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

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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 Copy Rights 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 Musicians 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.

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24 thoughts 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?

    • 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?

    • 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

      • 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!

        • 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!

    • 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!

    • 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..

    • 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?

    • 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

    • 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.

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