By: Attorney Stephanie Hay
By the time a song hits radio airwaves two types of copyrights have been created. The first is the performing arts (PA) copyright. The PA copyright is created when the lyric and music are paired. The second is the sound recording (SR) copyright, also known as the master recording copyright. The SR copyright is created when the lyrics, music and artist’s vocal performance are combined to create a unique version of the PA copyright.
Many producers understand their ownership rights in the music, but often don’t recognize their interest in the master recording. Copyright interest in the master recording vest in a producer even if that producer did not write the lyrics or create the music.
The Rule
A producer’s ownership in the master recording is created when the producer has played an instrumental part in bringing together the lyrics, music and artist vocals to make a song that can be identified by the artist’s unique vocal performance. A producer’s ownership in the master recording does not require ownership in the lyrics or music. It is a producer’s unique ability to bring together all the elements and make them sound good that creates their copyright interest in the master recording.
The Realities
Producer’s often transfer their copyright interest in the master’s under the work-for-hire clause. This clause is often found in the producer’s agreement. The work-for-hire clause is a transfer of the producer’s copyright interest to another party. In exchange for their copyright producer’s are paid an upfront producer’s fee and, if lucky, backend producer royalties (also known as producer points). The transfer is usually to the artist’s record label or directly to the artist. A transfer of the producer’s copyright interest in the master recording does not affect their copyright interest as a contributor the the PA copyright. See links below for information on producer’s copyright interest as a songwriter.
Producer’s working with artist not signed to a label should clearly put in writing whether or not they intend to maintain their copyright interest in the master recording. Often times, artist are under the impression that by paying for studio time or paying the producer’s fee the producer will be transferring their ownership in the master recording. Producer’s fees are paid to cover not only the producer’s time but also the cost of the studio, engineer, and more. Producers should be clear on what their fee covers ahead of time and if the transfer of the producers copyright interest is included.
*Additional information on producers interest in the songwriting copyright:
https://haylawgroup.com/music-royalties-part-1-who-why-how-of-mechanical-royalties/
https://haylawgroup.com/music-royalties-part-ii-who-what-how-of-performance-royalties/