Sound Recording Copyrights
You’ve written a great song, and, because you read my articles on “Songwriting Copyright Basics” and “What Happens When You Co-Write a Song,” you understand the fundamentals of the songwriting copyrights (you did read those articles, right?). So, now what happens when you record the song? You get another copyright! Congratulations.
Although the sound recording contains the musical composition (your song), which has its own copyright, the sound recording of the musical composition is a separate artistic creation, with its own separate copyright. Similar to the copyright in the musical composition, the copyright in the sound recording is created automatically when the recording is made (a sound recording is by necessity a “tangible” expression, so, unlike a song in your head that has to be written down or recorded to be tangible, and therefore protected by copyright, the copyright in the sound recording exists the minute you press the record button).
On a side note, I like to be precise in the words used to distinguish a musical composition from a sound recording. In past articles, I have used the word “song” because it is a word familiar to most people. But “song” can be confusing, because it can mean the musical composition, or the sound recording, or both. When you are talking about things that have specific legal meanings, confusion is a really bad thing. For that reason, the musical composition, meaning the lyrics and melody that are a “song” should be referred to as the “composition,” and the recording of the composition should be referred to as the “sound recording” or the “master.” “Master” is generically used in the music biz to refer to the sound recording. However, this term can also be a bit confusing, because technically a “master” is a final two-track mix of the sound recording which is reproduced for distribution. There is also the process of “mastering” a two-track mix to equalize and balance the sound for optimal sound quality across all the possible devices on which people might listen. Sound recording copyrights exists in all versions of the recording, throughout the recording process, from raw tracks, to rough mixes, to the final master. But when you hear the term “master” know that it generally refers to the sound recording of the musical composition, and in future articles, if I say “composition” or “master” you’ll know what I mean.
The fact that a sound recording of a composition contains two copyrights (in the composition and the master) is the reason why, when someone wants to license a recorded composition (for example, to put in a movie or television show), they have to get two licenses; a synchronization license for the composition and a master-use license for the sound recording, and these copyrights are often owned by different people. When the copyrights in the composition and the sound recording are owned by the same person (or people), the synchronization license and the master-use license are often combined in one agreement. Also, the term “sync license” is often used in the music biz, rather imprecisely, to refer to licensing both the composition and the master, so make sure when someone uses the term “sync license” that you have a clear understanding of exactly what they mean.
So, who owns the masters? One common misperception is that whoever pays for the recording, owns it. Payment (to a producer or studio) may be a reason for having ownership, but payment in itself does not determine ownership. Just as with a musical composition, in the absence of an agreement to the contrary, the law presumes that anyone who participated in creating the sound recording owns an equal share of the copyright. This is usually much messier and more complicated that splitting up the copyright in the composition. The reason is, there are usually many more people involved in creating the sound recording, and most of them are not intended by the songwriter or recording artist to have any ownership interest in the sound recording.The producer, sound engineers, mixers, featured artists, session musicians, and anyone else who has a hand in the recording can claim they own a share of the copyright in the masters (or even the composition). And believe me, if a song becomes a big enough hit, those people will come out of the woodwork looking for a piece of your money. For this reason, it is extremely important to have signed agreements with everyone, before you begin recording, that clearly state what they are entitled to for their participation. Customarily, the contributions to the sound recording made by most of these people are “works made for hire” (which I will explain in more detail in another article). A “work for hire” agreement is a written contract that says the person contributing to the recording gets paid in exchange for the person paying them having ownership of the copyright as if they had created the work themselves.
If the recording artist or band is signed to a record label, the record label typically owns the masters. The artist or band is then paid, based on the terms of their record contract, for money the masters earn. The featured artists performing on the recordings also earn a performance royalty for certain types of digital transmission of the masters (non-interactive streaming such as Pandora or SiriusXM) which are paid through SoundExchange.
Without sounding too self-serving, I cannot stress enough that locking down your rights in your sound recordings is complicated and not something you should attempt to do without the advice of counsel.