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July 21, 2017


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Music Law: Copyright and the Recording Studio
The assistance of an experienced engineer or producer in the recording studio can be invaluable (MIghty 1 Music)

By: Jeff Brown

The assistance of an experienced engineer or producer in the recording studio can be invaluable in making sure you end up with professional sounding recording that showcases your band?s signature sound and style. However, copyright law may consider the assistance provided by the engineer or producer sufficient to make them a joint author of the songs (referred to as ?sound recordings?) and therefore co-owner of the copyright in the sound recordings. This means that the engineer or producer has a say in control of the sound recording, and is entitled a cut of any money you make from the sound recording.

In passing a law that made major revisions to the Copyright Act back in 1976, Congress specifically addressed the role of engineers and producers in assisting artists with the creation of sound recordings:

?[t]he copyrightable elements of a sound recording will usually, though not always, involve ?authorship? both on the part of the performers whose performance is captured and on the part of the record producer responsible for setting up the session, capturing and electronically processing the sounds, and compiling and editing them to make a final sound recording.?

HR Rep. No. 94-1476, 94th Cong. 2nd sess. 56 (1976)

In order to be considered a joint author of a sound recording, an engineer or producer must show that he or she and your band had ?the intention that their contributions [to the sound recording(s)] be merged into inseparable or interdependent parts of a unitary whole,? and that his or her contribution to the sound recording was something that he or she could have obtained a copyright for if it existed independent of the sound recording. Courts have further interpreted this wording to hold that an engineer or producer is joint author of a sound recording if his or her contribution to a sound recording constitutes an ?appreciable? amount of original authorship.

The role of the typical sound engineer, which is usually limited to the technical aspect of the recording process (setting up microphones, adjusting fader levels, adjusting frequency equalization, etc.) will generally not lead to an appreciable amount of original authorship such that he or she can be considered a co-author of a sound recording. However, a producer typically plays a much more integral role in the recording process than an engineer. Producers often, for instance, involve themselves with songwriting (suggesting alternative musical arrangements or lyrical changes), the selection of the material to be recorded, and directing the engineer during the mixing process. These types of actions fall squarely within the types of activities Congress mentioned when indicating that a producer?s contribution to a sound recording will often lead to him or her being considered a joint author in the sound recording.

Before you begin recording in at a studio or with a producer, you should make sure that the studio or the producer has signed an agreement that makes clear the studio, engineer, and/or producer waive or relinquish any right they have in the copyright of the sound recordings that will result from the recording process.

This column is nothing more than commentary, and does not constitute legal advice. If you have a question about a music law/biz issue, e-mail me jeff@entlawnw.com.

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