Ownership of live recording...

[frenchy]

Howdy,

I play bass in a band. The band draws lots of people and has great
energy. I also run a recording studio that I own myself. My recording
studio has mobile recording equipment owned by the studio and not by me
personally. I bring the studio's laptop set-up totaling approx $6,000
-$8,000 and record a lot of our shows from stage using just 2 of the 18
possible channels. Yes, its kind of a pain in the ass to bring it
every time. While everyone else is setting up their performance rigs,
I set-up 2 rigs... my bass rig and my recording rig with two mics.
Sometimes the recordings turn out great and sometimes they don't
depending on the stage and where I put the mics etc. No one is paying
me, so I just live with the risk of getting a good recording or
not...and hope for something good...actually I hope for something
outstanding that fans would like to buy....hmmm... who owns the
recording when I record a gem?

We had a band meeting the other day to talk about incorporating, etc
and the question came up from one of the girls..."where are these
recordings and can I listen to all of them?". My response was "well I
just record them and keep them sitting on a hardrive because I am an
archivist. I do listen to some of them in the background while I work
on electrical design work listening for the gems, but otherwise it
would take too long for me to mixdown and distribute consumable copies
for everyone." I record @ 48khz and 32bitfloat and to EQ, mix, master
and bounce down consumable files for every show would, in my opinion,
be an unfair usage of my business time to do as a donation to the band.

The conversation then lead to ownership of the recordings where the
"taper fans" have signed agreements that say that the band owns 100% of
the recordings.

Now don't get me wrong here, me and the rest of the band are on
excellent terms, but I want to know how to handle this situation
without screwing over my business equipment investment or my recording
skills investment and at the same time being fair to the band that I am
part of and love.

Here is an example recording that turned out pretty well, but I feel
that with the right night and the right room and the right performance
I could have something waaay better than this that could go onto a
merchandisable recording...
http://www.houseofharmonystudios.com/media/BigLegEmma/2006-07-28-WalleyeWillies-sunsong3.mp3
[some out of tune vocals and such, but otherwise in the right
direction]


So, specifically, here are my questions and concerns...
1) What formal agreement would work between my studio business and the
band corporation? I suppose if the band provided the equipment, then
my studio could be left out of it completely, and I would just be
providing my recording knowledge for the benefit of the band? With my
studio providing the risk of using $6-8k of valuable and important
equipment, not to mention all of the storage space necessary, then I
feel like the studio should own a significant portion of the recording.
What is fair for both parties?

2) If the band wants to obtain copies of each recording for their own
personal review, how do I justify the time spent preparing hours and
hours of material on a weekly basis without taking a major hit to my
business? (I already donate a good amount of hours to the band per
week doing other band duties.)

Thank you for any input on this. I would like to keep things positive
and healthy with the band and with the business. I feel that some
written agreement that we both agree on is the way to go here.

respectfully,
frenchy

Steve French
www.houseofharmonystudios.com/
http://www.biglegemma.com/

[Scott Dorsey]

frenchy > wrote:
>I play bass in a band. The band draws lots of people and has great
>energy. I also run a recording studio that I own myself. My recording
>studio has mobile recording equipment owned by the studio and not by me
>personally. I bring the studio's laptop set-up totaling approx $6,000
>-$8,000 and record a lot of our shows from stage using just 2 of the 18
>possible channels. Yes, its kind of a pain in the ass to bring it
>every time. While everyone else is setting up their performance rigs,
>I set-up 2 rigs... my bass rig and my recording rig with two mics.
>Sometimes the recordings turn out great and sometimes they don't
>depending on the stage and where I put the mics etc. No one is paying
>me, so I just live with the risk of getting a good recording or
>not...and hope for something good...actually I hope for something
>outstanding that fans would like to buy....hmmm... who owns the
>recording when I record a gem?

Whoever the contract says owns it. If there is no contract, then whoever
has the better lawyer owns them.

>We had a band meeting the other day to talk about incorporating, etc
>and the question came up from one of the girls..."where are these
>recordings and can I listen to all of them?". My response was "well I
>just record them and keep them sitting on a hardrive because I am an
>archivist. I do listen to some of them in the background while I work
>on electrical design work listening for the gems, but otherwise it
>would take too long for me to mixdown and distribute consumable copies
>for everyone." I record @ 48khz and 32bitfloat and to EQ, mix, master
>and bounce down consumable files for every show would, in my opinion,
>be an unfair usage of my business time to do as a donation to the band.

So give the girls copies of those recordings and let them sort through
them. If they want to listen to all of them, let them do so.

>The conversation then lead to ownership of the recordings where the
>"taper fans" have signed agreements that say that the band owns 100% of
>the recordings.
>
>Now don't get me wrong here, me and the rest of the band are on
>excellent terms, but I want to know how to handle this situation
>without screwing over my business equipment investment or my recording
>skills investment and at the same time being fair to the band that I am
>part of and love.

I'd say ownership should be joint but you should take points on anything
that gets released. That seems a fair thing to me. You might want to
add in something saying that some number of band members have to approve
everything being released; that way if one member drops out and refuses
to allow anything to be used, the material can still be used by the remaining
members.

>1) What formal agreement would work between my studio business and the
>band corporation? I suppose if the band provided the equipment, then
>my studio could be left out of it completely, and I would just be
>providing my recording knowledge for the benefit of the band? With my
>studio providing the risk of using $6-8k of valuable and important
>equipment, not to mention all of the storage space necessary, then I
>feel like the studio should own a significant portion of the recording.
> What is fair for both parties?

I'd tend to go with joint ownership plus the studio gets points.

>2) If the band wants to obtain copies of each recording for their own
>personal review, how do I justify the time spent preparing hours and
>hours of material on a weekly basis without taking a major hit to my
>business? (I already donate a good amount of hours to the band per
>week doing other band duties.)

Don't. Make the raw tracks available and show them how they can play
them back. And believe me, it's much worse when you run 1" tape where
the original master is a unique physical item.
--scott
--
"C'est un Nagra. C'est suisse, et tres, tres precis."

[Danny T]

frenchy wrote:
> Howdy,
>
> I play bass in a band. The band draws lots of people and has great
> energy. I also run a recording studio that I own myself. My recording
> studio has mobile recording equipment owned by the studio and not by me
> personally. I bring the studio's laptop set-up totaling approx $6,000
> -$8,000 and record a lot of our shows from stage using just 2 of the 18
> possible channels. Yes, its kind of a pain in the ass to bring it
> every time. While everyone else is setting up their performance rigs,
> I set-up 2 rigs... my bass rig and my recording rig with two mics.
> Sometimes the recordings turn out great and sometimes they don't
> depending on the stage and where I put the mics etc. No one is paying
> me, so I just live with the risk of getting a good recording or
> not...and hope for something good...actually I hope for something
> outstanding that fans would like to buy....hmmm... who owns the
> recording when I record a gem?
>
> We had a band meeting the other day to talk about incorporating, etc
> and the question came up from one of the girls..."where are these
> recordings and can I listen to all of them?". My response was "well I
> just record them and keep them sitting on a hardrive because I am an
> archivist. I do listen to some of them in the background while I work
> on electrical design work listening for the gems, but otherwise it
> would take too long for me to mixdown and distribute consumable copies
> for everyone." I record @ 48khz and 32bitfloat and to EQ, mix, master
> and bounce down consumable files for every show would, in my opinion,
> be an unfair usage of my business time to do as a donation to the band.
>
> The conversation then lead to ownership of the recordings where the
> "taper fans" have signed agreements that say that the band owns 100% of
> the recordings.
>
> Now don't get me wrong here, me and the rest of the band are on
> excellent terms, but I want to know how to handle this situation
> without screwing over my business equipment investment or my recording
> skills investment and at the same time being fair to the band that I am
> part of and love.
>
> Here is an example recording that turned out pretty well, but I feel
> that with the right night and the right room and the right performance
> I could have something waaay better than this that could go onto a
> merchandisable recording...
> http://www.houseofharmonystudios.com/media/BigLegEmma/2006-07-28-WalleyeWillies-sunsong3.mp3
> [some out of tune vocals and such, but otherwise in the right
> direction]
>
>
> So, specifically, here are my questions and concerns...
> 1) What formal agreement would work between my studio business and the
> band corporation? I suppose if the band provided the equipment, then
> my studio could be left out of it completely, and I would just be
> providing my recording knowledge for the benefit of the band? With my
> studio providing the risk of using $6-8k of valuable and important
> equipment, not to mention all of the storage space necessary, then I
> feel like the studio should own a significant portion of the recording.
> What is fair for both parties?
>
> 2) If the band wants to obtain copies of each recording for their own
> personal review, how do I justify the time spent preparing hours and
> hours of material on a weekly basis without taking a major hit to my
> business? (I already donate a good amount of hours to the band per
> week doing other band duties.)
>
> Thank you for any input on this. I would like to keep things positive
> and healthy with the band and with the business. I feel that some
> written agreement that we both agree on is the way to go here.
>
> respectfully,
> frenchy
>
> Steve French
> www.houseofharmonystudios.com/
> http://www.biglegemma.com/

There are some questions to be answered first:
1. Did you have permission to record your band?
2. Was there any pay or cost discussed before hand?
If no one cared that you recorded the band and no pay was discussed
then you own the recordings outright.

Your recording studio (you) might want to charge you for equipment but
that is totally besides the point and probably not an issue to
ownership of the recordings.

Unless someone told you that you could not record them, they are yours
to do with as law will let you.

Laws will let you sell them if you had permission to record, the songs
were published and the musicians willingly let you record them.
Permission must be granted from the copyright owner unless the songs
were published.

If the songs were published, you owe the copyright owner standard
royalties for each song on the record for each copy sold. You may owe
the performers a performance royalty but that would be determined by
the recording agreements you made.

You band DOES NOT own the recordings. You were the producer of those
and can control them unless you were suppose to be doing the work for
the band and compensation was paid. If your band says they recordings
are theirs without owning you anything they would be forcing you into a
contract that they have no right to and asking you to work for free.
That concept under illegal contract and unjust enrichment.

My humble opinion is that you should treat it as a loose record deal.
You should ask for reasonable recording costs to be paid from the sale
of the recordings and that all those costs be recouped before any other
costs are paid out. Then, you should also require a producer's fee of
whatever you decide upon but I would suggest no less then 20% of all
profits. Since you are in the band, you should also collect an equal
portion of what the band members get and the statutory fees should be
paid to the copyright holders. On top of those monies, you should also
be compensated for the responsibilities of being a record company
should you be the one to manufacture, distribute, sell, and account for
the recordings. If someone else does that, you should pay those fees to
him or her but oversee the accounting.

Any band that claims your recordings to be theirs is pretty newbie and
is unreasonable. They want your time for nothing, your equipment for
nothing and your talent for nothing. That is a straight up insult and
you should call them on it. Hell, hand them a print out of this post
and tell them at least one other guy thinks that way. I have a record
company, publishing company and studio. There is no way I would do
anything for free because no matter how much I like someone, this is my
livelihood and if someone is my friend, they would want to give me back
something of equal value. If they felt otherwise they're a smiling
sponge, not a friend!

[[email protected]]

It sounds like you should make some sort of agreement with the
other band members. Even though you are making an investment
in the recording equipment, the performances are more importantly
the artistic (and probably legal) property of the band. They, and
justly I might add, likely will want to have some say in how they
are distributed... which performances, how, and with what sort
of profit stream. Better to make a thoughtful agreement now than
get in a fight later.

[George Gleason]

> and the question came up from one of the girls..."where are these
> recordings and can I listen to all of them?".

Have her supply you a 200 gig usb hard drive and do a mass dump of the
unmastered files on it
give it to back to her,
George

[Danny T]

George Gleason wrote:
> > and the question came up from one of the girls..."where are these
> > recordings and can I listen to all of them?".
>
> Have her supply you a 200 gig usb hard drive and do a mass dump of the
> unmastered files on it
> give it to back to her,
> George

I think George like the girl ;-)

[Romeo Rondeau]

>> and the question came up from one of the girls..."where are these
>> recordings and can I listen to all of them?".
>
> Have her supply you a 200 gig usb hard drive and do a mass dump of the
> unmastered files on it
> give it to back to her,
> George

I agree with this, George. I'd also like to add that when they realize they
are over their head, they should have a new found appreciation for your
knowledge, skill and expertise... if they want a "listenable copy," the band
should reimburse you for the time it takes to prepare the tracks. I'm
assuming that the band gets paid for their time when they are playing. Your
decision to record the show on your own nickel doesn't include preparing
tracks for someone else to "listen to all of them" Fair is fair. As for the
ownership, you should own it unless there is another agreement.

[Richard Crowley]

Even beyond the question of who owns the recordings is who
owns the copyright to the music/lyrics? Did you mention whether
these were original compositions or covers?

[Ian Bell]

frenchy wrote:

> Howdy,
>
> I play bass in a band. The band draws lots of people and has great
> energy. I also run a recording studio that I own myself. My recording
> studio has mobile recording equipment owned by the studio and not by me
> personally. I bring the studio's laptop set-up totaling approx $6,000
> -$8,000 and record a lot of our shows from stage using just 2 of the 18
> possible channels. Yes, its kind of a pain in the ass to bring it
> every time. While everyone else is setting up their performance rigs,
> I set-up 2 rigs... my bass rig and my recording rig with two mics.
> Sometimes the recordings turn out great and sometimes they don't
> depending on the stage and where I put the mics etc. No one is paying
> me, so I just live with the risk of getting a good recording or
> not...and hope for something good...actually I hope for something
> outstanding that fans would like to buy....hmmm... who owns the
> recording when I record a gem?
>

You made the recordings so they belong to you - others have explained this
is detail.

What puzzles me is WHY you made the recordings in the first place? The only
reason I can gather from your post is that you are 'an archivist' but that
seems a little thin to me.

Ian

[Ian Bell]

wrote:

> It sounds like you should make some sort of agreement with the
> other band members. Even though you are making an investment
> in the recording equipment, the performances are more importantly
> the artistic (and probably legal) property of the band.

The performance is, the recording of it is not. If it is subsequently sold
the band gets paid for the performance (and possibly copyright if they
wrote the material) and the recordist get paid for the recording.

Of course how true this will depend on which country you are in.

Ian

[Laurence Payne]

On 22 Aug 2006 12:38:15 -0700, "Danny T" >
wrote:

>Unless someone told you that you could not record them, they are yours
>to do with as law will let you.
>
>Laws will let you sell them if you had permission to record, the songs
>were published and the musicians willingly let you record them.
>Permission must be granted from the copyright owner unless the songs
>were published.
>
>If the songs were published, you owe the copyright owner standard
>royalties for each song on the record for each copy sold. You may owe
>the performers a performance royalty but that would be determined by
>the recording agreements you made.
>
>You band DOES NOT own the recordings. You were the producer of those
>and can control them unless you were suppose to be doing the work for
>the band and compensation was paid. If your band says they recordings
>are theirs without owning you anything they would be forcing you into a
>contract that they have no right to and asking you to work for free.
>That concept under illegal contract and unjust enrichment.

You're just making this up as you go along, aren't you :-)

[Mike Rivers]

frenchy wrote:
> I bring the studio's laptop set-up totaling approx $6,000
> -$8,000 and record a lot of our shows from stage using just 2 of the 18
> possible channels. Yes, its kind of a pain in the ass to bring it
> every time.

In that case, why do you bother? You aren't getting paid and you don't
have any sort of agreement with the band as to who owns the recordings
and what can be done with them.

> ...actually I hope for something
> outstanding that fans would like to buy....hmmm... who owns the
> recording when I record a gem?

You own the recording, but the band owns the rights to the intellectual
property. You can't use one without the other.

> We had a band meeting the other day to talk about incorporating, etc
> and the question came up from one of the girls..."where are these
> recordings and can I listen to all of them?". My response was "well I
> just record them and keep them sitting on a hardrive because I am an
> archivist. I do listen to some of them in the background while I work
> on electrical design work listening for the gems, but otherwise it
> would take too long for me to mixdown and distribute consumable copies
> for everyone."

She has a very valid question. You could just burn some CDs for her and
let her listen the same as you do. No reason to deny her this
(questionable) pleasure, and after all, she IS a band mate.

> I record @ 48khz and 32bitfloat and to EQ, mix, master
> and bounce down consumable files for every show would, in my opinion,
> be an unfair usage of my business time to do as a donation to the band.

In that case, before you make another recording, ask the band if they
are interested in having their shows recorded. If the are, I'd suggest
recording at 16-bit 44.1 kHz, and burning a set of CDs on autopilot (no
tracks, no EQ, no nuttin') so they can hear the recordings. If, after a
while, they (as a band - not just you) decide that there's enough
worthwhile material to put out a live CD, you can offer to produce it
at a fair price. They may or may not take you up on your offer. But I
don't think you have any right to act indeptendently and just release
your choice material on your own, even if you take a cut for your labor
and give the rest to the band. Without their permission, you really
have no right to the material.

> Now don't get me wrong here, me and the rest of the band are on
> excellent terms, but I want to know how to handle this situation
> without screwing over my business equipment investment or my recording
> skills investment and at the same time being fair to the band that I am
> part of and love.

You graciously volunteered your equipment an time to make the
recordings that you have now, so graciously volunteer to turn them over
to the band. If the band wants to make something of them, then offer
them a fair price for you to "master" the recordings. If they're not
interested, then just keep smiling and play your bass, and don't make
any more recordings until the band decides that they want to record and
that they want you to do it.

> 1) What formal agreement would work between my studio business and the
> band corporation?

Get a lawyer. I'd suggest that if the band wants to hire your studio,
they do exactly that. If they want to hire you as an individual, then
they do that. But don't commit your business to something the band
hasn't agreed to pay for.

> 2) If the band wants to obtain copies of each recording for their own
> personal review, how do I justify the time spent preparing hours and
> hours of material on a weekly basis without taking a major hit to my
> business?

You don't. If you're volunteering, record in a way that it will be easy
to distribute. There's nothing wrong with recording 16/44. You can
pretty that up if they want to use it. But of course if they want to
pay you, by all means, take the job. But understand that it's a job
then, not a favor.

It sounds a bit like you're finally taking stock of what you've been
doing for free, thinking you might have some assets that you can use to
recover some of your volunteer labor, and you're looking for someone to
tell you that it's OK to make some money from the band's music. It
isn't. It isn't right, it isn't moral, and it probably isnt' legal.
Make a fresh start and abide by whatever deal you make. Bring along
something simple and ask for an extra $50 to record the gig and pass ou
CDs at the next get-together. If you do good work and the band is
really good, you might get a paying gig out of it. In the meantime,
remember that you're just the bass player until you're hired as the
recordist as well.

[Geoff]

frenchy wrote:


> 2) If the band wants to obtain copies of each recording for their own
> personal review, how do I justify the time spent preparing hours and
> hours of material on a weekly basis without taking a major hit to my
> business? (I already donate a good amount of hours to the band per
> week doing other band duties.)

Did they ASK you to do that ? If not, then that effort was your own idea.
You could charge them to make a CD of bits that they want, but even that
would seem pretty petty to me. Unless for a commercial project.

geoff

[Mike Rivers]

Danny T wrote:
> Any band that claims your recordings to be theirs is pretty newbie and
> is unreasonable.

They're probably using the term "recordings" loosely. They can't claim
the disks or the bits as theirs, but they can prevent the release of
the recordings, or make a lot of trouble for someone who does release
them.

> They want your time for nothing, your equipment for
> nothing and your talent for nothing. That is a straight up insult and
> you should call them on it.

But they never asked for it in the first place. If the band decides
that the recordings are worth something, they should make him a
reasonable offer for his time and thank him for the effort "on spec."
But if they don't want the recordings, that doesn't give the person who
made them the right to release them, whether for profit or just
bragging rights.

[Danny T]

Mike Rivers wrote:
> Danny T wrote:
> > Any band that claims your recordings to be theirs is pretty newbie and
> > is unreasonable.
>
> They're probably using the term "recordings" loosely. They can't claim
> the disks or the bits as theirs, but they can prevent the release of
> the recordings, or make a lot of trouble for someone who does release
> them.
>
> > They want your time for nothing, your equipment for
> > nothing and your talent for nothing. That is a straight up insult and
> > you should call them on it.
>
> But they never asked for it in the first place. If the band decides
> that the recordings are worth something, they should make him a
> reasonable offer for his time and thank him for the effort "on spec."
> But if they don't want the recordings, that doesn't give the person who
> made them the right to release them, whether for profit or just
> bragging rights.

The way I read that is that they knew he was recording and if the band
didn't say not to record there is a ratification of contract allowing
the recording. If they allowed it, then there is an expectation of use
of those recordings. If the songs were published already, they are in a
pinch, not in control. If standard rates are paid and there is a fair
distribution of funds, I think he's got the right to sell records.
Further, the band has NO expectations of taking ownership of the tapes
without pay or that would fall under unjust enrichment laws. Every
court in the free world would agree with that.

What I listed was simply a list of things for a fair resolve. The man
did work with expectations of being fairly compensated and fair for
what he did is a normal producers expectation.

I did pose the question first as to if they knew and approved of the
recording. If they didn't then it's a whole new ball of poop.

[RD Jones]

> frenchy wrote:

> > No one is paying
> > me, so I just live with the risk of getting a good recording or
> > not...and hope for something good...actually I hope for something
> > outstanding that fans would like to buy....hmmm... who owns the
> > recording when I record a gem?

Ownership of the physical recording and owning the rights to it
are two different issues. You own the recordings and the "Artist"
owns the rights, absent any subsequent legal agreements with
entities such as "Record Co." or "Investors", etc.

Making live recordings on "spec" is commonplace for unsigned
acts and/or independent labels and studios. It's rarely a profitable
venture (been there ...)

> > So, specifically, here are my questions and concerns...
> > 1) What formal agreement would work between my studio business and the
> > band corporation? I suppose if the band provided the equipment, then
> > my studio could be left out of it completely, and I would just be
> > providing my recording knowledge for the benefit of the band? With my
> > studio providing the risk of using $6-8k of valuable and important
> > equipment, not to mention all of the storage space necessary, then I
> > feel like the studio should own a significant portion of the recording.
> > What is fair for both parties?

There's any number of ways you could come to agreement over
how to share responsibility for costs vs how to devide returns.
The important thing is to have some agreement in principal and
to work toward hammering out the details in writing. You might
want to hire a lawyer (or not). I've found sample contracts for
independent record labels online before, sorry I don't have any
links handy.

You have every right to expect some manner of return for your
efforts.

> > 2) If the band wants to obtain copies of each recording for their own
> > personal review, how do I justify the time spent preparing hours and
> > hours of material on a weekly basis without taking a major hit to my
> > business? (I already donate a good amount of hours to the band per
> > week doing other band duties.)

Unfortunately, this is part of the speculative nature of what you've
already started. I used to run off cassette copies of shows for this
purpose with the band providing (or paying for) blanks.

> > I feel that some
> > written agreement that we both agree on is the way to go here.

Of course.

Danny T wrote:

> My humble opinion is that you should treat it as a loose record deal.
> You should ask for reasonable recording costs to be paid from the sale
> of the recordings and that all those costs be recouped before any other
> costs are paid out. Then, you should also require a producer's fee of
> whatever you decide upon but I would suggest no less then 20% of all
> profits. Since you are in the band, you should also collect an equal

20% for producer's cut is way high. More like 5% for an
independent deal. But there's no reason the other associated
costs plus a reasonable profit shouldn't be included in any
agreement.

rd

[Jim Gilliland]

Danny T wrote:

> The way I read that is that they knew he was recording and if the band
> didn't say not to record there is a ratification of contract allowing
> the recording. If they allowed it, then there is an expectation of use
> of those recordings. If the songs were published already, they are in a
> pinch, not in control. If standard rates are paid and there is a fair
> distribution of funds, I think he's got the right to sell records.

No way. He may well own the recordings, but the band owns the
performance. Both owners must agree on any release of material. (And
in addition, of course, royalties must be paid to any composers whose
work may be involved.)

[Laurence Payne]

On Tue, 22 Aug 2006 22:54:06 +0100, Ian Bell >
wrote:

>You made the recordings so they belong to you - others have explained this
>is detail.

The physical media do. The performance on them very likely don't.

[Mike Rivers]

Danny T wrote:

> The way I read that is that they knew he was recording and if the band
> didn't say not to record there is a ratification of contract allowing
> the recording.

It would be up to a lawyer to interpret whether there would be a
"ratification of contract" which I guess means something like an
informal or implied contract.

> If they allowed it, then there is an expectation of use
> of those recordings.

That's reasonable, but what use? Maybe they just decided that they
might want to listen to them some time. It isn't a full license for the
one making the recording (and in posession of the recorded media) to do
whatever he wants with it. This is the sense in which the band "owns"
the recording.

> If the songs were published already, they are in a
> pinch, not in control. If standard rates are paid and there is a fair
> distribution of funds, I think he's got the right to sell records.

And I suspect that if he were to offer to pay the comulsory license the
band wouldn't object to having some income, as long as they approved of
the performance. But then if the band didn't like what they did,
chances are nobody else would either, and sales would be pretty slim.
This is all way over the top speculation.

We don't know what kind of a band it is. If it's a cover band, then
surely the songs are covered under compulsory license, but the
performance is something different.

> Further, the band has NO expectations of taking ownership of the tapes
> without pay or that would fall under unjust enrichment laws. Every
> court in the free world would agree with that.

What's the difference between not taking ownership and legally blocking
their use by anyone else? If this were to come to blows, lawyers wouild
get involved.

> What I listed was simply a list of things for a fair resolve. The man
> did work with expectations of being fairly compensated and fair for
> what he did is a normal producers expectation.

He did? I thought he wrote that he made the recordings out of the
goodness of his heart, with the thought that perhaps they may at some
time in the future net him some income. If he expected to be
compensated for his time and equipment, he should have made that clear
before he set up.

[Danny T]

Jim Gilliland wrote:
> Danny T wrote:
>
> > The way I read that is that they knew he was recording and if the band
> > didn't say not to record there is a ratification of contract allowing
> > the recording. If they allowed it, then there is an expectation of use
> > of those recordings. If the songs were published already, they are in a
> > pinch, not in control. If standard rates are paid and there is a fair
> > distribution of funds, I think he's got the right to sell records.
>
> No way. He may well own the recordings, but the band owns the
> performance. Both owners must agree on any release of material. (And
> in addition, of course, royalties must be paid to any composers whose
> work may be involved.)

composers would be the copyright holders either/or they were a work for
hire.

Y'all need to review just how up for grabs things can be if you don't
protect yourselves!

[Danny T]

Mike Rivers wrote:
> Danny T wrote:
>
> > The way I read that is that they knew he was recording and if the band
> > didn't say not to record there is a ratification of contract allowing
> > the recording.
>
> It would be up to a lawyer to interpret whether there would be a
> "ratification of contract" which I guess means something like an
> informal or implied contract.

I think you mean it would be up to a judge or jury but actually it
would be up to a combination of cases in the past that set the
president for the judge to consider, all of which would lead away from
the bands rights, that is if they knew they were being recorded.
>
> > If they allowed it, then there is an expectation of use
> > of those recordings.
>
> That's reasonable, but what use? Maybe they just decided that they
> might want to listen to them some time. It isn't a full license for the
> one making the recording (and in posession of the recorded media) to do
> whatever he wants with it. This is the sense in which the band "owns"
> the recording.

Agreed, but you have heard the expression that tie goes to the runner?
In a case where someone could be hurt and they other only has something
to gain, I think the side would be taken that if the band was to make
money in one case and they investor would lose everything in the other,
the court would most definitely decide against a band.
>
> > If the songs were published already, they are in a
> > pinch, not in control. If standard rates are paid and there is a fair
> > distribution of funds, I think he's got the right to sell records.
>
> And I suspect that if he were to offer to pay the comulsory license the
> band wouldn't object to having some income, as long as they approved of
> the performance. But then if the band didn't like what they did,
> chances are nobody else would either, and sales would be pretty slim.
> This is all way over the top speculation.

Exactly! There is no reason why they wouldn't want to sell
recordings, that is their business after all.
>
> We don't know what kind of a band it is. If it's a cover band, then
> surely the songs are covered under compulsory license, but the
> performance is something different.

There really isn't very much meat in the original post but I thought
there are others that might benefit from thinking about these things.
It kills me to see this kind of thing and even worse, when people post
their songs without any notice thinking the whole world will honor
another countries copyright policies.
>
> > Further, the band has NO expectations of taking ownership of the tapes
> > without pay or that would fall under unjust enrichment laws. Every
> > court in the free world would agree with that.
>
> What's the difference between not taking ownership and legally blocking
> their use by anyone else? If this were to come to blows, lawyers wouild
> get involved.

Yes they would but I suspect that there would be a compromise with
money and everyone would eventually make an arrangement.
>
> > What I listed was simply a list of things for a fair resolve. The man
> > did work with expectations of being fairly compensated and fair for
> > what he did is a normal producers expectation.
>
> He did? I thought he wrote that he made the recordings out of the
> goodness of his heart, with the thought that perhaps they may at some
> time in the future net him some income. If he expected to be
> compensated for his time and equipment, he should have made that clear
> before he set up.

Humm, I saw something else but no matter, there is nothing to harsh
here. He likes them and they like him. He just needs to be sure not to
get undercut or walked on. There is too much hate that builds up when
people don't stand up for what they feel they need and that ends up
breaking up more great bands then anything. Contracts don't make
people honest but they do help keep them friends. The sooner they come
to a conclusion that works for everyone the better they will get along
in the future.

[Ian Bell]

Laurence Payne wrote:

> On Tue, 22 Aug 2006 22:54:06 +0100, Ian Bell >
> wrote:
>
>>You made the recordings so they belong to you - others have explained this
>>is detail.
>
> The physical media do. The performance on them very likely don't.

I was summarizing to avoid repetition.

Ian

[Ian Bell]

Ian Bell wrote:

> Laurence Payne wrote:
>
>> On Tue, 22 Aug 2006 22:54:06 +0100, Ian Bell >
>> wrote:
>>
>>>You made the recordings so they belong to you - others have explained
>>>this is detail.
>>
>> The physical media do. The performance on them very likely don't.
>
> I was summarizing to avoid repetition.
>
> Ian

But to clarify, that recording is his. No one can do anything with that
recording without his permission. He does not own the songs (unless he
alone wrote them). However, as he owns the recording, provided he pays the
appropriate copyrights, he can publish/release it. No one else can do this.
Like I said, the recordings belongs to him.

Ian

[frenchy]

Richard Crowley wrote:
> Even beyond the question of who owns the recordings is who
> owns the copyright to the music/lyrics? Did you mention whether
> these were original compositions or covers?

They are 80-90% original songs.
The remainder being a mixture of covers such as Dylan, Neil Young and a
collection of traditional fiddle tunes seeing that our fiddle player
was raised on them.

I never for a moment thought about releasing covers (Dylan, etc)....but
the traditionals are an interesting thought. I would like to keep the
discussion to original material....most of which is either co-written
by members in the band or by an individual in the band. I agree about
paying standard royalties to the copyright holders. Some songs are
copyrwritten, some are not. The main writer is thinking about starting
a shoestring publishing company.

We are looking for a good entertainment lawyer in the Buffalo, NY /
Pittsburgh, PA / Cleveland, OH area for incorporating the band,
copyrighting songs, etc., etc. We are starting to have a real budget
to get a real lawyer. Its been a good summer.

thx for all the input thus far!!!
frenchy

[frenchy]

Ian Bell wrote:
> What puzzles me is WHY you made the recordings in the first place? The only
> reason I can gather from your post is that you are 'an archivist' but that
> seems a little thin to me.
>
> Ian


Well, I have been in several bands in my career and historically, I
like to record the shows that I play in (not all the time, but when I
feel like it).... kinda like keeping the family scrapbook full of
photos, but in audio form. To me, that makes me an archivist....why is
that thin?

The question has recently come up as to who owns my "scrapbook".
Indeed I am concerned about this now BEFORE I even think about
releasing anything and before there are any problems whatsoever. I
will always make all decisions with the band before I do anything
commercial...but I want to be fair to them and to my efforts and to who
owns what.

ps-I have a similar question on the hundreds and hundreds of photos I
take while on the road, because many of them end up being desireable by
people, but alas, that is for a different newsgroup and a different
thread (although it is certainly related).

respect,
frenchy

[frenchy]

Danny T wrote:
> I did pose the question first as to if they knew and approved of the
> recording. If they didn't then it's a whole new ball of poop.

Yes, the band was definitely aware and encouraged me to record. I have
a feeling though that in each persons mind there were different things
going on.....some members thought the band would own the recordings,
whereas, I, of course knew that I did. Without formal written
agreements I have found that humans tend to make up their own version
in their own mind.....until one day the minds collide.

Again I repeat that we are all on great terms and I intend to keep it
that way. I am looking for a fair and written out agreement between
all parties BEFORE the time comes to release material in a commercial
capacity.

respectfully,
frenchy

[RD Jones]

frenchy wrote:

> I never for a moment thought about releasing covers (Dylan, etc)....but
> the traditionals are an interesting thought. I would like to keep the
> discussion to original material....most of which is either co-written
> by members in the band or by an individual in the band. I agree about
> paying standard royalties to the copyright holders. Some songs are
> copyrwritten, some are not. The main writer is thinking about starting
> a shoestring publishing company.

Copyrighting and publishing are two separate issues.
Both serve as forms of protection for the several parties.
Anything that gets copyrighted is not necessarily published
but by nature that which is published has to be copyrighted.
All the songs released to be sold should be copyrighted
and the songs on the release can be copyrighted as a
"Body of Work".

If you're going to stay in a situation where you or someone
under the control of the band keeps tabs on the sales and
money collected you can get by without having an actual
publishing agreement, since these details are/will be agreed
to in the band's written agreement. This would include selling
the CDs at shows, through a Fan Club and over the internet
on the band's website.

If you plan on selling through outlets you don't have direct
control over then you need to have formal publishing with
one or more of the publishing rights organizations (BMI,
ASCAP...) to collect and distribute royalties.

> We are looking for a good entertainment lawyer in the Buffalo, NY /
> Pittsburgh, PA / Cleveland, OH area for incorporating the band,

My old stompin' grounds !
I'm originally from NE Ohio but I've been in Nashville since the '80s.

> copyrighting songs, etc., etc. We are starting to have a real budget
> to get a real lawyer. Its been a good summer.

Congrats, and good luck.

rd

[Danny T]

frenchy wrote:
> Danny T wrote:
> > I did pose the question first as to if they knew and approved of the
> > recording. If they didn't then it's a whole new ball of poop.
>
> Yes, the band was definitely aware and encouraged me to record. I have
> a feeling though that in each persons mind there were different things
> going on.....some members thought the band would own the recordings,
> whereas, I, of course knew that I did. Without formal written
> agreements I have found that humans tend to make up their own version
> in their own mind.....until one day the minds collide.
>
> Again I repeat that we are all on great terms and I intend to keep it
> that way. I am looking for a fair and written out agreement between
> all parties BEFORE the time comes to release material in a commercial
> capacity.
>
> respectfully,
> frenchy

Try looking on line for a contract. I posted a bunch of hany things
that would work several years ago and several people downloaded them
and reposted them .... need less to say I stopped posting them, but if
you look you wll find some contracts. You can rework them to fit your
need easier then drafting one from scratch.

[Richard Crowley]

"frenchy" wrote ...
> Richard Crowley wrote:
>> Even beyond the question of who owns the recordings is who
>> owns the copyright to the music/lyrics? Did you mention whether
>> these were original compositions or covers?
>
> They are 80-90% original songs.
> The remainder being a mixture of covers such as Dylan, Neil Young and a
> collection of traditional fiddle tunes seeing that our fiddle player
> was raised on them.

Remember that there are a "bundle of rights" at play here.
Among them are...
1) Rights to the music/lyrics (copyright holder of covers, or
the composer, lyricist, the band if it is a jam, etc.)
2) Rights to the performance (held by the band as a group)
3) Rights of the person/company doing the recording

All you can do with your current recordings is to share them
with the performers themselves unless you get permission/
license from ALL the rights holders to distribute copies.

Distributing audio recordings is one thing (mechanical license),
but distributing video/film is different thing (sync license),
printing lyrics (as on CD covers, etc.) is yet another, and
publishing the compositions is even yet annother. Any
competent entertainment lawyer knows these things in
their sleep.

[Richard Crowley]

"Ian Bell" wrote ...
[apparently posting from the UK]
> But to clarify, that recording is his. No one can do anything with that
> recording without his permission. He does not own the songs (unless he
> alone wrote them). However, as he owns the recording, provided he pays the
> appropriate copyrights, he can publish/release it.

No, that is not correct. He cannot distribute copies without permission
of both the owners of the music and the owners of the performance.
Likewise, the performers/band canot distribute copies without permission
of the owner of the recording. All the rights must line up or there is no
distribution.

> No one else can do this.

Not even he can do this.

> Like I said, the recordings belongs to him.

Yes, but the music belongs to someone else (likely the band)
And the rights to the performance belongs to someone else (the band).

Note that the rights you have there in the UK may very well
be different than here in the USA. They are certainly different
for printed music.

[Geoff]

Ian Bell wrote:

> But to clarify, that recording is his. No one can do anything with
> that recording without his permission. He does not own the songs
> (unless he alone wrote them). However, as he owns the recording,
> provided he pays the appropriate copyrights, he can publish/release
> it. No one else can do this. Like I said, the recordings belongs to
> him.


Were the recordings 'authorised' ?

geoff

[[email protected]]

Ian Bell > wrote:
: However, as he owns the recording, provided he pays the appropriate
: copyrights, he can publish/release it.

That is simply not true, because although he would have satisfied
the copyright holder(s), he would not yet have satisfied the holders
to the rights of the performance (in this case, the band members).

I happen to make a lot of recordings of live performances, with written
permission of the performing artists. This NEVER gives me the right to
release those performances, or even distribute them in any way privately,
without obtaining further permission allowing me to do that. EVEN if I pay
copyright fees to the composers of the tunes.

The right to record and the right to release are two different things.
And for very good reason.

[Jim Gilliland]

Ian Bell wrote:
>
> But to clarify, that recording is his. No one can do anything with that
> recording without his permission. He does not own the songs (unless he
> alone wrote them). However, as he owns the recording, provided he pays the
> appropriate copyrights, he can publish/release it.

That's not exactly true. For published songs, yes, he can simply pay
the mechanical royalties and that will take care of the copyright
holders of the compositions. But there are no "mechanical royalties"
for the performance, he needs to work that out with the performers.

In short, he needs permission from the performers to release the
recording. He owns it, but he cannot release it without their permission.

Similarly, they can't release it without his permission.

[Mike Rivers]

frenchy wrote:

> Well, I have been in several bands in my career and historically, I
> like to record the shows that I play in (not all the time, but when I
> feel like it).... kinda like keeping the family scrapbook full of
> photos, but in audio form.

Nothing wrong with that, as long as you have permission from the band
to make the recordings. However unless there's some formal agreement,
usually the permission extends only to making the recording, and it's
implied that you can listen to the recording and give copies to the
band. But that's where it stops. On your side of the line, it doesn't
give ownership of the recording to the band either. So once the
intellectual property needs to changes hands - either from you to the
band (or another band member) who will do something with it, or from
you, in the form of a produced CD, to a paying customer, other
agreements must be made.

> To me, that makes me an archivist....

Well, more like a collector than an archivist. But that's a small
distinction.

> The question has recently come up as to who owns my "scrapbook".

Why, you do. You can listen to the music all you want. You can invite
friends over to listen. You can probalby even make a copy on CD and
bring it to a friend's house so you can listen to it together. But
just like a scrapbook of, for example, newspaper articles, you can't
publish copies of those articles in your scrapbook without securing
permission of the original publisher (who will, in turn, secure
permission from the author if he doesn't already have it). There are
some provisions in copyright law for publishing exerpts for the purpose
of reserch or example - you could, for instance, use fagments of the
songs IN SOME CIRCUMSTANCES if you were building a web page for the
band - but it would be hard to substantiate putting out a live CD of
your band without authorization and call it "examples" or "research."

> Indeed I am concerned about this now BEFORE I even think about
> releasing anything and before there are any problems whatsoever. I
> will always make all decisions with the band before I do anything
> commercial...but I want to be fair to them and to my efforts and to who
> owns what.

So why not discuss it with the band and see what they want to do? If
they want copies for their own scrapbooks, you wouldn't be out of line
to ask for a small fee to cover your labor in making the copies, but
the recordings are already there. The band gave you permission to do
that and didn't offer you any money (nor did you ask for any) so you
really have no right to insist on recovering your expenses for that
based on the desire of the band to have copies of what already exists.
I doubt that anyone would object to $5 per disk, but if you tried to
recover your $8,000 investment, they'd probably just say "forget it."

> ps-I have a similar question on the hundreds and hundreds of photos I
> take while on the road, because many of them end up being desireable by
> people, but alas, that is for a different newsgroup and a different
> thread (although it is certainly related).

I have a closet full of photos that I took at fold festivals in the
'60s and I've been told by someone in the know that they're mine and I
have a right to publish them as long as I have a release from the
subject. Since most of those people are dead now, there's not much
chance of that. The Archive of Folk Song at the Library of Congress (a
real archive) has copies of some of them, and anyone can go in there
and look at the copies - but they can't legally take a copy away.

[RD Jones]

frenchy wrote:

> Again I repeat that we are all on great terms and I intend to keep it
> that way. I am looking for a fair and written out agreement between
> all parties BEFORE the time comes to release material in a commercial
> capacity.

Barring your hiring of a lawyer, which I don't feel is
absolutely needed in your case, you might benefit
from reading a reference book like:

"The Music Business Handbook" by David Baskerville
"This Business of Music" by Krasilovsky and Shemel
"The Musician's Business & Legal Guide" by Mark Halloran
"The Art of Record Production" by Richard James Burgess.

There's also some info on the RIAA site that might help.

rd