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Sound Advice Your inside source to the world of entertainment law with Peter Vaughn Shaver, Esq. |
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I brought a friend to a studio session to playing drums on some of my recordings. He also contributed some musical ideas that were incorporated into the final versions of my songs. Some of his parts were improvised on the spot, but I wrote the basic songs and played all the other instruments. I also paid for all of the studio time and personally own the recordings. We did not have a written contract, only a handshake deal that he would not claim any interest in the recordings or any royalties from the recording. Does the drummer have any claims to the copyright of the material or to credits? Also, if I write a check to him, does his cashing the check act as a legally binding contract, transferring his copyrights to me? Ok, because the drummer played on the recordings, he is essentially the “author,” or creator, of his recorded drum parts and the material he added to your songs. Despite your “handshake” agreement and verbal statements that he would not claim any interests in ownership or royalties, he still owns the material he contributed. While verbal agreements can be binding, according to copyright law, without a written agreement transferring his rights to you, the drummer may retain partial copyright ownership interests in BOTH your recordings and the compositions. In a worst case scenario, a person claiming partial ownership of your recordings can hold up release of your music and/or hold you, or your record company, hostage for payment of sales or mechanical royalties after the recordings are released. Generally, in a studio situation, anybody that contributes to your recordings, including musicians, producers or random bystanders, may have rights in their contributions. In order to retain the exclusive rights to their recorded performances, you should have ALL contributors sign agreements that basically state what your drummer agreed to verbally—that they transfer or release their rights to you, including any rights to their recorded performances and additions to your compositions. For musicians, these are generally known as “sideman agreements” (or, for you politically correct readers, “side-person” agreements). The best type of sideman agreement is a type of contract called a “work for hire” agreement. Work for hire agreements confirm that the musician is merely a hired gun, who will perform on your recordings for pay and then ride off into the sunset without any claims to the final product. Basically, the player is an “employee” who gives up all their rights and you, the employer, will own all their output. Generally, any work done by a full-time employee in the normal course of their job duties is considered owned by the employer. Similarly, if you have a producer or engineer that adds any sort of content to your recordings, they too should sign waivers or transfers of their rights to any added material or performances. This could take the form of a “waiver of rights” section in your contracts with these parties. Work for hire agreements must be in writing, describing the various services to be provided and should specifically state that the employment relationship is on a “work for hire” basis. The agreement must be signed before the job starts and should also include language that transfers all copyrights to the employer, including sound recording and publishing rights, related to the job. Work for hire agreements should also acknowledge that, in exchange for the transfer of rights, the player received something of value as consideration, or compensation, for their work. You can also include references to which tracks the musician will play on to avoid confusion later on. By agreeing to these terms, the player will not retain all rights in their contributions to your projects. This also means that you do not have to credit them, unless the credit is part of the compensation you are offering them in exchange for their work. In this case, you should try to get the drummer to sign and date a simple agreement, stating in writing what he has previously agreed to verbally. While this agreement cannot be a work for hire agreement, you should have your friend transfer his rights in the compositions or sound recordings to you, in exchange for something of value that is mentioned in the agreement. Perhaps a 12-pack of PBR would do the trick. Note that all exclusive copyright transfers must be in writing. While your cashed check might be evidence of some sort of contractual relationship, it doesn’t say anything about who owns what—this information should be in a written agreement. Merely cashing a check, without an agreement related to the employment, does not get you in the clear as far as the drummer’s potential claims. Even giving someone a payment check with language on the back stating that if the check is cashed, the recipient will transfer their interest in their contributions, is not legally binding and won’t, by itself, create a valid contract. The Bottom Line: ALWAYS make sure that you have written agreements in place for anybody that provides performances, or other contributions, to your recordings. “Sideperson” agreements, such as work for hire contracts are a good way to protect your copyright interests and avoid any hassles about who “owns” your music. SEND YOUR QUESTIONS TO: pvshaver@aol.com Disclaimer: The advice and opinions offered in this column are meant to be educational only and should not be relied upon as personal legal advice. The reader is cautioned to seek advice from qualified counsel regarding the specific facts of any legal matter. Neither the writer nor Music Liberation Project accepts any responsibility for the reader's reliance on, or use of, the contents of this article. |