From The April 2017 Issue Of DRUM! | By Kurt Dahl
I get emails every week from musicians around the world asking questions about the music business. One of the most common 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 rereleased 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 singer, the law is the same.
A good way to start is by 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).
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 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 others.
If you cowrote the composition, you’re entitled to a percentage of revenues generated from the songwriting copyright. Some drummers 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 cowriter, the other writers cannot exploit the recording containing the composition you’ve contributed to without your written consent (absent a publishing agreement that would have assigned these rights to a publisher).
Even if you aren’t considered a cowriter, 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, unless you sign a contract that forfeits your rights in your performance on the recording, your current/former bandmates cannot release the recording without your consent.
If you signed a record deal, then you’ve likely assigned these rights to the record company. Otherwise, a band agreement between your current/former members might address the issue. Absent either of these agreements, no bandmember can exploit the master recording without the consent of the other individuals who performed on it.
So what does this mean in the big picture? Without a band agreement or cowriter agreement that gives up your rights in the recording and/or composition, your current/former bandmembers can’t release the song in question without your consent. However, the sword cuts both ways — you can’t exploit the song without their consent, either. My advice is to sign a band agreement that deals with these issues and clarifies the rights of each member. If the band is no longer together, and no band agreement exists, you have the choice of dealing with the issue through discussion with your former bandmates, or through lawyers.
Kurt Dahl is a renowned entertainment lawyer and full-time touring musician with his band One Bad Son (onebadson.com). You can find legal and career advice based on his experience in the music industry over the last 15 years by visiting his website, lawyerdrummer.com.