/producer, then it's likely that you and the band would have split profits from the sale of product. But just because you engineered/produced a recording (for payment or for free) doesn't give you the legal right to sell product without the consent from your business partners (the band).

If I were you, I would contact these guys/ladies and arrange a fair profit share or try to buy the rights of the masters from them. This isn't legal advice, but my educated opinion.

Rev E,
Not a lawyer, but an intellectual property professional.
 
mwande23,

Sending in forms to the US Office of Copyrights is just REGISTRATION of a copyright that already existed. Buck62 is right.

As far as claiming sound recording authorship via form SR.... Regardless of if the band members REGISTERED the song(s) or not, if they wrote it, they own the copyright to its lyrics. Whether you have a legitimate right to share or own the SR copyright depends on your relationship with the band members when the recording was made.

A few questions: Were you paid for your services at the time? What did the band regard you as... an engineer, a producer? Do you have any agreements (signed or verbal) with the bandmembers as to the nature of your relationship? Was it explicitly clear that you would ultimately function as a label (which would simply be defined as selling/transferring and/or distributing product)?

All these questions and more are important, because by selling product, you are asserting that you have sole right to do so. It doesn't seem that you do, because even if you were supposed to "function" as a label, it doesn't appear that you have a royalty rate that the band would be paid. Remember, even if you sold and/or distributed their product, the artist/Band STILL is paid a royalty.

All that you've said so far seems to indicate that you're doing or thinking of doing this stuff behind their backs. For me, it spells lawsuit.

If this were totally on the up and up, there would be a written or verbal agreement between you and the band as to your role. If you and the band were functioning as business partners in a straigt up deal and you were the engineer/producer, then it's likely that you and the band would have split profits from the sale of product. But just because you engineered/produced a recording (for payment or for free) doesn't give you the legal right to sell product without the consent from your business partners (the band).

If I were you, I would contact these guys/ladies and arrange a fair profit share or try to buy the rights of the masters from them. This isn't legal advice, but my educated opinion.

Rev E,
Not a lawyer, but an intellectual property professional.
 
The part on the SR form that refers to "musical arrangement" does not mean that you have any rights if you produced a band.
It's for people who take chunk of someone else's music and put it into a "new arrangement"..... like when rappers take an established song, put a beat on it, rearrange it a bit, and then rap to that "established song".
BUT.... they still have to get permission from the original artist or the publishing company to use any part of the established song... even if it's only a few seconds of that song. YOU NEED PERMISSION!
Secondly, you never said ANYTHING about getting thier permission in your first or second posts (as you claimed in your respose to me)... re-read your own words, dude.
It looked like you were trying to swipe someone else's stuff. You're getting solid advice here (for free)... and nobody here gains anything by telling you the wrong information.
If you want true legal advice, you definitely should contact a lawyer, or go to a law website or something.
Most of us here have a practical knowledge of the music business, but not a law degree.
We try to be as helpful as possible to all who need advice around here, but if you still doubt our credibility, check other sources.
There's also books about the music industry that will give you all the info you could possibly need. It would be a worthwhile investment.
 
Dude,
I HEAR you. And I did indicate I'd ask permission - look at the eighth post, right at the end, just above your second post, it says,

"Lastly I don't want to screw them over because I like them, they're cool guys and not some big jerk hollywood rock stars now, despite the fact that they've since won grammy nominations. I'll see if I can't get in touch with them and work it out."

What did you think I meant by this?

I just got the phone number and address of one of the guitarists, and he'll be able to put me in touch with the rest of them as well. I'm sending off something today, relax man.


[This message has been edited by mwande23 (edited 04-04-2000).]
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Rev E:
A few questions: Were you paid for your services at the time? What did the band regard you as... an engineer, a producer? Do you have any agreements (signed or verbal) with the bandmembers as to the nature of your relationship? Was it explicitly clear that you would ultimately function as a label (which would simply be defined as selling/transferring and/or distributing product)? <HR></BLOCKQUOTE>

There were no agreements, no labels like "producer" or "engineer". I was just a friend who had a bunch of recording equipment, and they wanted me to make a recording of them. It wasn't a business deal in the slightest, it was just some guys who got together to record some music. I don't know that they considered whether I'd ever be interested in selling it, so I'd have to assume that they weren't.

As I've stated several times, I am in fact getting in touch with these guys. They may care, they may not, I'll find out.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Buck62:
Secondly, you never said ANYTHING about getting thier permission in your first or second posts (as you claimed in your respose to me)... re-read your own words, dude.
<HR></BLOCKQUOTE>

I'd appreciate it if people would read more than just the first or second post, I had posted several more replies which you apparently ignored.

And nobody has yet clarified what it means to have "sound recording" authorship. The instructions for the SR form explicitly state that claiming authorship rights to the "sound recording" is quite distinct from claiming rights to "musical arrangement", "music", or "words", and that you must list all rights that you wish to claim. I had the impression that "sound recording" referred to the *actual sound recording* itself, as fixed on tape/phono/disc. Since I made and own the recording itself, I was assuming that meant I had the right to copyright it. I never claimed rights to the music, the arrangement, or the words. If I was wrong to claim any kind of copyright AT ALL, it will not make much difference in practice because I will gladly give the artists total control of the recording should they want it, and I won't distribute it without their permission. I only copyrighted it initially because I was more concerned about some OTHER, totally uninvolved party taking the music, and I know the artists themselves never bothered to copyright it. (I had been contemplating putting on the Web, where loads of stuff DOES get pirated.)

But if recording something gives you no rights to it (and I believe you that it doesn't), can someone please explain the meaning/purpose of "sound recording" authorship, as explictly opposed to "music", "musical arrangement" or "words"? I have the impression, from the discussion here, that the only thing that matters is having the rights to the words and music; so why bother to distinguish between these and the sound recording?
 
You all will be thrilled to know that I have in fact mailed off a request for permission to these guys.

And since I'm so deficient in the common sense area, perhaps you can answer some additional questions:

From whom, exactly, do I need to get permission? I wrote to the guitarist (probably the principle songwriter) and his brother (wrote the words and other guitar parts), but what about the other musicians? I have recordings which include two different drummers, a bassist, and yet another guitarist. I don't know exactly to what degree these musicians participated in the song-writing process, they probably had some minor input as far as arrangement, and they probably made up parts of it like the bass lines, beats, etc. I'm going to ask the two main musicians if they can give me a feel as to whether the other guys care, but I'd hate to have to track down every one of them.


And for something entirely different, but not off-topic: What about using short samples from other media sources in my music? Suppose I have short, non-musical snippets of speech from sources such as news broadcasts, commercials, movies and the like? Am I supposed to track down all the various corporations and people who made this stuff and get their permission, which would be impossible? What if the musical work I created out of these samples is a complete transformation of all these bits, so as to constitute a totally new composition? What part of this, if any, is covered under the Fair Use provisions?

Some common sense, anyone?


[This message has been edited by mwande23 (edited 04-04-2000).]
 
mwande23,

From whom, exactly, do I need to get permission?

In order to properly fill out form SR you will need permission (and signatures) from ALL of the songwriters. Basically, whether you like it or not, those guys will need to hash out who exactly were the songwriters. Just note that the authors/songwriters (legally) are the people who came up with the lyrical and melodic material for the song. Unless they actually contributed to the melody or lyrics, drummers, and other musicians, do not usually count as songwriters. Even if someone came up with a bassline for a song that was already in place (i.e. the melody and lyrics were already written), that person would NOT generally be considered a songwriter.

Adding musical material and direction to an already developed song falls under the definition of "arranger". Bottom line, those guys will have to figure it out amongst themselves who are the songwriters, because you will need their signatures on the form SR. You don't have to do this, but it would be wise to draw up a simple form that states the percentage breakdown amongst the songwriters (that all writers should acknowledge by signing) AND the form should state the percentage of the statutory mechanical royalty that you (the label) will pay. If you don't do this the law will assume that you will pay the full 7.55 cents per song to the writers.

As a side note, in the commercial world, the form SR is generally filled out by the record label (i.e. the company that sells and markets the record). In the case of you selling these old recordings, you would be functioning as the label. This (being the label) is the reason why you can claim the right to file the form SR. AFTER you sign an Artist agreement with the BAND, then are you legitimately able to file the form SR . (since you are not the author/writers, the form will require you to state how you are able to file for SR) You then write something like "by written contract".

Since, now you will be functioning as the "label" and the band will be the "artist". Once you have an agreement, you will then have to pay MECHANICAL royalties to the songwriters (which is currently 7.55 cents per song, unless reduced by contract) AND you will have to pay ARTIST royalties to the band members (commercially in the range of 10 - 18% of list price). These royalties are totally seperate from each other. Now you're set and not in danger of being sued or worse... losing good friends. The business must be taken care of!

Your proposition is made even more tricky by this fact. Your Grammy-nominated friends MAY not be able to sign an ARTIST agreement with you, because of their agreements with their current labels. In some cases, record deals do not cover songs and material produced prior to the deal, but it MAY. You've go to check or you could get these guys in trouble.

As you can see, when you're not the writer and don't have the legal ownership rights to intellectual property (e.g. songs, etc), you must go through the SAME legal/contractual red tape as a typical commercial label does in order to obtain and protect your legal right to sell the recordings of others.

Rev E

P.S. as to the sampling issue. It's just as long of a story as this one. Generally, you should get permission from all of the sources that you used... even news and other public sources. However, I would call them and ask them to use the clips for free, since the clips are real short. You may be surprised to find that they will often give permission for free. My office is a multi-million dollar intellectual property licensing operation, and we give permission to use copywritten stuff for FREE all the time. You don't have to go this route, but you'd be taking a chance. Either way, using the material without permission would be at your own risk.

Sorry for the long post. I hope that it's complete.

Rev E

[This message has been edited by Rev E (edited 04-05-2000).]
 
OK, thanks. I'm sure these guys will know whether or not their contracts cover this stuff, they've been around the block a few times. The more I think about it, they will most likely have to say no to any agreements, but hey there's always a chance.

Actually, I think they might have WON the grammy, probably for best "alternative" album or something. I don't really know to tell you the truth (or care all that much, I think grammies are BS anyway). Anyways, they've definitely "made it", but the last time I talked to em they were still really down to earth, no big egoes at all, nice bunch of guys. If it's up to them, they might well agree to something. Unfortunately, they could well decide that I need to get permission from everyone involved. On their old albums they always gave songwriting credits to the whole band.

Thanks again for your useful advice, I'll let you know what happens.

Re the sampling, I'm afraid it's going to be impossible to get permission for all the media samples I use. I literally have hundreds of them, it is simply not practical to sit down and write out a request for permission from CBS to use 5 seconds of Dan Rather or something. Are you SURE Fair Use doesn't come into play here? What if it is basically satire or commentary?

In any case, I basically have no choice except to quit distributing my stuff, and I'm NOT going to do that. I don't feel any ethical obligation to the media outlets for using this stuff, what I've done with it constitutes an entirely new work of art in itself, so the lawyers can go screw themselves on that one. If they want to waste their time and money and sue me, they can, but my corp doesn't have a dime so it'll be on their clock!
 
pardon me for butting in! I'm not a lawer or expert on this subject by anymeans and I'm relatively new at recording,although as a musician i have recorded in major studios.that said, my brother and i cowrote several songs for our band in the 60's one of which was picked and released by a then major label. we were associated with a local promoter/scam artist who had the right connections and,like so many 60's bands,had stars in our eyes. long story short, the record was released and recieved "destined for the top hundred with a bullet" in billboard magazine. our friend the promoter/scam artist used his connections locally to get air play on local radio. the record made the top ten locally as we happily played a number of local venues for free! bottom line, he collected the money and dropped us like a bad habit! we recieved no accounting of record sales locally or nationally.I'm trying to be as brief as possible here. the record business has always been cut throat and many established artists have consented to producers adding their names to the list of authors of hit records even if they had nothing to do with writing the song. this was usually by mutual consent of the writers in order to get a foot in the door which sometimes worked in their favor. years later, a local oldies enthusiast started a website featuring local bands from that era and we were featured. at first I thought, well, ok. a nice way to be remembered, until i found 3 different rare oldies web sites that were selling our record for 40 bucks a pop, one in switzerland of all places! so you see, it pays to pay a lawer! live and learn.
 
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