Firing band member/co-writer, Copyright issues?

  • Thread starter Thread starter darwin
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1. talk to him

2. if you're ditching him, you presumedly plan on replaing him with someone who can contribute at least as much (if not more) than he does-meaning that the new drummer should be able to help you rite new songs, or rewrite the old. if you have even a shred of material that he was involved in writing, and you try to publish without his being happy, you're opening the door to a world of drama. seeing as how you're in a band, i suspect you know more than enough about drama than to want more of it. if you want/need to can him (because partially of drama created, i would presume), make sure everyone is very clear on the legal situation agreed upon-get something in writing if possible. a good album is not worth flushing your band's potential don the toilet for a few bucks in the near future.
 
First thing is I am a lawyer and the work for hire issue is viable. YOu are correct that a work for hire generally needs a written agreement unless the song falls into the specific list of "specially ordered or commissioned works". That list includes, inter alia, a contribution to a collective work. It was in this context that I understood the drummers made his contribution to the group's music.

In my opinion this is also a logical and sensible position under the circumstances since the refusal of someone who has merely (and I don't mean merely in a musically qualitative way, just legally) contributed some part to cooperate could hamstring an entire production. I am sure there are other situations that many of you could relate but for the most part, I reiterate that I believe this is truly a viable option.

As for the comment on how oftne courts will hold that a contract is "unconscionable" I would say more often than you might think. It is not that rare though, to be frank, it is a difficult position to take. I was not, however, suggesting that that was the ultimate issue. The ultimate issue is more likely whether or not there was truly a work for hire situation. Based upon the comments here I did further research on the issue and discovered the above.

I am doing some additional research and will post my findings. I am sure this is an issue of interest to many here and I want to give as much information as possible and be as accurate as possible.

By the way, the comment about suing and not suing becuase of the lack of sales and lack of money is, ironically, both correct and incorrect. It is usually at this point, when people take a rather passive attitude towards the work because of the lack of commercial success to date, where the problems are generated.

If you have commercial aspirations, you probably are well advised to seek counsel and pay the money. Your biggest problem is getting reasonably reliabel advice for a reasonable price.

In any event, I will post more on the work for hire issue when I have completed my research. Until then I believe it is an accurate representation of the situation and something that should be considered.
 
Hey Counselor -

What's the going rate for reviewing a publishing (single song) contract?

Bob
 
Work for Hire

Here is a fairly standard clause from a recording contract that uses the work for hire "fiction" as it were...

Each and very vocalist, musician, Producer and other individual whose services you furnish in connection with the preparation of a Master REcording or Covered Video under this Agreement either will have done so as an employee within the scope of his or her employment or will have expressly agreed in written instrument signed by him or her and by the party commisioning the services that the Recording or Covered Video, as applicable, will be considered a work made for hire. A copy of any and all such instruments will be furnished to Label upon the request of Label.

In effect this clause deems the work of others on a production work for hire whether or not ther is a written agreement. Certianly, the point is clear that this is, for the most part, for the musicians etc. that come in to do the session and have little else to do with the production.

Nevertheless, what if one of the "studio musicians" suggested a different phrase in the song which you really liked and used, or maybe some words were changed by a vocalist, should this, just becaus it is a "contribution" to the "composition" automatically void the work for hire aspect? I for one do not think so.
 
is there one person that wrote the song and then brought the song to band practice? or did you write the song wiht the other members? he can't claim that he wrote the song if you brought the song into practice and he jsut played along with it. all he did is write his part. like the lawer said.......you might get him to believe that he was a "drummer for hire,"

BUT

basically......he played on the album which means he's entitled to royalties........ you wouldn't have to give him much because the person that wrote the song usually get's the largest amount of the money.

also if u need to get rid of him, why would u want to keep his parts? this is just my opinion, but you should only get rid of your drummer if he sux........if he's in the band that means you probably like him........SO i've come to the conclusion that he sux......so i think u should re-record anything that you've already recorded..

i guess this is the end of my post
 
On the copyright subject: there's the song, and then there's the recording of the song. If he played on the recording, he likely has copyright (along with everyone else) in the recording. If he didn't write it, you maybe could re-record it with someone else. The arrangement is a bit of a question though. Also -- although I seem to be the only one who thinks so -- entirely aside from copyright, there are some contract / partnership issues.
 
Donkey & Sj are referring to mechanical royalties, however SJ grings up another good point in the partnership issue. That opens up other contract issues that could effect the disposition of the whole thing. If the drummer is a partner, then you could say that his work of contribution was to the partnership. In other words working for the partnership and the partnership owns the rights, for instance, to the recording.

But, besides that, as for the mechanical rights in the recording, they belong to the person or persons that actually paid for the session. Those rights are contained in the actual recording. It is the rendering on tape that they own and can use. Otherwise, as you know, music is played and gone. In the wind so to speak. So, the only tangible thing is the recording and that, is woned by the person or perons that paid for it. If drummer did not contribute funds to the session, then he has no legal interest in the tape. That is certainly a work for hire situation. You may need to pay him for the session to solidify the deal but, frankly, that is as far as I would go or as far as I would advise anyone else to go in such a situation.

If you think that the work for hire is a legal fiction used to strip others of their fair share, I would be curious to see how you feel after you have invested all of the time and effort to promote the music, sell the music, keep the band together, do the live shows, bring the equipment for repair, lend the bass player ten bucks, lift the amplifiers, load a trunk up with CDs, go to a gazillion meetings with asshole execs and wanna-be execs, lawyers, doctorsk, accountants, indian cheifs. After all of that, and while the drummer sits at home after contributing barely usable tracks, would you still be so worried about just paying him a fiar wage for his time and effort.

The point is, there is nothing wrong with paying a person a fair wage for thier work even if that happens to include some measure of ceativity.

And, one more thing, the degree of his contribution in the material should dictate his fair share. If he added a drum beat of "feel" upon which someone else added the entire melody, lyrics and harmony, I believe the answer there is clear. On the other hand, if he completely wrote the chorus, words, melody, harmony...then, he has a copyright interest in the song.

And, by the way, even if he does have a copyright interest in the song, that does not necessarily mean he has a copyright interest in the mechanical recording. those are separate and distinct.

By the way, sorry for rambling, its early here...
 
Copyright in the recording:
Paying for the tape may mean you own the tape (you know, the polyester and oxide and stuff), but it doesn't mean you own the copyright to anything. For one thing: did they pay the drummer? Even if they did pay the drummer (and the engineer, and the producer, etc.) it doesn't necessarily mean that any of them were employees. If the drummer's not an employee and there's no written agreement, it's not a work for hire, so far as I can tell.

Copyright in the song:
So far as I can tell, that is the right terminology: you need a "mechanical" license from whoever wrote the song (which may, or may not, include the drummer: the original poster doesn't say). Note that if it's an original song (i.e. a recording of it hasn't previously been released, either by someone else or this band), this is a fully negotiated license, not a compulsory license. So far as I can tell, anyway.
 
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