You might think, "Hey, I recorded these songs, so I own them." But do you really? Read on to find out.
What exactly is a master recording?
In the music business, master recordings are typically regarded as the original or official recording of a performance fixed in a tangible medium like tape, a Pro Tools file, or even an MP3 from which copies can be made. Masters are usually recorded in a studio or similar setup, and these are the tracks that get mixed and mastered (another sound processing step using the same term, but with a different meaning than a master recording).
Released recordings purchased on a CD or digital download are not considered masters, by the way – these physical goods are copies of the original masters.
Who owns the masters?
Common sense and matters of principle usually cause most independent artists to feel they should own their masters because they're the ones who contributed the performance and are often paying for the recordings. But, oftentimes, other owners can be involved because master ownership can vary based on law as well as contract.
Some important aspects of copyright law that you should understand have to do with joint authorships and contributions to collective works. True joint authors that meet certain requirements will co-own a copyright and will be able to exercise the same rights in regard to that copyright. People other than the artist who were involved in the recording of the masters can make the argument that their contribution to the recording counts as a copyrightable contribution, and thus makes them joint owners.
Who could potentially claim ownership of my masters?
Independent producers and engineers
Producers and engineers can influence the sound through musical contribution or other direction, recording techniques, microphone placement, etc. Some producers and engineers are more involved than others. With engineers, it’s mostly about the recording and/or mixing techniques used.
In the case of producers, they might just be advising on the sound and encouraging the best performances from the artist, or they might actually be playing instruments on the recordings or co-writing the songs. Producers and engineers may be able to argue partial master ownership based on their contributions, but many independent producers are also using contracts to ensure they own all or part of the masters in an attempt to build an income-producing catalog (in addition to their producer fee and royalty).
For some producers with great influence in the industry, this may be a requirement for artists to work with that producer. However, I always advise artists to make sure that giving up this ownership is actually worth the success this producer will add. Don't give up ownership (or at least not a large portion of it) without being certain that it'll be worth it from a career standpoint.
The contribution here is usually singing or playing instruments, but in either case, it's considered a performance, and performers have rights in and to their performances. In some cases, the vocalist or musician may simply be singing or playing exactly as instructed, and in some cases may be contributing riffs or other variances adding to the work.
In either instance, just paying the vocalist or musician for services rendered may not prevent them from coming back to claim rights in their performances later. Having the vocalist or musician sign an agreement making sure he or she is giving up all rights to that performance and any contributions made is essential.
Recording studios sometimes say that they own the masters, and that they'll release the ownership to the artist once the bill has been paid. They'll argue this because the masters were recorded on studio property with studio equipment and studio employees. While these arguments have been successful in past cases regarding photography, success of these arguments from a music industry standpoint would depend on the actual circumstances of the situation. While the studio does have an argument based on this contribution, these tactics serve mostly as a way for the studio to make sure it gets paid.
Most artists think that because they've paid these other people for their services, their ownership rights are covered. However, paying for something doesn’t always mean ownership of it, especially under copyright law. Section 202 of Copyright Law says, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” So while you may have tape (or hard drive) in hand, that won’t stop someone from claiming an ownership stake of the copyright.
Usually, a recording agreement states that the label will own all master recordings recorded by the artist during the term of the agreement.
“Work made for hire” is another buzz word that artists (and labels) think applies because there was payment for services – and because mostly all recording agreements include this language. A work made for hire must be made by an employee under the scope of his or her employment, or in the case of independent contractors, must be specifically commissioned by the party seeking to own the work and fall within certain categories listed in the law.
In most situations where artists are recording music, the parties involved (whether it be artist v. label, artist v. recording studio, artist v. producer/engineer, etc.) are independent contractors, so the employee provision will not apply.
Sound recordings are also not included in the specific categories that copyright law lists as eligible for work made for hire status. Most labels make the argument that record albums are collective works (one of the allowed work made for hire categories), but this ambiguity leaves masters open for joint ownership without a proper copyright assignment.
When has this come up in the real world?
Here's a recent example: A&M Records sued a recording studio, claiming one of the studio owners had rights to the master recordings for the album Temple of the Dog, by the band of the same name, which was a side project between musicians Chris Cornell (Soundgarden, Audioslave) and Eddie Vedder (Pearl Jam).
The label claimed it bought the masters and the rights from the studio and had an agreement to prove it, but those on the studio side said that not all owners of the studio had signed the agreement, and the owner who had not signed the agreement had not given up his rights to the recordings. The lawsuit recently settled out of court, and the tapes were returned to Cornell.
What can I do to ensure that I fully own my masters?
Artist intending to fully own their masters should have written agreements in place with everyone involved in the recording process: the studio, engineers, producers, and hired musicians. These agreements should clearly state that the artist owns the masters, and include language whereby these contributors will transfer their rights in the masters to the artist.
These agreements do involve many components and complex language, so they should be drafted by an experienced music attorney. If you're unable to hire an attorney, DIY templates of the appropriate agreements can be downloaded from Indie Artist Resource.
Do you have questions that you’d like to get answered in an upcoming "Ask a Music Lawyer" article? Please send topic requests to firstname.lastname@example.org. Please note that specific case advice cannot be given, and if you have questions pertaining to an issue you are personally experiencing, you should seek a consultation with a music attorney.
Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.
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Erin M. Jacobson is a practicing music attorney, experienced deal negotiator, and seasoned advisor of intellectual property rights. She protects clients ranging from Grammy and Emmy Award winners to independent artists, record labels, music publishers, and production companies. Ms. Jacobson also owns and oversees all operations for Indie Artist Resource, the independent musician’s resource for legal and business protection offering template contracts, consultations, and other services designed to meet the unique needs of independent musicians.