Composers, lyricists, independent recording artists and bands that own the copyright in their music can derive income through the licensing and performance of their compositions and sound recordings. This information sheet explains music copyright and royalties, the role of collecting societies such as APRA/AMCOS and PPCA, and music publishing. Sample agreements that may be relevant include Music Recording agreements guide, Music Studio Recording Agreement for Unsigned Artists and Session Musician’s release.
In this information sheet:Composers, lyricists, independent recording artists and bands that own the copyright in their music can derive income through the licensing and performance of their compositions and sound recordings. This information sheet explains music copyright and royalties, the role of collecting societies such as APRA/AMCOS and PPCA, and music publishing. Sample agreements that may be relevant include Music Recording agreements guide, Music Studio Recording Agreement for Unsigned Artists and Session Musician’s release. This information sheet explains the rights in musical works and sound recordings and describes how composers, independent recording artists and bands that own the copyright in their music can derive income through the licensing and performance of their compositions and sound recordings. information sheet on copyright provides basic information on copyright, including ownership of copyright in musical works and lyrics. Generally, the ‘authors’ own the copyright – whether the musical work or the lyrics. However an employer will be the first owner of copyright where the composer or lyricist created the song as part of their employment. There may be a transfer of ownership of the copyright by the author in an agreement relating to the creation of the work. The effect of the Copyright Act is that: · The copyright in music (musical score and/or lyrics) that is created in the course of employment is owned by the employer. This means that if in the course of your employment you are requested to make a musical or literary work then it is the employer who owns the copyright in the work. · However the Copyright Act distinguishes between independent contractors and employees. An independent contractor paid to create music or lyrics is still the first owner of copyright in the works they create, unless there is a written contract that transfers ownership of the copyright – such a transfer of copyright is usually described as an assignment of copyright. · It is possible for the author of music to enter a contract that assigns the rights in the music to another party. The law doesn’t distinguish between the relative contributions of co-authors treating them equally and for this reason contracts are often used to allocate shares of copyright between the authors based on how important each contribution is. Arts Law publishes two sample Band Partnership Agreements that can be used by band members to establish how the band is to operate including clear procedures for determining the ownership of band compositions and sound recordings. information sheet on copyright describes who the ‘maker’ is, and therefore the initial owner of copyright in a sound recording or film. The first owner is the person who made the arrangements for the recording to be created with the payment of the costs being an important signifier as to who is the maker. Band managers, sound engineers and people carrying out the functions of a record producer may all have a claim to be the ‘maker’ of a sound recording. For example, where a record label pays for the recording costs it will usually expect to own the copyright in the resulting sound recordings. Because of the uncertainty as to what contribution is sufficient to be recognised as a person who ‘made the arrangements’ for the recording to be created, it is important to have agreements with every person involved in the creation of a sound recording so that the copyright is transferred to the correct person, band members or legal entity that is intended to be the owner of the copyright. In relation to a sound recording made of a live performance after 1 January 2005, unpaid performers are recognised as having an interest in ownership of copyright in the sound recording jointly with the maker of the sound recording. This means that all musicians and singers, including backing singers, who perform on the recording, may have a claim to be a co-owner of the copyright in the sound recording, unless the performer is employed or paid. A live performance does not require an audience, and whether a studio recording of a song constitutes a live performance is currently an uncertain area of the law. Arts Law publishes a sample Session Musician’s Release that can be used when a musician is being hired to perform as part of a music recording session or for live performance that is being recorded. This Release is intended to transfer any copyright from the session musician or backing singer to the person who is the ‘maker’.
EXAMPLE 1 FACTS: Jane Smith was one of four members of the band “Rockstars”. Prior to joining Rockstars, Jane had written the music and lyrics for a song called ‘Sweetheart’ entirely on her own. Rick is a friend of one of the members of the Rockstars and offered to help them make a sound recording using his computer and recording equipment. The Rockstars performed and recorded Jane’s song ‘Sweetheart’ at the house of Rick Ramrod, who was not paid to make the recording. Rick’s younger sister Sarah, who was also not a member of the band, sang harmonies for the recording of ‘Sweetheart’. Rick created copies of all the recorded songs for everyone in the band so that everyone had a copy of the sound recordings. Sadly the band dissolved a few months later and the Rockstars never released any of their music. A year later, Jane decided to upload some of the songs she had written to SoundCloud, including the song ‘Sweetheart’. Jane did not re-record Sweetheart but instead uploaded the sound recording that the Rockstars made at Rick’s house. A few weeks later, Jane received a copyright infringement take down notice from SoundCloud in respect of the song ‘Sweetheart’. Jane was confused as she wrote the song herself and so believed that she owned the copyright in it. ISSUES: Is Jane able to upload the band’s recording of ‘Sweetheart’ to SoundCloud as she wrote the song herself? ANSWER: While it is likely that Jane is the sole owner of the copyright in the music as a musical work and in the lyrics as a literary work and thus has the exclusive right to reproduce, publish, communicate, perform and adapt the music and the lyrics of the song, it is unlikely that Jane is the sole owner of the copyright in the sound recording of the song. There is a separate copyright that subsists in the particular sound recording that the Rockstars made of the song ‘Sweetheart’. The Copyright Act defines the owner of the copyright in the sound recording as one who is the ‘maker’ of the sound recording. The ‘maker’ of the sound recording is generally: a) The person or persons who made the arrangements for the recording to be created; and b) The musicians who perform the live music on the recording In this scenario, assuming there was no written agreement amongst the band or with Rick or Sarah in relation to the recording, each band member who performed on the recoding of the song as well as Sarah and Rick who made the recording, would be joint copyright owners of the sound recording of the song ‘Sweetheart’. Therefore if Jane wants to upload this particular recording of the song ‘Sweetheart’ she will need to seek permission from each of the copyright owners of the sound recording of the song i.e. each band member who performed on the song including Sarah and Rick who owned the recording medium and helped make the recording.
Band Partnership agreements that can be used when members of a band want to set out how their band will operate, including how decisions will be made as to the management of musical works and sound recordings created by band members. As there are many pitfalls to success as an independent artist or band, it is important to develop an understanding of how the copyright in musical works and sound recordings is managed and how the music industry operate. The Australian Copyright Council provides free information sheets and low cost publications that describe how copyright law operates in relation to the creation and use of musical works and sound recordings. Copyright Collecting Societies. APRA/AMCOS collects royalties for the reproduction, performance and communication of musical works and pays them to copyright owners. Its website explains that the musical work is reproduced when a song is uploaded onto a server for the purpose of a streaming or download service. The musical work is also reproduced when the song is downloaded to the end user or communicated to the public in the operation of a streaming service. If independent musicians and recording artists operate their own website, which includes a download service or music streaming service, then an APRA licence is needed as the operation of these services will involve: · the reproduction of musical works; and · the communication to the public of those musical works. APRA/AMCOS provides information on digital music service providers and licensing of music download services. Even when band members compose the songs, an appropriate APRA downloading or streaming licence may still be required in order that APRA can pay the individual composers and music publishers (if a composer is signed to a music publisher) for the reproduction and communication of musical works. The public performance and communication of sound recordings is managed by Phonographic Performance Company of Australia (PPCA). Independent musicians and recording artists who have not signed with a record label and own the copyright in their sound recordings, can register those recordings with PPCA so that any revenue generated by the reproduction and communication of those recordings to the public can be paid to them.Arts Law publishes an information sheet on Direct licensing guidelines: sound recordings, which provides information about the direct licensing guidelines/policy that all PPCA licensors must have and contains additional information about licensing of sound recordings. The PPCA has an ‘input agreement’, which is the agreement that the owner of the copyright in the sound recordings signs so that PPCA can licence the sound recordings and music videos and to collect royalties on behalf of the owner. Independent musicians and recording artists that own the copyright in their sound recordings can also provide a licence directly to an Online Sales Service ('OSS') to distribute their sound recordings. The Arts Law information sheet Direct licensing guidelines: sound recordings explains how the PPCA’s Sample Direct Licencing Guidelines provides independent musicians and recording artists with choices as to whether to hold back the right to grant licences to use the sound recordings or to pass to the PPCA the responsibility on managing the licencing.Independent musicians and recording artists that expect to use an OSSshould retain the ability to grant direct licencing when completing their PPCA documents. The direct licensing instructions to PPCA can also be changed from time to time, so that artists and bands can amend those instructions if necessary. If independent musicians and recording artists are using an OSS to distribute sound recordings then it is the responsibility of the OSS to obtain the appropriate licences for the public performance and communication of musical works and sound recordings. The terms and conditions and other information provided by the OSS should be checked to confirm that the OSS has the appropriate licence to reproduce and communicate musical works and sound recordings to the public. Note that there are music collection societies in other countries that provide licences to streaming and downloading services so that APRA & PPCA are only involved with licencing an Australian based OSS.