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  • Hiring a session musician: royalty question

    I'm hiring a session musician to perform on a song I'm recording. The musician will be performing from sheet music which I wrote; she will not compose anything of her own.

    I'm paying her a flat fee for the session.

    Does she have any rights to royalties or copyright of my song?

    Thanks!

  • #2
    The sheet music fixes your song in a tangible medium of expression to secure your copyrights in the underlying song. But, it would be prudent for you to use the sheet music to register those song copyrights before the recording session. It would also be prudent to have the session musician sign a waiver of royalties agreement /assignment of copyrights so it is spelled out in writing that, in exchange for compensation, whatever right to royalties and/or copyrights the musician might have in the particular recording she is contributing to will be yours and yours alone. Spell it out in writing - you can find forms on the web. Do not rely on the works made for hire doctrine, because chances are it will not apply in this situation.
    " I respect your right to believe bull****************. I don't respect the bull**************** you believe." - David@HoboSage.com

    http://soundcloud.com/hobosage

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    • #3

      Does she have any rights to royalties or copyright of my song?


      Yes, she does have rights to royalties. This royalties are called "performing royalties". This royalties are collected by Performing Rights Societies worldwide, and payed to studio musician as well musician who perform live on tour.

      If she doesn't know, you better tell her, or one day she will be angry with you.

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      • #4
        I'm hiring a session musician to perform on a song I'm recording. The musician will be performing from sheet music which I wrote; she will not compose anything of her own.

        I'm paying her a flat fee for the session.

        Does she have any rights to royalties or copyright of my song?

        Thanks!


        There's no royalty in the US. It's strictly work for hire. That said, outside the US, EVERY other country's PRO does provide for the musicians to get paid as well as the artist who performs the song. Interesting eh?

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        • #5
          There's no royalty in the US. It's strictly work for hire. That said, outside the US, EVERY other country's PRO does provide for the musicians to get paid as well as the artist who performs the song. Interesting eh?


          OK, this is precisely what I believe. From everything I've read, it would be considered a work for hire---no royalties or rights involved.

          http://musicians.about.com/od/otherindustrycareers/p/sessionmusician.htm

          I know that's a simpleton article, but there are many other sources I've read which confirm this.

          Also, I believe "performing royalties" occur when an entity performs your song---like, when a radio station plays it. It doesn't have anything to do with actual musical instrument performance.

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          • #6
            There's no royalty in the US. It's strictly work for hire. That said, outside the US, EVERY other country's PRO does provide for the musicians to get paid as well as the artist who performs the song. Interesting eh?

            It is the American way!

            Yes, and niceguy, make certain you have a written contract spelling out the work for hire was strictly that and on which pieces, what dates the sessions occured and what the payment terms were.
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            • #7
              If you are not a member of a Performers Rights Society (i.e. SCAPR, AEPO-ARTIS IPDA, PRO-LITERIS, Swissperform...), you don't get this kind of royalties. The same as when you are not a member of a Society of Composers, Authors and Publishers, then you also get not payed any of the other kinds of royalties.

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              • #8
                I will say it again, you would be foolish to rely on the work-made-for-hire doctrine under the U.S. Copyright Act in the situation you describe - a session musician is contributing to the sound recording of one song.

                Educate yourself: http://www.law.cornell.edu/uscode/text/17/101 Read the law. Read the law's definition of a "work made for hire" under 117 U.S.C. sec. 101.

                A “work made for hire” is—
                (1) a work prepared by an employee within the scope of his or her employment; or
                (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

                Your session musician will not be your "employee" - you will not withold FICA, pay workers comp. for her, etc. She will be an independent contractor. Thus, her contribution could only be a "work made for hire" under the U.S. Copyright Act if her contribution is to one of the kinds of works described under sub (2). Your session musician is not contributing to a "motion picture or audiovisual work" but to a sound recording, and your session musician is not contributing to an album but just one song, so it's not a contribution to a "collective work" or a "compilation." However, you will note that "sound recordings" are not listed under sub (2) as a type of contribution that you and the session musician can agree in writing be considered a "work made for hire." There was a brief period of time when the recording industry succeeded in amending the Copyright Act to include "sound recordings" as a "work made for hire," but that allowed them to rip off artists, and after an outcry from artists, including Sheryl Crow, that amendment was quickly repealed. That's what the additional language under the statute's definition of a "work made for hire" refers to - the repeal of that amendment to include sound recordings. In this situation, your independent-contractor session musician's contribution to a single song's sound recording cannot, as a matter of law, be a "work made for hire" under the Copyright Act, regardless of whether you and the session musician want it to be so considered, and you better believe that's how the U.S. federal courts will see it.

                So, in the situation you describe, having a written agreement with the session musician that her contribution will be considered a "work made for hire" would not be enough, and by itself, will likely have no validity whatsoever under the Copyright Act. You need to get an assignment of her copyrights to you. Now, given that her contribution is to only play what you have already fixed in sheet music, there's a good chance that her contribution to the song's sound recording would not be considered "original" enough to even entitle her to a claim of joint authorship. But, why take that risk? Get her to assign to you all of her copyrights, if any, she has in the contribution she makes to the sound recording. An ounce of prevention is worth a pound of cure.
                " I respect your right to believe bull****************. I don't respect the bull**************** you believe." - David@HoboSage.com

                http://soundcloud.com/hobosage

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                • #9
                  Session musician are also payed under ---> Related Right: § Performers right. That means each time a recording is broadcasted, a compact disc is sold, and the musician plays the song live with the artist he recorded the song, as well other musician who are not on the recording, the musicians get payed perfoming royalties.

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                  • #10
                    I'm hiring a session musician to perform on a song I'm recording. The musician will be performing from sheet music which I wrote; she will not compose anything of her own.

                    I'm paying her a flat fee for the session.

                    Does she have any rights to royalties or copyright of my song?

                    Thanks!


                    No, not at all.

                    Comment


                    • #11
                      Of course she has the right to royalties.

                      This royalties are called: "Perfomer's Royalties", and are part of the Related Rights, also called "neighbouring rights".

                      The protection of performers is perhaps the strongest and most unified of the related rights. A performer (musician, actor, etc.) has an intellectual input in their performance over and above that of the author of the work. As such, many countries grant moral rights to performers as well as the economic rights covered by the Rome Convention (Arts. 7–9), and the rights of paternity and integrity are required by the WPPT (see § Art. 5).

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                      • #12
                        Even when the author is not a member of ASCAP, BMI... the performer still has the right to collect this royalties.

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                        • #13


                          Does she have any rights to royalties or copyright of my song?

                          Thanks!


                          Royalties? Yes. Copyright? Absolutely 100% no. Whoever wrote the song (seemingly you) owns the copyright. Unless you have transferred ownership of the song to a publisher, you and any other co-writer own the copyright.

                          She would be entitled to featured musician royalties via SoundExchange. They pay musicians statutory royalties for recordings when they are played on Cable TV, satellite, and internet radio. www.soundexchange.com

                          Any back-end performance royalties payed by your PRO would go to YOU. Not to them. ASCAP, BMI, and SESAC pay composers and publishers. Not session musicians.

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                          • #14
                            We hired session players for an EP we recorded back in 2009, and our Entertainment Lawyer gave us releases that stated the hired performer is waiving any rights to copyright or royalties. I've signed them myself as a hired player. At least in this area, no studio musicians have any expectation of royalties, and would be foolish to refuse to sign a release. They are being paid a fee to perform a service. If they don't want to sign, there's a line out of the door of professional players who will. Maybe it's different in other regions and around the world, but in Pennsylvania, USA, if you want royalties for studio work, I hope you have a lot of savings to live on cause you ain't gonna find work here.
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                            • #15
                              AGAIN...In The US, session musicians are NOT entitled to royalties, nor are they paid by PRO's. ONLY the publisher and the songwriter are. PERIOD. If you hire musicians get them to sign a release, pay them and move on. I live and work in Nashville and you don't have to give a musician a release. It's already known and accepted here how it's done.

                              The legendary Wrecking Crew did not receive royalties for all the songs and albums they played on in the 60's. The session guys here do not receive them for all the country albums they play on either. It's how we do it here in the US. If you were elsewhere as Angelo stated, it would be different.

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