Grouping Songs and Sound Recordings on One Application

Dear Rich: I'm a musician and have a question about filing my sound recording and song copyright applications. The copyright circular says that they can be registered in a single application provided the owners are the same. If I do a copyright assignment to my publishing company, does that mean the owners are now different and I couldn't use a single filing for both?
As you know, there are two copyrights at work in music: a song copyright and a sound recording copyright. The song copyright protects the composition. The sound recording copyright protects the recording of the performance of the song. If you're interested in registering both copyrights using one application you can do so if the copyright claimants (that is, the owners) are the same. That would not be the case if the songs were owned by a publishing company and the sound recordings were owned by another entity (see this previous post).
What about DBAs? In some cases, a songwriter's publishing company is a DBA -- that is, the songwriter is simply doing business under another name. In that case the songwriter is the owner for purposes of claiming copyright. If the songwriter also owned the sound recording copyright, both could be registered on one application.
What to do? If songs and recordings are owned by separate entities, the easiest thing to do is to register the songs and sound recordings on separate applications. If your budget is tight, register the songs first, then the sound recordings.
Does it matter if the sound recordings are published or unpublished? Yes, publication matters. The rules differ when registering groups of published and unpublished works.
By the way dept. If you’re registering a sound recording copyright and song copyright in the same electronic application, you would choose "Sound Recording" from the dropdown "Type of Work" menu. As we mentioned in a previous post, we discuss copyright applications in our online course at Lynda.com.
P.S. Dept. Our newest online music law course just dropped!!!

Musician Wonders About Royalty Split

Dear Rich: I (a young artist) have been given a production agreement from a production company. I will be their first 'artist' to develop and shop so it is all very new for us all. With regards to copyrights and grants of rights, what's 'normal' in such an agreement? They are proposing I give all copyrights of all recordings to them for a rights period of 'life of copyright.' What does this mean?! Surely we'd share copyrights and what if some of the songs were solely written (lyrics and music) by myself? Will they get the rights of that too? Like a lot of production agreements out there, they are saying a 50-50 split for net income after all costs (including recording) so based on this 50-50 split surely I get 50% of the rights? Unfortunately, the arrangement is not that unusual for the music business. Musicians commonly give up copyrights in return for a suitable payout. Our first concern is whether there's any track record for the production company. That is, is there any evidence that the producers can create successful recordings and more importantly whether they are reliable record keepers and will pay you the money you are owed? And if the recordings are unsuccessful, can you get the rights back?
By the numbers. A second concern is whether the deal makes financial sense. If the production company owns the studio, chances are good that the producers will be liberal about billing you for recording and producing costs -- expect charges of $10,000 to $20,000 for a complete album (and it could be much higher). You would have to recoup all of this income (and perhaps more) before you see a dime. If the company is shopping your recording to a label, then you will probably end up receiving even less because the production company will end up getting 12% to 20% of the net income from record sales from the label (and your 50% would come out of that). Nowadays, it's pretty tough to earn $10,000 or more on a recording. Professional musicians indicate that sales are down so dramatically, that they account for less than 6% of a musician's income. (BTW, the average professional musician in the U.S. earns about $34,000 a year before expenses.) So before you sign away rights, you may want to consider whether you can accomplish a cool recording on your own ... after all, many great recordings were made using homegrown studios.
"Yeah, yeah, but otherwise I can't make a record ..." Yes, we know that the production company is taking a risk devoting their time and energy to make a recording. So, we can understand their desire to acquire rights and make money. So if you're going ahead with the deal, we think you should look for some safeguards. Keep in mind, there are two sets of rights at work here --  song copyrights and sound recording copyrights. We can understand having to give up on sound recording copyrights but we'd like to see you retain as much of your songwriting copyright as possible. Read up on music law and copyright, or talk to an attorney, and see if you can set up a co-publishing arrangement. Can you get rights back to your songs based on time (say five years), lack of sales, or failure of the company to get a deal? Can you cap or control recording costs? Can you control any other deductions made before you get paid? We could come up with other questions but it's time for us to play some Words with Friends.
Related info: Ten Tips for Songwriters

Do I Need Voice Over Clearance?

Dear Rich: I'm trying to sort out all the various copyright issues surrounding the recording of audio programs to be used on radio and podcasts. While I know that there needs to be clearance for music used, and arrangements for the recording studio to transfer copyright in the recordings back to me, I'm a bit unclear about the copyright issues surrounding the people who are voicing the program from scripted materials. Is it also necessary to have them sign work for hire or copyright assignments? Do they have any copyright in the materials they've been paid to voice? If the readers are not employees, you should have them sign releases. A narrator, reader, or voice-over artist could conceivably make a claim as partial owner of a sound recording copyright. To avoid that result, have them release such rights -- we've provided a free downloadable agreement you can use and customize. More information on the release is provided in a previous entry.

Band Wants to Use Samples of Poets

Dear Rich: My band wants to use samples in our CD. One of the sources is a compact disc of famous poets reading their work (compilation called "Lunapark 0, 10" recorded by subrosa (most all the authors are long deceased, but quite famous: James Joyce, Artuad, Appolinaire, etc.). I used bits and pieces and somewhat altered the snippets. Some are longer excerpts. Do I need to track the copyright down by author and their publisher/estate? There are two copyrights at work: one is in the poetry that's read (the literary copyright) and the other in the recording (the sound recording copyright).
What's public domain? If you wish to do everything according to the law, you should review the date of first publication for each copyright (the date of publication of the sound recordings is apparently indicated on the CD covers shown here). If you can determine those dates and then apply the rules found here, you'll know which recordings are public domain. You'll soon see the challenge with this, as pre-1972 sound recording, although not protected by federal la, may be protected under state or foreign laws.
Permissions. We suppose you could contact either: (1) Sub Rosa, the label behind the compilation or (2)  Mark Dachy, the compiler of the collection, and ask whether permission was sought or needed. We think the pursuit of permissions for most of this material will be difficult. Generally, you can assume that newer tracks will be protected --- for example, the three tracks that are post 1972 --- and will require permission. Same for the tracks that include music (they incorporate a third copyright -- the music). As always, it really comes down to whether those who own rights will learn of your use (or care), and as a general rule, the older the work (say, for example, pre-1950s), the less likely you'll wake anybody up.

Who is the 'Author' of Band's CD?

Dear Rich: I have a question about the sound recording copyright. My band recorded a CD. I own the master. Who should be listed under author? Do I include cover tunes since it’s the sound recording, not the words and music being registered? Just so you're clear (and we think you are), your sound recording copyright won't protect the songwriting; it will only protect the particular series of sounds that are “fixed” or embodied in the recording. You should read Circular 56 if you have any doubts about what the copyright protects.
Who is the author of a sound recording? The author of the sound recording is the person(s) who  performed, produced and fixed (or recorded) those musical sounds. Typically that would be the musicians, the engineer and the producer. If you paid all these people to contribute their efforts as works made for hire, then you could be listed as "author" on the application. If not, you would (1) list the authors, and (2) have them all assign their rights to sound recording copyright to you, and (3) list yourself as "copyright claimant." Having the written assignments is a requirement of copyright law but in reality, many copyright claimants for sound recordings don't actually have all of these assignments. Their approach is that such documentation is only needed if someone challenges their rights, which is usually unlikely.
Should we include cover tunes? You should include all of the songs on the albums in your sound recording application. That's because the copyright only protects the versions you've recorded, not the underlying songs. That's different than if you've sampled someone's recording and included it. In that case, you need authorization to use the sound recording. We've written about that before.
P.S. All this talk about masters and new recordings has got the Dear Rich Staff excited about their own soon-to-drop new sound recording copyright, a clip of which is included above.