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.
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.
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).
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.