A musician's Liability

article & interview by John Miller


What is the Liability of the Musician toward the Production Company?

You have a band that is well known locally. A musical production company now represents you, and your first album is coming out soon. Sweet success is on the way. Slow, but it’s on the way. Your hard effort is paying off.

While working for the production company, your band receives an invitation to the Blues Festival at the River Front. Your fellow band members can’t attend but you can, and as lead man on guitar you join several other local bands jamming late in the night. A moment of inspiration strikes you during a slow period onstage, and the guitar riff you came up with in the recording studio with your band is “perfect” so you start playing it. The next morning, the newspaper brags about your guitar playing.

Months later you’re being sued. Why? It seems that perfect guitar riff you played for thousands at the River Front’s jam session was recorded by the promoters of the event, and it's being sold in music stores all across your state. The problem? That “perfect” guitar riff for the blues festival is the major component for a song you and your band wrote together, and it’s got a sound copyright on it.

What’s a sound copyright? you wonder. You find out that as much as you know about playing and writing music, you know absolutely nothing about the business end. And not knowing about the music “business” allowed you to do something stupid. You’ve angered your band members, possibly been kicked out of your band, and are now liable for “monies lost” to your production company.

You realize you’re not the musical expert you thought you were. And now you’re thousands of dollars poorer.

You would think a musician would attempt to find out everything they can about their liability to the production company representing them. The problem is there are myriad rules and regulations.

First off, there are two separate copyrights in music. The first one is the musical composition, and this is the one most understand but even that can get you into trouble. Copyrighted sheet music used in churches without expressed permission is a “no-no.” Unless the sheet music is sold for public use in stores, it’s not yours to use.

The second copyright has a symbol we’ve probably all seen, the “P” in a circle on an album. That symbol shows it has a sound copyright on it, and the sound copyright is what got the musician into trouble in the opening of this article.

There are other factors to consider in a musician’s liability to the production company. What type of production company is it? It’s possible a musician might NOT EVEN KNOW what type of production company he’s working for. You can go here to see the different types of recording companies @ http://www.musesmuse.com.

Beside this, there is the PRO (performing rights organization) to deal with. There are three of these, and each has different requirements and guidelines for publishers (and thus the musicians). You can find their guidelines at their websites:

* BMI

* ASCAP

* SESAC

When asked to write an article about the legal liability of a musician toward the production company, I had no idea how many laws, regulations and possible legal threats there were. At this point in my research, I knew I needed an expert. Enter Jodi Krangle, the Proprietress of The Muse's Muse. I asked her some questions to this daunting subject, and here is what she had to say:

Alors, Et Toi: What is the legal liability of the musician toward the production company?

Jodi: My first response is, “To what?” What does it say in the paperwork? Because there will be paperwork—or there should be if there's an arrangement like this between a producer and a musician.

There are two ways this can work. One way would be the producer being hired by the musician to produce that work in a "work for hire" project.

In that case, the musician is paying directly for the producer and his company's services and therefore, the burden of liability isn't with the ”musician” at all, but with the producer. There will be a contract between the two and all liabilities will be drawn up, notated, signed and witnessed.

The other would be that the musician was signed on to a larger company like BMG or Sony, and a production company was then hired for them. In that case, the paperwork is between the production company and the larger company, but the musician has every right to know what's in that contract. And if the larger company then ends up owning the “masters”

(the finished, final recordings for archival and for reproduction purposes), then the musician should definitely know what the master will be used for (and that would be in the contract).

You'll notice a theme here—contracts really need to be in play in these cases.  Without them, there's no legal leg to stand on at all and neither party has any protection.

(At this point Jodi maintains that we need to keep in mind that she isn’t a lawyer; she is Proprietress of The Muse's Muse).

Jodi continues: A gentleman's (or lady's) handshake is simply not enough these days.  And it also depends on the reason for the relationship in the first place.

Did the musician get told by a larger company they're signed with to work with this producer and his company? If that's the case, then the information about what the liability is between the musician and the producer and his company would be in that larger agreement between the musician and the company that signed him or her.

Alors, Et Toi: Can the musician perform with "other" groups and create "new works" with other bands while working for the production company in solo or group projects?

Jodi: Again, if the producer and his/her company were just hired by the musician to do his/her job, then there's an obligation for the producer to do the best job possible, but there's no conflict if the musician decides to work with other people.  I've even known artists to take songs from different producers and put them on the same album.  It all depends on what's in the paperwork and the nature of the initial business arrangement. (And in this case, all the different people that worked on each project are noted in the liner notes of the CD, including where each song was performed.)

It also depends on what you mean by "producer."  If you're talking about a larger music company like BMG or Sony or the like, they're not really referred to as "producers."  A producer is the person that sits in on recording sessions and helps get the most out of the musicians involved—and who oversees the final sound of at least that one music track when the recording is done (very involved in the mixing, even if he/she doesn't do that mixing him/herself).

Alors, Et Toi: How much of the musician's music is "owned" or "controlled" by the production company?  What about "sound recording copyrights?"  What if he takes one guitar riff he created in the recording studio that is being paid for by the production company, and uses it to create another song outside the production company, perhaps with a different band?

Jodi: Well, it's my understanding that if the musician decides to take that riff and change it up a little to make a new song, there's really nothing that can be done about that.  One riff (in most cases) is not distinctive enough to be copyrighted in and of itself.  And if that spins off to make a completely different song, then it would depend on what's in the paperwork between the production company and the musician.

It may not be violating the “letter” of the agreement, for instance, but it could be violating the “spirit” of it.  And that's an entirely different matter.  That gets down to ethics and that's really a larger question than you probably want answered here.

Bear in mind that Jodi is not a copyright expert or lawyer, and each “contract” a musician has with a publisher has its own rules/regulations. What Jodi is explaining is an “overview” and not “contract specific.” Specific contracts need to be examined by experts and/or lawyers.

Alors, Et Toi: Basically, what exactly is the musician liable for in regard to the production company? How much is he controlled? His album is being created by the production company, but how much does the production company own legally?

Jodi: Again, in most cases, the production company isn't the high guy on the totem pole.  It's the larger music company that has likely “hired” the production company to help create an album for a musician or band that has been signed. If the artist has hired the production company himself—then the question shouldn't be, "What is the musician's liability toward the production company?" but "What is the production company's liability toward the musician that hired them?”  I.e.: they can't take the songs on a master recording and have a different singer record the lyrics; they can't use the music on that recording for other purposes other than what the musicians themselves have allowed in the agreement.

If they were paid for their services, that production company does not own the master files at all (though that should definitely be a part of the written agreement—that the fee also pays for the masters).  They can't reproduce them for other purposes, and they don't own the recording rights so they can't try and sell the songs online or something similar.

Alors, Et Toi: While Jodi is not a lawyer, she is well versed in general knowledge of the music business as the Proprietress of The Muse's Muse. Basically, it comes down to more than a handshake—it comes down to the contract. Contractual agreements are what seem to empower, strengthen, and make the musical world go round. In order for a musician to understand his liability to the production company, he must understand the contractual agreement signed. If he doesn’t know what he is signing, he may very well experience the disaster the fictional character at the beginning of this article experienced. And, it goes without saying, if there is no contractual agreement, then there is no liability.

Write it down in contractual terms, and if you do not know how to do this, find a music copyrighter that is NOT affiliated with the production company. And, by all means, keep making that beautiful music. e agreement.

 

John Miller is addicted to writing. In September of '07 he started submitting his work, and he has 27 publishing credits (in what some call the "little magazines"). Of those publications, four are anthologies. Adhemar le Fey, the Book Review Columnist at The World of Myth e-zine. His most recent endeavor is creating the e-zine "Liquid Imagination" where reality and fantasy blur. John (the finished, final recordings for archival and for reproduction purposes), then the musician should definitely know what the master will be used for (and that would be in the contract). Miller, is also a regular contributor to AET-View his Writer's pag, HERE

 

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