What Rights Do You Have in a Sound Recording You Play On?

kurt_dahlArticles, Lawyer News52 Comments

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I get many emails every week from musicians around the world asking me questions about the music business. One of the most common questions is: what rights do I have in a recording that I performed on? Whether it’s a song you played on decades ago that was just re-released by your former bandmates, or a song recorded last week that has yet to be released, the same principles apply. And whether you’re a drummer, guitar player, oboe soloist, or David Lee Roth, the law is the same.

Your Rights: Two Main Copyrights In A Recording

A starting point is understanding the two main copyrights in a recording: one in the written composition (the songwriting copyright) and one in the recording of that composition (the sound recording copyright).

The revenue streams generated from the songwriting copyright include performance royalties (from radio play, public performance of the song, etc.), mechanical license royalties (a fee paid per-song for every copy of the song that is made), synchronization fees (if the composition is used in film or television), and more.

The revenue streams generated from the sound recording copyright include record sales (both digital and physical), streaming royalties, master use license fees (to use the actual recording of the song in film and television), and more.

Co-writer Rights

If you are a co-writer of the composition that was recorded, you are entitled to a percentage of revenues generated from the songwriting copyright. Some drummers are considered songwriters, some aren’t. Some guitar players are considered songwriters, some aren’t. It really depends on the agreement you have with your bandmates, and the extent of your contribution to the song in question. If you are indeed a co-writer, the other writers cannot exploit the recording containing the composition without your written consent.

For example, if David Lee Roth co-wrote Hot For Teacher, he could stop the other members of Van Halen from using that composition once he left the band. However, this principle does not apply if a publishing agreement was signed, as these rights would be assigned to a publisher (which they were in this instance). But if your indie band has not signed a pub deal, the principle applies: one writer can stop the other writers from using a co-written song, unless something is put down in writing between them.

Rights - DLR

If you are not considered a co-writer of the composition, you still have certain rights in your performance on the recording. Absent an agreement to the contrary, you own your performance on the master recording, and it cannot be exploited without your consent. In other words, even if David Lee Roth didn’t co-write Hot For Teacher, he could still stop his ex-bandmates from exploiting the recording of that song. However, this principle does not apply if a record deal was signed that gives these rights to a record label (again, one was in this instance).

But for indie bands without a record label, the principle applies: without something in writing between the members (a Band Agreement), any single member can stop the others from exploiting recordings that contain their performances.

This comes as a surprise to many of my clients, and is why the Band Agreement is so important. If you record your masterpiece and three months later your bass player quits, he or she could stop you from releasing your masterpiece. As we all know from reading rock and roll bios, bands don’t always stay happy and together (just ask Hagar…or anyone else that sang for Van Halen).

Rights - Hagar

The Modern Musician’s Rights

So what does this mean for you, the modern musician? Well, without a Band Agreement that outlines the various rights and responsibilities of each member vis-a-vis the compositions and sound recordings, any one member can stop the others from exploiting the songs.

My advice: sign a Band Agreement that deals with these issues and clarifies the rights of each member. If no Band Agreement exists and you’re having a dispute with a current or former member, you have the choice of discussing it with them or discussing it through lawyers. One option costs a lot more.

rights - Halen

52 Comments on “What Rights Do You Have in a Sound Recording You Play On?”

  1. What if you pay a producer who hires sessions musicians out of the budget to lay down a bass line or horn partc, etc but they are not actually in the group as it’s a slo act. Can they come back after the fact and block the solo artist from using the record?

    1. Hi Randy,

      They might have that right, without an agreement that states otherwise. I always recommend that a Session Player Agreement is signed, wherein these musicians waive their rights to both the masters and the compositions. Otherwise, the guitar player for example could claim that his riff constitutes songwriting. Or at the very least, he could claim that you do not have the right to exploit his performances.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  2. HI. I have a partnership agreement with my producer that states that we are 50/50 partners on our complete works. He produced all 30 tracks and I wrote the lyrics to all of them. He now wants to dissolve the partnership agreement and take his beats back and license them to me, but I still want to be able to use the music to market my skills toajor labels, and keep my 50/50 of the songs. Should I just say no to that?

  3. Hey Kurt. Just quit a recording session as a drummer. Bad witch voodoo hex on my tracks and too many things I’m pissed off about. Having my stuff withheld from me for 9 months and then being shared before I even got to listen to it once. What I’m I entitled to for leaving? There was no band agreement. They should give me a copy of all my drum tracks + all the work that’s been laid down overtop of it, right? I haven’t heard a goddamn thing yet everyone else heard my stuff before I even did. Thanks

  4. If I was with a band who dropped me some music and asked me to put lyrics to it and I did, but later the band fell apart. Then I reproduced the songs I took part in writing with my own musicians and recording equipment, can I publish these songs without fear that I will be sued for utilizing the musical content from the previous band?

    1. Dayna

      All writers would have to approve of the use of the songs, regardless of their contribution. Without something in writing between all the writers, they could definitely stop you from using the songs in any manner.

      Email to chat more

      Kurt Dahl
      Entertainment Lawyer

      1. Hey Dayna & Kurt

        Would Dayna be able to take her lyrics and presumably top-line vocal melody and just sing it to a completely different instrumental arrangement/melody?

        And would Dayna be able to block the person who dropped her the music originally from using that music they sent without permission for a completely different vocal/lyrical arrangement?

        Thanks!

        1. Hi Lee

          Without something in writing that clarifies that Dayna wrote the lyrics and not the original music (and vice versa with her former bandmates), you cannot divide up the parts of a song once it’s a whole composition. If Dayna had some sort of evidence that she wrote the lyrics separate from the original music, then maybe she could. It’s a grey area in the law, so you need an entertainment lawyer to assist you on this for sure.

          Thanks

          Kurt Dahl
          Entertainment Lawyer

  5. Hi Kurt,

    If I perform as an instrumental soloist on a video recording that will end up on YouTube and be published on a popular reading app, am I entitled to royalties? I did not compose the solos.

    Thanks!

    1. Hi Sara

      You should be entitled to performance royalties through a neighbouring rights collective, unless you otherwise sign away those rights.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  6. Hey there. My buddy was in a band that sold 18 million records. There are documentaries of him in the studio, helping to shape the songs and essentially add to the writing process. However, he never received a penny of the publishing or songwriting royalties. Is there any way to retroactively do something about this?
    Thanks!

    1. Hi D,

      His entitlement to publishing royalties really depends if he was a songwriter of the compositions. Even if he wasn’t a writer, he would still in theory be entitled to revenues from his performances on the master recordings. He should hire a good entertainment lawyer.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  7. I recently left a band because I did not wish to be in a band thats run under a dictatorship by the drummer. We had no written agreements in place. The other members decided they would rather follow me than continue working with him. We could not kick him out because he wouldnt leave because its “his band” I was the person who wrote all of the songs in my home by myself including lyrics for 2 songs and brought to said drummer to add drums to. Now that i have left the band I want to take my music with me and the other guys under a new name but said drummer is now claiming he co wrote everything and has apparent recordings proving it and is talking to an attorney who im guessing is going to.contacting me saying I have no right to play my own music. Is this right?
    Thanks..

    1. Without something in writing, each and every member is presumed to have an equal ownership of all assets. This includes the band name, the masters, etc. For the compositions, it really is a question of fact as to who wrote them. Without something in writing in that regard, no single writer can use the compositions without the consent of the writers. So it sounds like you need to speak with an attorney as well. If you are in Canada, I can help

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  8. Hey,
    Say I have applied for a PA copyright and not a SR copyright but my work has not been published yet so I applied as unpublished work. Then after the copyright is accepted I decide to publish my work as a sound recording will this affect my copyright? Also what are the contingencies with people using my recording and/ or sending it out to be used since I have a copyright on the song but not the recording?

    1. You would have inherent rights in the recording just by the fact that it was recorded and “fixed”. You can always email me the recording and then we have a date/time record of it. Thanks

      Kurt Dahl
      Entertainment Lawyer

  9. Hi – a slight curve ball to this.
    Band A has been playing new songs off their proposed album for a while live, but haven’t recorded yet. Musician leaves and says they can’t use the guitar parts they’ve adapted over time for the actual album recording (they aren’t and haven’t been credited as a songwriter). No band agreements in place, but plenty of youtube footage of the new songs at gigs. Is it the same or different? Can a new guitar player come in and record the same parts on the actual recording? No party can prove otherwise…or can they? thanks

    1. The old guitar player would own his performances if they were recorded, but the new guitar player could record new performances on the masters. However, the old player would own his contributions to the songwriting, if he is considered a songwriter. So there’s a distinction here between the performances (which you can re-record) and the actual songwriting (which the new player cannot claim to have written).

      In other words: If Mick kicked Keith Richards out of the band, Keith wouldn’t all of a sudden lose his songwriting on the songs already written. But a new guitar player could come in and record new guitar parts on new versions of old Stones songs, for example.

      Kurt Dahl
      Entertainment Lawyer

  10. Hi,
    could you tell me how long a record label holds the rights in a recording please?
    I should that the label in question is UK based and the contract was signed in 1970……….although I no longer have a copy.
    Thanks.

  11. I have paid a studio 20 thousand in full. Now he wont give me ny masters. He wants a producer contract when the studio advertised all inclusive. I wrote the music for all songs. Now he will not give me my masters. Says i oew him 1000 dollars. Liar! And wants points after the fact. How do i get a judge to oder him to return my files? Is this fraud?

  12. Hi Kurt,

    Very informative. I’m in a situation now where I’ve written and recorded a guitar part and a producer is going to use it on his track as a sample (I’m assuming, he hasn’t showed me the final track). How do you suggest I move forward with the business end of things?

    Thanks,
    Sean

  13. Hey Kurt, Simple question (I hope!). I am the composer and copyright holder of a Christmas song. I got an album cut and and have received royalties (BMI). The publishing rights are owned by a publishing company. Can I record my song for digital release w/o paying the publisher for mechanical license?

  14. Kurt- I am releasing my own arrangement of a famous song. I am getting PDD licensing through the Harry Fox site. As producer of this “version” what do I won? Mechanical rights? And what are those exactly? If someone wants to use MY recording in film/video then I get paid, but not for airplay on SAirius XM? I’m not quite certain how that all works. If a movie wants to use my recording does the writer/publisher have to give their OK, or do they just get their share, and what % would that be?

  15. I was in a band some time ago, but we disbanded during the recording process of our first album.
    Though none of the tracks were finished, we all received a letter stating that no member of the band could rightfully reproduce or sell those songs now that the band had parted ways. Made perfect sense to me.
    Now, almost a year later, I have been, without my knowledge or permission, “featured” to promote the sale of a rough recording of one of the aforementioned songs.
    This person has not only been promoting this song all over social media but has now begun to send the song link directly to my friends and family to promote his own sales of the song, again, without my permission, and making money off of them because they don’t know it’s not to support me in anyway.

    Is there anything I can do?

    1. Hi Leila,

      I suggest you hire an entertainment lawyer and enforce your rights under the letter you mention, not to mention your rights contained on the record.

      Kurt Dahl
      Entertainment Lawyer

  16. Hi,
    My name’s xavier and I recently started working with a startup label (we’ll call SHADY RECORDS) in the SF Bay Area. The idea being that they send backing tracks, essentially, I write all the lyrics/vocals and perform them myself, they pay for the recording and we split the revenue based on a percentage. Nothing was signed as this was meant to be a completely non exclusive agreement with the option to sign into exclusivity at a later time.

    After a series of extremely unprofessional antics and attempts to intimidate me from 1, of the 2, owners and their romantic partner, I’ve decided to leave the situation.

    I recorded our phone conversations in which we discussed our exit plan. We discussed that the music, which they had the rights to record, master, and start publishing on their social media accounts, would obviously no longer be sold, as I didn’t want the owner making money off of my work BUT that I could use them for my own demo material to demonstrate my abilities with the understanding that and that I would not monetize anything featuring the tracks.
    They, the owners, go on to say, that if a need any help in the future that they offer their assistance and will “support [me] in any way [they] can.”

    Fast forward and now I’ve gotten a message, after we’d concluded the exit agreement talk, trying to limit how I can use the demos (i.e. no demos allowed on the internet, regardless of wether it’s clearly labeled a demo and not being monetized on, and not linking or referencing SHADY REDORDS)

    They are now claiming that neither party can post the tracks because the project is not moving forward. They’ve said they give the rights back to the producer of the backing track even though they claim to have been given the rights to record, master, and publish the recording featuring the backing tracks.
    It would appear to me that this rescinding of rights to the master recordings (which I didn’t know was even possible) happened after the recorded exit agreement, in which they gave me permission to use the track for demos and non monetarily. This is because during, and after, the recorded call had ended, my image/music featuring the backing tracks had been published and used as promo on SHADY RECORDS various Instagram accounts and the mixing/mastering process on one of the two tracks is still currently being finished.

    To top it all off, somehow the label though they claim to have no rights, has the option to use the backing tracks for a different artist if they so choose in the future, to be recorded and published, etc…

    I’m a little confused as I thought I’ve earned the rights to the master as I had permission to record over the backing track and wrote and perfomed everything else featured on the recording myself with no help from SHADY RECORDS or the third party.

    What are my options?/Can they go back on they’re recorded exit agreement?

    Thank you so much for your time

    1. Hi Xavier,

      Sounds like you need to hire an entertainment lawyer in Cali. Technically, neither party can do anything with the songs because you’re co-writers. Or – you can’t do anything without the other’s consent. Your phone conversation will only help you if it goes to court, and that costs tens of thousands of dollars. So a) hire a lawyer or b) try to reach an agreement with them on your own.

      Kurt Dahl
      Entertainment Lawyer

  17. I am a recording artist ona Indie label. Recently o e of our aong writers(who is no longer on label) took my recorded songs that I recorded that I co wrote on and 2 she wrote (that was NOT PUBLISHED or copywrite and put her cover photo of herself and all her info on credits and left me off and was selling my new releases as her own.. Then when I demanded she remove may vocals she went back to studio and got copies of master mp3 back tracks that was made from my acupella vocal melody to create song and re released them.. Also the kne song that I wrote I had registered with bmi waiting copy write also register melody acupella vocals ect. The studio guy allowed her use if my master track. Helped her rename the song and remove half the lyrics changing its wording but sang by original melody. That I have registered and published. What can I do to stop them. Also I have text after text that she told mw whe was dieing of a t we seminal illness all was a lie

  18. Hi there Kurt.
    As a Writer/Composer myself that has owned Studios professionally in Scandinavia and consequently worked major Studios in the UK, I’ve naturally
    been privileged to have everything at my disposal to Produce every Song I’ve written from click track to Master.
    This includes asking Session players (as friend & colleague) to help out as paid work.
    Part of this has been also being able to ask some formidable Vocalist talent to
    “do” the song for me, both as paid work and to help me finish the Song, not to
    launch their career (one was working for Kylie Minogue, Beverley Knight, Sting)
    others have gone on to make Pro. Careers signed and others more recently I would like to give them more publicity such is the talent).
    This is recorded work as far back as 98-2003 and more recent projects.
    I’m at the point now of wanting to compile all my Catalogue of these projects as a Songwriter with a Distribution Co. on all the usual media platforms, but am suddenly filled with trepidation in respect of if I can simply submit them under my name as Songwriter/Composer etc or if I have to be more aware of the fact that the Session players/Singers will be a problem for me?
    They knew it was personal work that ultimately I was wanting to submit for Publishing at some point as a Songwriter.
    Is this a case of “no signed disclaimer, beware??)
    Kind regards.
    Mike.

    1. Hi Mike,

      Ideally they would have all signed Session Player Agreements that would govern. It sounds like that’s not the case. However, they may have registered their performances with the appropriate neighboring rights entity. Or you can, if you have the relevant info.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  19. If i created a group (just the two of us) and i paid for everything, studio, production, masters, videos, etc. and the other member of the group only wrote a few lyrics to add in to a verse or do background vocals, and we split up and went separate ways, but i own the masters, can he release the music or distribute it ? We do not have a band agreement. Ive also sent a cease & desist letter and it is not being taken into account. Am i allowed to release the songs since i own the masters? Or do I need written consent from him?

    1. Without something in writing, neither you nor him can release/exploit the music without the other’s consent, as you’re both considered equal owners.

      Kurt Dahl
      Entertainment Lawyer

  20. Hey Kurt,

    I am a singer/songwriter and I want to go do an amateur recording with a guy I know at his house studio, just to hear myself and explore possibilities.

    He is a dj and not sure if he is a capable producer, or that I would like to work with him in the future, if there is a future.

    None the less, how should I protect myself for any future disputes that may arise and if we do decide to work together, what kind of agreement would you suggest?

    Thank you in advance for your time, effort and advice.

    Regards,
    Jure

    1. Definitely a Producer Agreement once you agree that you’re going to work together. Make sure you own the masters, and that songwriting is dealt with (i.e. is he going to be a co-writer or not). Thanks

      Kurt Dahl
      Entertainment Lawyer

  21. Hi Kurt,

    I performed on an album as a drummer, all tracks and as a member of a band. That record went on to sell quite well but I was A. Never paid a dime, B. Never signed a release.

    One of the former members of that band approached the band leader about the subject of royalties and was told to take a flying leap. The issue was never broached again. My question is— can I register the material with a platform like Sound Exchange to recover some of those owed royalties?

    Realistically, the three of us who were never paid or signed releases, have a legitimate claim as co-songwriters and I have hours and hours of rehearsal recordings that prove it. But the focus of my question is about claiming status as a “Featured Artist” and recovering those royalties owing to performance, rather than publishing or writing.

    Thank you!

  22. What if your band mates kick you out mid tour without consulting the label first hand.and they never give you a release of separation

    1. Depends if they have that right in a Band Agreement. If no agreement, you would still have rights in your performances on the recordings, unless you gave them up in a record deal.

      Kurt Dahl
      Entertainment Lawyer

  23. How are you.. So its a movie out called Blue Hill Avenue. When I was alittle younger me and my cousin did a soundtrack to the movie and before we knew it was getting used for that movie. How do we go about getting a law suit because our parents weren’t asked nor were we asked if it could get used?!

  24. Hi there Kurt,

    I’m an independent singer-songwriter from the Midwest and a senior at a music college. I’m about to go into a studio in a few weeks and record 8 of my original songs with some friends. One of them the other day mentioned filling out split sheets for the sessions, but I’ve only ever heard of split sheets being completed for the actual songwriting. I’ve written all of the songs on my own and have registered the copyright here in the US as they’ve been completed over the last 3 years. They habe also been registered with BMI since I joined last year.

    I am a solo artist and want to release this music as a solo record when the process is done. That has been the plan all along and the musicians are well-aware of that. I am financing the entire project myself (no outside monetary resources). I have no issue with them using the recordings in a portfolio or something similar, but don’t want it given away or have something held over my head 20 years down the line. What kind of documentation do I need to be protected here so that I don’t run into problems down the line? What are the rights they have as sessions musicians versus “actual band mates”?

    1. Hi LeAnn,

      I always suggest that a Session Player Agreement be drafted and signed in these situations. You want it made clear that they will not take any ownership in the Masters nor will they acquire any songwriting from their contributions in the studio.

      Email me and I can help.

      Kurt Dahl
      Entertainment Lawyer

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