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....if
you’re a Musician, you need to read this.
MY
BAND JUST RECORDED A DEMO, WHO OWNS THE COPYRIGHT?
This
is a common question and it is not as simple to answer as
it may seem.
First,
you have to narrow the question and ask which Copyright?
When
a band records a demo, there are effectively three forms
of Copyright. The first Copyright is in the words or lyrics,
the second is in the music of the song. This is usually
the only Copyright which most people think of when they
talk to us about “Copyrighting a song”.
The Third Copyright is in the recorded version of the song.
This is known as the sound recording. So when you record
a demo, you have three forms of Copyright: one in the words,
one in the music and the other in the sound recording. If
you were to re-record a song, the Copyright in the words
and music would not change (same song, right?), but you
would have a new Copyright in the new sound recording.
Back to the question of who owns the Copyright to the new
demo.
Let's deal with the Copyright to the sound recording first.
All the people who contribute to the recording have a claim
to the Copyright to the sound recording. In reality, however,
the person who pays for the studio time usually, through
a contract, owns the Copyright in the sound recording. If
you have a record deal, the record company will pay for
the studio time to record the album and the record company
will own the Copyright to the sound recording. The songwriter
will still own the Copyright to the words and maybe also
the music, but the record company will own that sound recording.
If the band pays for the studio time, then anyone who contributes
to the sound recording would own the Copyright unless there
was a written contract to the contrary. In summary, if a
band records a demo, the musicians who play on the demo
jointly own the Copyright to the sound recording if they
are part of the band and not just hired session musicians.
Now to who owns the Copyright to the words and music. Whoever
contributes to the writing of the song has a claim to the
Copyright. The Copyright Act of 1988 considers everyone
who contributes to a song to be a joint author. It does
not matter how much or little you contribute; if you participated
in writing the song or recording the song, you are a joint
owner of the Copyright.
The Copyright Act also states that each co-author has an
indivisible share to the entire Copyright. This means that
each person owns the entire Copyright. The Copyright is
not divided into portions according to the contribution
of each author.
The
primary reason behind this is how can you decide who contributed
what? John did the first verse and part of the chorus and
Stan did the bridge and guitar solo and . . . you get the
point. It is impossible to divide a song up in this manner.
An analogy lawyers like to use is when you scramble an egg,
you can't separate it.
This form of joint ownership can have some interesting consequences.
For example, each co-author can do what they want with the
Copyright as long as he pays the other owners their pro-rata
share of the proceeds. One band member can license the song
to anyone so long as he splits any money he received with
the co- owners. Furthermore, one Copyright owner cannot
stop another from using the song in a particular way if
he disapproves. Each author can do as they please. The only
exception to this is the work for hire doctrine. A person
can write a song and never own the Copyright under the work
for hire doctrine. Therefore, in the absence of a work for
hire contract, all the persons who contribute to writing
the song own the entire song equally. But that’s another
story entirely and we won’t go there.
Ownership of the Copyright to a song can be very lucrative.
It is the songwriters who receive money from publishing.
Publishing money comes from licensing your song to others
for a fee. It is for this reason that bands should ideally
have a contract or preferably a strong partnership agreement
which specifies who owns and controls the band's songs.
The absence of an agreement will only lead to problems further
down the line so it’s better to get one done as soon
as possible.
Copyright in the songs needs to be protected and established.
The best method for this is to use the First Protection
System from Copyright Protection Agency. For full protection
you need to enclose the words (lyrics), the music in manuscript
form and a decent sound recording in a decent format such
as MIDI. This can be done very reasonably at www.remastering.com
They can also produce your music in a manuscript score form.
You should also consider the name of your band. Is your
band name registered with www.BandReg.com ? If not, why
not do it now?
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