Hiring a session musician: royalty question

[daddymack]

wanting a piece...and actually getting a piece, are two totally different things., but it really comes down to the copyright holder and how they file the form SR. Typically session players know going in that the session is that unless otherwise stipulated. So the waiver is not mandatory, but it certainly would be worth doing if you have any qualms about the people you have on your session. Frankly, it is better to pay them a nominal fee and get a receipt to prove it was a 'work for hire' session.

[Meadowlark]

Thanks for the feedback. From what I've heard, a receipt to prove "work for hire" may not be sufficient if the session player wants a piece of the action later.

[Phil O'Keefe]

Thanks for the feedback. From what I've heard' date=' a receipt to prove "work for hire" may not be sufficient if the session player wants a piece of the action later. [/quote']

 

If you have a signed work for hire agreement that they signed before they started the session, and if they were paid according to that WFH agreement, they're going to have a really hard time trying for more. They can try, and in this day and age where it seems like almost anything can happen it's even possible they might win a lawsuit - but it's not very likely.

[daddymack]

^exactly... anyone who has signed a WFH receipt hasn't got a leg to stand on. It is a binding piece of evidence. Crybabies are always going to cry, though, and there are unscrupulous lawyers who will take a case they know they can't win if they know their client is dumb enough to pursue a lost cause...and willing to throw bad money after bad money.

[HoboSage]

Per the U.S. Copyright Act, only certain kinds of works can even qualify as works made for hire regardless of any agreement to make it a work for hire; even if a session musician plays from sheet music, they are still likely making an original contribution to the sound recording, which is a different work from the underlying music and one that, absent a written agreement to the contrary, they could be considered a joint author of; and, all "featured artists" on a sound recording are entitled to digital performance royalties for internet streams and satellite radio broadcasts - royalties separate from and in addition to the performance royalties collected by PRO's, and which are typically collected by SoundExchange.

[Phil O'Keefe]

Per the U.S. Copyright Act' date=' only certain kinds of works can even qualify as works made for hire [i']regardless of any agreement to make it a work for hire;[/i] even if a session musician plays from sheet music, they are still likely making an original contribution to the sound recording, which is a different work from the underlying music and one that, absent a written agreement to the contrary, they could be considered a joint author of; and, all "featured artists" on a sound recording are entitled to digital performance royalties for internet streams and satellite radio broadcasts - royalties separate from and in addition to the performance royalties collected by PRO's, and which are typically collected by SoundExchange.

 

 

Work for hire arrangements are made every day in studios all over the country.

 

Any decent work for hire agreement is going to take both the song's composition into account, as well as the sound recording (SR) copyright. Even the bands that write their own music and are the "featured artists" on the recording usually do not own the SR copyright - the label does. How? Contracts. It's no different with session musicians. Get a well-crafted work for hire agreement from your attorney and have everyone sign it before the start of the session, and make sure they sign for their payment (or issue it in the form of a check so there's a paper trail) and there's very little to nothing they can do later. They knew the terms and conditions of the offer for work, agreed to them, and were paid according to them. Unless there was some sort of fraud involved, a court would throw their copyright claim right out as soon as you show them the work for hire agreement and the cashed check.

 

[Phil O'Keefe]

Publishers "buy" songs all the time for $1. The rest of the provisions of the contract are what provide for the revenue sharing between the writer(s) and publishing company.

[daddymack]

yes, and HoboSage's quoted term absent a written agreement to the contrary is exactly what work-for-hire agreements cover. I have signed a slew of these; all of my studio work is WFH, and therefore I know I'm going to be exempt from royalties. There have been occasions where I was making a significant contribution to the composition/arrangement, and was credited on the SR filing [none of those recordings ever made any money, sadly]. Being listed as a featured artist, which is a completely different deal from being a session musician, is a contractual agreement, signed off by the owner of the SR recording, stipulating the percentage of royalties prior to the recording being released.

Also, the percentages from streaming/radio royalties are so infinitesimal, that unless the recording sells/plays in the tens of millions, you wouldn't see enough from the distribution to buy a skinny latte at starbux...

[WRGKMC]

I think many misinterpret what a copyright is. I've copy written material before and read all the documentation on it which you can get for free just by registering. Registering is free. You're charged a fee for Storage of a copy or your copyright.

 

Recording or writing the music down "is" a copyright.

 

All you do by registering a copy of it in the library of congress is to put a copy in a safe lock box that cant be tampered with.

 

There is no legal force behind the storage of your copyright. The copyright itself is only "evidence" being held for a fee which can be retrieved by a person defending their work against infringement.

 

Its when someone makes a claim against the copyright is where people completely miss the boat.

 

Its up to the person suing you to prove you attempted to deceive or harm someone in the process of registering that copyright. If a persons name isn't on the registered copy they have no licensing rights. They have to prove in court they were supposed to be on the copyright and get a judgment in their favor to collect damages.

 

In the US, During the registration process you spell out "who" has rights and what the rights to that material are. It may be a percentage of the income it generates or it may simply be credits with no money involved. That document can be very simple or extremely complex depending on how its legally drafted. . You can divide up the work note by note right down to the album work and mixing order if you choose to.

 

If a person doesn't have his name on the registered copyright with their rights spelled out in detail then they can sue for damages but getting their name on the registered copyright would likely require a new registration that includes them.

 

Royalties are a separate issue involving possible money earned, not ownership or licensing of a copyright.

 

Session musicians co-own copyright in the sound recording for their live performance in equal shares with the person who owns the original recording. Co-ownership of copyright means that you have the right of consent regarding how the recording is used, whether it be for radio play, use in commercials, film or any other medium. You are also entitled to any royalties generated from the use of the recording.

 

You will not be entitled to anything, if you have agreed to a flat session fee and signed a session musician’s release.

 

 

If you have accept a flat fee or signed a session musician’s release then it will be difficult for you to argue later that you were entitled to more royalties or money than you originally received. If you have signed something, then you have given consent to the owner for any purpose they please, providing your moral rights are maintained.

 

You may be able to argue that you did not understand what you were signing, but courts will be extremely reluctant to void a valid contract. Unless you signed the document under duress or were mentally incapacitated at the time, you will not be able to undo any agreements that you have signed.

[jeffersonparish]

I know this is an old post, but I'm in this situation now...

 

 

To reiterate what HoboSage and Phil said, you definitely need to get a music attorney to draft a WFH for your musicians and even vocalists. Even if you find a free one online, you should still get an attorney to review it.

 

 

Also, in the case you actually did have co-writers...split sheet!

 

 

With an authorship claim dispute, if there's no documented proof of the split percentages, ownership automatically gets divided EVENLY among the co-writers. So if you contributed 90% and they contributed 10%, that could end up being revised to 50/50 if you have no split agreement to prove otherwise...

 

Good luck and I hope everything has been worked out in your situation since then!