So you are in the studio working on your latest masterpiece. However, you and your band mates decide that one of your songs needs a little something extra. Whether that something extra is a guest rapper, vocalist, guitar player, percussionist, cowbell expert or Spoonman; there are few things to keep in mind before you bring that superstar, indie hero or friend into the studio.
Ponder upon these questions: Who will own the master recordings? Who will own the publishing? Who can license the song for use in TV shows, commercials, movies or video games? There is another biggie: If your guest is signed to a label, can you release the song at all?
Let’s take each issue in turn. First, who will own the master recordings? Often, the label or entity paying for the recording, mixing and mastering sessions will own the masters. In today’s music industry scene, where more artists are self-financing and recording themselves, the band or group will own the masters. In these instances, the performers will collectively own the masters. Since our guest is a performer does she or he own part of the master? Ready for your favorite answer? Here we go—-maybe. It all depends on what agreements, if any, you have with our guest.
If there is no agreement in place the master could be considered a joint work in which case any master owner could license the master. Now, if our guest came in to do a small part you probably would not be too happy to find that he/she licensed the song without asking you. Thus, you should probably have an agreement in place. If our guest was performing under your direction and guidance or if the performance is specially commissioned you could have our guest enter into a work made for hire agreement. Under this scenario ownership of the master would vest in you. You should address terms such as payment, royalties, credit and so forth within the agreement. If our guest was not performing under your direction or otherwise did not qualify as a work made for hire, the other option is to have our guest assign any ownership over to you. In an assignment our guest would transfer any ownership he or she may have to you within that assignment. Again, you would address payment and royalties. Lastly, you could allow our guest to retain ownership, via a license, while at the same time keeping the exclusive right to license the song.
Next, let’s think about the publishing in the song. As we all know the publishing is made up of the melody and lyric (yes lyric, not lyrics) of a song. So, did our guest assist in writing any of the melody or lyric of the song? This seems an easy question and answer, but oftentimes leads to band breakups and costly court battles. Again, we emphasize the importance of filling out split sheets. It may hurt our bottom line, but will save you years of anger, time and frustration. Under copyright law, when there are two or more authors for a song and the authors intend for the work to be one song they are considered joint authors. If there is no writing stating otherwise, any author can license the song as long as they share royalties and the use doesn’t diminish the value of the work. How do you prove diminishing value? Good question. It is almost impossible to answer. So, we will leave that alone for now. If someone came in and suggested a lyric change , slight key change or tempo change is that person an author? Probably. How would you feel if our guest went ahead and started licensing the song without asking you? Not upset? Wonderful. You may be happy with some exposure and a chance at some money. What if you were negotiating a license and then found out the song had already been licensed by our guest? Not so wonderful? The way to avoid this is to have something in writing stating who can license the song. It can be all the authors, a majority of authors, a key member or anything you feel works for everyone. This could (and should) be part of your inter-band agreement. But, if our guest isn’t in the band you will need a separate agreement to cover his or her contribution. Again, the ways to do this are: i) work made for hire, ii) assignment or iii) license.
Lastly, what if our guest is in a record deal? Record deals usually require the artist to provide exclusive services for the label. Thus, any recording done by that artist must be cleared with the label (the label can also deny or claim ownership). The artist may have a “sideman” clause in the record deal which allows him or her to do outside projects in which he or she is not featured. You can enter into a “step-out” deal which allows you to use the performance of our guest and release and license the sound recording. If our guest is involved in the development of the melody and lyric and is also in a publishing deal you will have to get permission from the publisher. The publisher will want some copyright ownership and may want some administration rights. So, it will save you time and stress if you ask our guest what type of deals, if any, he or she is currently in.
Collaborations can be great. Collaborating with other artists can bring new life to a song. Your creativity may be enhanced by working with artists that you do not normally work with and can, often times, lead to a song you never envisioned. So collaborate away. Just be cognizant of the issues that come along with it.