Live Recordings - Copyright and Ownership

[TBird]

I occasionally work as a live sound engineer for a small local music venue. I use their in-house rig which includes a digital desk. This desk makes multi-track recordings of each gig very straightforward. So, with the artist/band's prior verbal permission, this is what I have done.

The recordings were initially just for my own interest with no intention of any further publication or distribution but it has been suggested to me that a) the artists/bands involved might like to use some, or all, of their recordings as promotional material and b) the venue could collate the 'best' tracks into a compilation cd which could then be put on sale with the proceeds going to a good cause.

What is the copyright situation for these two scenarios? The recordings feature both original songs and covers. I live in the UK.

Who actually owns the recordings? The artist, the engineer or the venue?

[Drew Stephenson]

Broadly speaking there are two separate copyrights on music recordings. There's the copyright on the composition and the copyright on the recording.
Assuming there are no labels or publishers involved, the band/artist will own the copyright on the composition and you, as the recording engineer, will own the copyright on the recording.
The key thing is that any use requires a licence from both parties.

As for the recordings of covers, I'd just drop them completely. Trying to find our who owns the copyright, and then trying to get a licence will be a nightmare.

[shufflebeat]

Apart from the legal aspects of this situation it's an absolute minefield of consent and respect which can be quite difficult to negotiate after the recording has been done and the band/artist feels like they've been taken advantage of, particularly if there isn't unanimity within the band.

A couple of points that need to be considered if you want to maintain your relationships:

Who owns copyright in any recording? This will over-write the default position, which we have already seen is a complicated area so that needs clearing up first.

Can the band/artist veto recording in the first place?

Does the band/artist have artistic control over whether something should be released as a promotional/commercial recording?

Where is any money/benefit going?

Video?

Digital desks have made a lot of things possible but they have opened several new cans of worms and reopened some old ones.

[James Perrett]

With recordings it is usually the entity that has paid for the recordings who owns the rights to the recordings.

However, in the case of live recordings, where I've done it out of interest rather than payment, I've always offered the recordings to the artist for them to do what they like with. Any push to release the material should come from the artist rather than the recording owner in my opinion.

[shufflebeat]

With recordings it is usually the entity that has paid for the recordings who owns the rights to the recordings.

Very true but that was codified at a time when recording a performance needed paying for, which was a handy barrier to place a legal threshold. Nowadays it's a conversation that might happen (or not) after the event without a commissioning process.

...I've done it out of interest rather than payment, I've always offered the recordings to the artist for them to do what they like with...

I almost fell foul of this one when someone noticed I'd hooked up a HD to the desk and asked if I was recording the gig. I had considered it but, assuming it was a sensitive topic suggested (truthfully) it was for playback but could record if the artist wanted. I was told politely but firmly not to record because they were trying out new material which may or may not go on the next album.

No problem, no fuss but could have gone badly.

[Mike Stranks]

You'll probably find this a useful resource:

https://www.prsformusic.com/

When recording for charitable organisations such as Hospital Radio, Audio Magazines for Older people etc in the past, I've sometimes been subject to rigorous cross-questioning - including signing something - to be assured that the recordings would be used solely for the purposes for which they were made. Some artists were under contract, others didn't want their live material 'getting out there' in an uncontrolled manner.

[The Red Bladder]

This statement is false -

you, as the recording engineer, will own the copyright on the recording.

The engineer owns NOTHING! The venue owns NOTHING!

All the engineer and the venue own is the moral right to identify themselves as the person/place where the recording took place and did the recording.

There are two types of rights for a recording of music - (1) the sounds and (2) the compositions.

1. The sounds are the property of the person making those sounds or the person or body that commissioned those sounds.

2. The composition is divided (usually) into words and music. In the absence of a contract stating otherwise, words and music are given equal weighting.

Music publishing contracts enjoy a specific status and must always be in writing.

The venue owners and-or the engineer can always act as a publisher if they have the means/time/make the effort to do so and register as a publisher with MCPS. This requires a publishing contract with the acts and payment for the compositions if they are registered with MCPS.

[Drew Stephenson]

This statement is false -

you, as the recording engineer, will own the copyright on the recording.

The engineer owns NOTHING! The venue owns NOTHING!

All the engineer and the venue own is the moral right to identify themselves as the person/place where the recording took place and did the recording.

There are two types of rights for a recording of music - (1) the sounds and (2) the compositions.

1. The sounds are the property of the person making those sounds or the person or body that commissioned those sounds.

2. The composition is divided (usually) into words and music. In the absence of a contract stating otherwise, words and music are given equal weighting.

Music publishing contracts enjoy a specific status and must always be in writing.

The venue owners and-or the engineer can always act as a publisher if they have the means/time/make the effort to do so and register as a publisher with MCPS. This requires a publishing contract with the acts and payment for the compositions if they are registered with MCPS.

Going to need a citation for that TRB, everything I can find says that the copyright is on the recording and that, absent other agreements, is owned by the person who made the recording. https://www.gov.uk/guidance/ownership-o ... ight-works

[The Red Bladder]

Busy day today installing a sawmill in our barn, so I'll just post a link -

https://musiciansunion.org.uk/working-p ... -recording

This whole area of rights ownership is unbelievably complex, but boils down to creative input and money (or reward). It also depends greatly on contracts.

There have been many cases of precedent and one pan-EU case. Back in the 70s, some producer stiffed a band in the UK and also stiffed the studio, i.e. he paid nobody and vanished.

Lacking payment, the studio placed a lien on the tapes until payment - and it was not a small sum either! The band litigated against the studio, claiming that, as the self-styled producer/record label had never paid them, they were not musicians for hire and the sounds made were therefore their property. The lien, they claimed, was invalid as they had no contractual relationship with the studio.

The studio lost and had to hand-over the multitracks.

In the pan-EU case (German case since adopted Europe wide as a precedent) the Verband Deutscher Tonmeister brought an exploratory case to the German Supreme Court in the 90s that sought to establish ownership rights for engineers and studios.

As I was then a member of the VDT, this put me in an 'interesting' position as the presiding chair of the Supreme Court was my uncle and he also chaired that case.

"Can't you talk to him?" I was badgered when attending a Tonmeister convention! I smiled sweetly and changed the subject!

The court came to the obvious conclusion that operating a tape recorder does not include much, if any, creative input and therefore cannot impart any ownership rights to the engineer or the studio.

Back to the sawmill . . .

[Drew Stephenson]

Ok, so you're citing a 40-50-year-old case and a 30-year-old EU case.
The government's copyright pages say:
"Copyright protects your work and stops others from using it without your permission.

You get copyright protection automatically - you don’t have to apply or pay a fee. There isn’t a register of copyright works in the UK.

You automatically get copyright protection when you create:

original literary, dramatic, musical and artistic work, including illustration and photography
original non-literary written work, such as software, web content and databases
sound and music recordings
film and television recordings
broadcasts
the layout of published editions of written, dramatic and musical works
You can mark your work with the copyright symbol (©), your name and the year of creation. Whether you mark the work or not doesn’t affect the level of protection you have." (My emphasis)

You create the recording, you have the copyright on that recording.
There is no copyright on 'sounds' any more than there is on ideas. Copyright only exists on things that are fixed, either written down (composition / lyrics) or recorded (the recording).

[Drew Stephenson]

Busy day today installing a sawmill in our barn, so I'll just post a link -

https://musiciansunion.org.uk/working-p ... -recording

Key bits of this text:
"Regarding the following, the Act specifies:
A sound recording: the author is the producer.

“Producer” is defined in the Act as meaning – in relation to a sound recording or a film – the person by whom the arrangements necessary for the making of the sound recording or film are made."

So the person who arranges for that recording to happen is the copyright owner on that recording. If you're the tape op in a commercial studio then you didn't arrange for that to happen so you're not going to own the copyright.

If, on the other hand, you're a one-man band who agrees that the recording will happen and hits record, then you're the producer.

[TBird]

"The court came to the obvious conclusion that operating a tape recorder does not include much, if any, *creative input* and therefore cannot impart any ownership rights to the engineer or the studio."

Really? Then why are sound engineers and producers routinely hired by record companies to make better recordings than (most) musicians could manage on their own?

Also, I have heard stories from the software world where, whatever code an employee creates on company time with company machines, is owned by the company, not the original creator. Why does that doctrine not apply to musical performances and recordings?

[The Red Bladder]

There is no copyright on 'sounds' any more than there is on ideas.

I hope you do not really believe that! If that were the case, nobody would be able to protect their recordings! The sounds are called the mechanical property. The tunes and words are the intellectual property.

And although ideas cannot be subject to copyright, complex ideas can and have been patented - though the IPO does need serious proof of the patentability of a fairy complex idea, such as a novel industrial process. This is easier to do in the US than in the UK. You can certainly copyright and trademark the IP around an idea in the UK.

I have heard stories from the software world where, whatever code an employee creates on company time with company machines, is owned by the company, not the original creator. Why does that doctrine not apply to musical performances and recordings?

It does!

The danger is to confuse the various properties in a piece of music. You play a song in my studio, you own the recording and the publishing rights to the recording, the writers of the music and the lyrics still own their rights and I own nothing.

I pay you £100 per hour to play those songs and I own the recordings and the associated publishing rights (you will have had to sign a release form) but the remaining rights are as above - the writers still own the music and the lyrics.

[Drew Stephenson]

Also, I have heard stories from the software world where, whatever code an employee creates on company time with company machines, is owned by the company, not the original creator. Why does that doctrine not apply to musical performances and recordings?

That's called 'work for hire' and it applies across all creative fields. I regularly create audio and video recordings in my day job, all of the intellectual property (IP) relating to this is owned by the company because I'm paid to do it by the company, for the company.

[Drew Stephenson]

There is no copyright on 'sounds' any more than there is on ideas.

I hope you do not really believe that! If that were the case, nobody would be able to protect their recordings! The sounds are called the mechanical property. The tunes and words are the intellectual property.

Please find me anything, anywhere that says 'sounds' and not 'recordings' are subject to copyright. I can find nothing to support this interpretation. If your understanding is correct I can go and record a saxophone playing every note in the scale and then copyright the "sound" of a saxophone - that's plainly nonsense.

And although ideas cannot be subject to copyright, complex ideas can and have been patented - though the IPO does need serious proof of the patentability of a fairy complex idea, such as a novel industrial process. This is easier to do in the US than in the UK. You can certainly copyright and trademark the IP around an idea in the UK.

You're conflating copyright, patent and trademark here. They're separate things with separate conditions and applications. Copyright is the only one that is applicable to music and recordings.

[RichardT]

Busy day today installing a sawmill in our barn, so I'll just post a link -

https://musiciansunion.org.uk/working-p ... -recording

Key bits of this text:
"Regarding the following, the Act specifies:
A sound recording: the author is the producer.

“Producer” is defined in the Act as meaning – in relation to a sound recording or a film – the person by whom the arrangements necessary for the making of the sound recording or film are made."

So the person who arranges for that recording to happen is the copyright owner on that recording. If you're the tape op in a commercial studio then you didn't arrange for that to happen so you're not going to own the copyright.

If, on the other hand, you're a one-man band who agrees that the recording will happen and hits record, then you're the producer.

Hmm, for live recordings that definition of producer is a bit ambiguous. If the band are playing anyway, irrespective of whether a recording is being made, then do they make the arrangements for the recording? Does the sound engineer, if he offers to make a recording that they weren’t previously thinking of and sets up the equipment? Common sense suggests it is the band, but it’s not very clear.

[Mattsong]

There have been a few of these discussion on copyright lately. A few years back I attended a workshop on copyright in the digital age. The Copyright Lawyer had some good advice. If you ever have a question about copyright, the answer is in the question. Do you have the right to copy? If you are not the original creator, then probably no. Unless you have expressed written consent, do not assume you have copyright. As has been pointed out in other posts, this gets complicated really quickly, especially if lawyers get involved.
Don Henley of the Eagles summed it up nicely in Give Me What You Got.

You got the price of admission-
You don't have to ask permission
To take somethin' from another man
You cross a lawyer with the godfather, baby
Make you an offer that you can't understand

Cheers and happy music making.

[Drew Stephenson]

Hmm, for live recordings that definition of producer is a bit ambiguous. If the band are playing anyway, irrespective of whether a recording is being made, then do they make the arrangements for the recording? Does the sound engineer, if he offers to make a recording that they weren’t previously thinking of and sets up the equipment? Common sense suggests it is the band, but it’s not very clear.

OK, let's take a worked example.
I'm doing sound for a gig.
For simplicity's sake let's assume that the band are unsigned and they are playing all original, instrumental material.
Before the gig I tell the band that I have the facility to record it if they want, they agree to that.
I make the recording of the gig.
At that point there are two copyrights in play.
The first is the copyright on the compositions. This copyright is owned by the band.
The second is the copyright on the recording. I have arranged for this to happen and I own this copyright.
Key thing, to take us right back to the OP, is that whatever happens with these recordings needs to be agreed with both parties.

Let's take another example. Same set-up, but this time the band are playing traditional folk songs (let's say they're >150 years old) with traditional arrangements.
This time there is no copyright in the composition because they are old enough to have entered into the public domain.
There is still a copyright on the recording and I, as the producer, own this. The band have no legal interest in the recording unless I agreed something with them at the start.

If the band are signed, there is a good chance that they might not own the copyright to their songs; they might have signed these over to their label or publisher - in which case they are probably not legally entitled to agree to me recording their set in the first place. Unless they've specifically negotiated that right.

If the band have a distribution agreement, but not a full record deal, they might still be able to agree to the recording of the tracks, but they might not be able to license me to do anything with them if they've already signed an agreement on distribution. But that's really less about copyright and more about contract law and exclusivity and will depend on the distribution agreement in question.

[RichardT]

I still think it’s unclear. The sound engineer did not make arrangements for the band to play the music. They made relatively trivial additional arrangements - possibly as simple as pressing a record button and inserting a USB stick. Does that really count as making arrangements for the recording? It certainly doesn’t correspond to a reasonable interpretation of producer.

I think the only answer here is to consult case law!

[Drew Stephenson]

I still think it’s unclear. The sound engineer did not make arrangements for the band to play the music. They made relatively trivial additional arrangements - possibly as simple as pressing a record button and inserting a USB stick. Does that really count as making arrangements for the recording? It certainly doesn’t correspond to a reasonable interpretation of producer.

Alternatively, the engineer set up all the recording equipment, including making decisions on mic placement and choice, negotiated the agreement with the artist, mixed the recording and, critically, 'fixed' the music in recorded form.
"Producer" just means the person who made the arrangements for making the recording. They didn't have to have made the arrangements for the live show to take place, that's not legally relevant to the recording.

I think the only answer here is to consult case law!

You're almost certainly right!