I want to pick up the previous discussion about a cornerstone topic for recording a music project, the "song". It seems to me that musicians and new producers still have a hard time with the concept of differentiating the "song" itself from the "recording of the song", and the separate proprietary rights that are involved. It is of critical importance to recognize the difference between the song as the "underlying composition", and the recording of the song, the fixation of sounds, which is otherwise referred to as the "sound recording". In fact they are so different, there is a copyright in each. As many of you know, you file a PA form to register the copyright in the composition, and you file an SR form to file copyright in the sound recording.
Let's look at what happened in a not-so-hypothetical situation. A talented music producer, let's call him, Clive, decided to create a group and album project to license or sell to a label with a major distributor. The project features some authentic talents playing in a contemporary genre in which each had previously performed and written in successful recording groups. Some of the players were unfairly considered too "seasoned", which means they were over thirty-five. The producer was wise enough to front the act with some excellent young vocalists, to give a young spin to the act. Without saying more, this group has some of the best grooves and beats that you've heard in a long time. The producer had invested tens of thousands of dollars in the project prior to coming to seeking legal and business advice. Now he wanted to bring this deal home to a major label to recoup his investment, and make a profit. He told me he was ready to go.
Certainly I did not want to procrastinate and slow up his momentum. But it was definitely important to ask a few questions. Most foremost were questions such as, "Who owns the project itself, the sound recordings, the name of the act, the merchandising rights? Who owns the songs? Who gets signed to what deal? A production deal, master license or exclusive artist deal? You see, even if the record company gets blown away in their chair like when they hear this stuff (and they might)...they will want to know the answers to these and other questions. The last thing you want to do is get a major label interested, and then you tell them to wait because you can't deliver the product because you forgot to get the right for the "first release" of a song you paid thousands to record. In fact now you are not sure you can even find the copyright holder. After all the money you spent to record your ex-member's songs, it is not unreasonable to suggest that you should have already obtained sufficient control in the titles to have the appropriate mechanical licenses, if not co-ownership of the songs.
Our producer thought he owned the group, all necessary rights or licenses, and the tracks with the recorded performances of the songs. Considering he paid for the recordings, and paid all the musicians, in theory and probably in practice, he did own the tracks, with the performers status as "artists for hire". However, at least two of the tracks were written entirely by a former musical pal, now an ex-member, now estranged from the musical act. The producer thought that since he owned the recordings, for which he paid out thousands, it followed he had rights to use the original unreleased songs he recorded too. That was not the case. The producer did not possess the full scope of rights he needed in the songs without mechanical licenses to use the two songs for first release. That ex-musician happened to have written 100% of the words and music for two of the strongest tracks in the album project.
Let's put it this way. Bring too much complication with the music and record companies lose interest fast. And look what it took to get their interest. Without all mechanical licenses, this producer would be in a more difficult position to satisfy the record company. He could tell the label to pass up on the two tracks for now, but unfortunately, these were two of the strongest tracks, perhaps the magnets for the album project. If the record company wants the recording, and those two hot tracks, they will look to you to deliver the rights to the song. Hopefully, the writer and owner of the songs, if you can find him, will be willing to license the rights to the songs to you or the label you hope to sign with, but at this stage, as they say, anything can happen, and that writer may have the power to make or break your deal by holding out unreasonably. If the record company loves you and the project, they may bail you out to get the rights you should have had in the first place. Not the best way to start a deal with a label.
This scenario has come up in many variations. In each case, the root of the problem was that the producer did not understand that the song (the composition) and the sound recording of the song are two different property rights, and they made financial investments in making sound recordings without negotiating for an interest in publishing or establishing the licensing rights they will need to exploit their masters. Unless you can deliver both rights to the record company's favorite cuts you are not selling the company what it expects to buy.
So the moral of the story is this - Even if you own the sound recording, you might not necessarily be able to release the track. When you hear people talk about compulsory licenses and the Harry Fox Agency, they are not referring to "first release". That right still remains in the copyright owner. Visit an attorney first to make sure you get the express rights you need at the outset, before you spend all your or your investor's money. You both deserve to be protected.
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and comments for future articles to:
Robert Rosenblatt
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New York 10019
Telephone (212) 262-2112
or email to legal@soloperformer.com.
© Copyright 1997 Robert Rosenblatt
