In my last blog, I started to go over the difference between a copyright in a musical composition and a copyright in a sound recording. They work in concert. A musical composition has to be reduced to a tangible medium in order to trigger copyright protection as of the date of creation. This can really only be done two ways. The first way is to write it down – sheet music with or without handwritten lyrics (which could be protected as literary works, i.e., poems, if there is no music). Obviously, the more common way to reduce a musical composition to a tangible form of expression these days, however, is to record it. So in most cases, an author will have a copyright in their composition when they first record it, such as when Lady Gaga sings a song she just thought up into her phone (I heard she did that on the Howard Stern Show).
Like I mentioned last week, though, while I think that’s a good way in the modern era to quickly document an idea for a song before you forget it, that doesn’t mean you should run out and register a copyright in the resulting sound recording you saved on your phone. Why? Well, first, maybe the idea’s not yet completely worked out, but even if you pulled your car over and sang the whole thing, you probably didn’t create the quality of recording you want to release to the world. That’s where producers come in.
What do producers do? The good ones create high-quality sound recordings using state-of-the-art equipment, and some of them end up as collaborators on the underlying composition, adding parts to the song that are important to the final product. Ignoring other variables, if I hire a producer to record me playing and singing my song, even though I created the song, it is the producer that is creating the sound recording of that song, and therefore the producer is entitled to a copyright in the sound recording.
Artists need to understand this, and especially independent artists who are striving toward a career in music. When you hire a producer, it is important to understand that if you want to make sure you retain the rights in the resulting sound recordings of your songs, you should get the producer to agree to that, preferably in writing. That leads me to bring up the “work made for hire” concept within the U.S. Copyright Act.
When you create a work that is subject to copyright in any medium for your employer, it is a work made for hire, and so your employer owns any copyright in that work. This applies not only to music, but written work product, such as marketing materials, or technical work product, such as source code in the software industry. However, a producer hired by an artist to produce a sound recording of a musical composition is not an employee of the artist.
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Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.
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