Copyright Question

Arrangements (per se) are not part of the song ownership rights. Never have been never will. You own the lyric/melody.
 
No one today has to ask Carol Kaye for permission to use a bass line of hers that she put on any recording, regardless of who wrote it. You do not need to ask Ringo if you can use his drum pattern.
 
After all that said, your former band members could conceivably make a fuss (as is popular today) saying that what they played was integral to the song, but your copyright would most likely win the case as the backing arrangements (again)  were not given "credit" in the song copyright.
 
JMO.

bapu
Arrangements (per se) are not part of the song ownership rights. Never have been never will. You own the lyric/melody.
 
No one today has to ask Carol Kaye for permission to use a bass line of hers that she put on any recording, regardless of who wrote it. You do not need to ask Ringo if you can use his drum pattern.
 
After all that said, your former band members could conceivably make a fuss (as is popular today) saying that what they played was integral to the song, but your copyright would most likely win the case as the backing arrangements (again)  were not given "credit" in the song copyright.
 
JMO.

Arrangements and other derivative works are protected by their own copyright. If I make an arrangement of Beautiful Dreamer (1864) that is clearly a song in the public domain, my original 2015 piano part is under a copyright that will not expire until 75 years after my death. My tambourine part is equally protected, although it might be difficult to prove that it is sufficiently distinct from a gazillion other similar arrangements so that your tambourine part that sounds like it resulted from illegal copying. 
 
You are correct that a derivative work does not give one any rights to the original work from which it is derived, but that only means that:
1. the creator of a derivative work must clear/license the copyright owned by the original work's author
2. the original work's author has no rights in the parts of the derivative work that he did not create himself
3. derivative works have at least two separate authors who must be dealt with, or at least two separate copyrights in the case in which the original author also creates the derivatie
 
 

Thanks for the feedback.  To clarify a bit:
 
I'm registered with the US Copyright office as the sole author of the two songs in question, and it was not registered as a work for hire.
 
On the physical CD itself, the album copyright shows the dissolved LLC.
 
ASCAP lists me as the writer of the songs, and the dissolved LCC as the Publisher/Administrator, which as far as I can tell just means that were royalties earned for the music on our album, the LLC would collect the royalties and distribute them to the band (the four band members were the owners/operators of the LLC), 25% each (as designated by our LLC articles).
 
Because I liked what the lead guitarist did, I would make an attempt to replicate his solos if I'm physically capable of doing so.  So according to the publishing rights (ASCAP) the lead guitar player is entitled to a 25% share of any royalties earned from that particular recording. But that's just for ASCAP/publishing and not the actual copyright ownership, and wouldn't necessarily apply to a new recording of the material.
 
It's a bit of a tricky situation from a moral standpoint. Technically I didn't write the guitar solo, drum part, etc. but I did steer the arrangement and "approve" what the other guys came up with, which is why I registered as the sole author for the copyright. In much the same way, I came up with a lead guitar part for a song written by another band member, and I did not claim any copyright authorship on that particular song.
 
So essentially - as is probably almost always the case - the entire band made unique contributions to each song/recording, but the person/persons who came up with the lyrics, melody, basic song structure were listed as authors. The person/people who brought the song to the table got the copyright authorship, regardless of what suggestions/improvisations other people brought to the table while fleshing out the song.
 
We had all agreed that those of us who wrote the songs would retain the rights to the songs, but if our album sold, we'd all get an equal cut. So essentially we did it that way specifically for this reason: so that each author could do whatever they wanted with the song, but if our recording/performance of the song as a group ever went anywhere, we'd all stand to benefit. 

Collaboration is a sticky issue. It is standard practice in the literature publishing business for the publishing house to assign an "editor" to ready a manuscript for publication. Almost invariably that editor does a great deal more than just make sure the grammar is correct, and in some famous cases, the authors have acknowledged that without the editor suggesting massive revisions in great detail the book would not have turned out at all like it did. Such "editorial" assistance does not result in the editor claiming any moral or legal ownership of the work. Admittedly the editor's work may be considered work for hire by the publisher who benefits financially from the publication, but the publisher does not claim ownership in the author's copyright in this event either.
 
So if your contribution to the guitarist's part consisted of just making suggestions, and you did not have a clear (preferably written) agreement that you were a co-author, and no one registered the copyright to the notes of the music (not the recording of sound of the actual performance in the studio) that he put together is assumed to belong to the guitarist. If your performance copies his guitar part so that it sounds like his guitar part to any significant degree, you are infringing his copyright. If you think that your suggestions were so material and specific to the composition of his part that you should be considered the sole author of the guitar part, then you are going to have to prove it or get a license from him to do a cover of his part. It appears that at best you are a co-author, and all you can do by claiming that is to reduce the fee you have to pay for the use of his (his and your?) composition by one half. You can compose a new arrangement that does not copy the parts in which any other band member can be considered an author without any permission from anyone so long as it has not been exclusively licensed to someone else.
 
The issue with ASCAP/performance rights only applies to a per play fee for the original recording. If your agreement with the LLC was that you granted a non-exclusive license of your individual author's rights to the LLC for the purposes of a recording and that all revenue from author's rights (not recording rights) for anything recorded by the band was to be divided giving you 25%, then it looks like you agreed to share your money with the band in consideration of their assistance with making the recording. In that case if  the only public play that album gets is of a single song for which you are the sole author, the other band members will share in the income from your composition rights but will not have any say in how you use your copyright. You keep the composition copyright but share the income that derives from it. If your agreement with the LLC licensed the composition rights to the LLC exclusively or gave the band a share or ownership in the composition rights of anything the band recorded then you may have given the composition rights of your songs to the LLC. Then depending on the wording of the agreement, you may have to pay the LLC just to use your own song in your own arrangement in your new original recording.
 
There is a fine distinction between a "work for hire" in which the actual author never acquires the copyright, which goes to his employer instead, and an assignment or transfer of copyright in which the author exclusively and unconditionally transfers his rights to someone else. In neither case is the author permitted to use his own work in the future without the permission of the new owner. Assignment allows the author to revoke in 35 years and regain his copyright. An exclusive license gives the licensee sole use of the licensed right under the terms of the license, and prevents anyone else (sometimes including the author himself) to exercise those rights. The author is always forbidden to sell to anyone else the exclusive license he has already sold, by the nature of the licensing contract. 

streckfus

slartabartfast
 
So if your contribution to the guitarist's part consisted of just making suggestions, and you did not have a clear (preferably written) agreement that you were a co-author, and no one registered the copyright to the notes of the music (not the recording of sound of the actual performance in the studio) that he put together is assumed to belong to the guitarist. If your performance copies his guitar part so that it sounds like his guitar part to any significant degree, you are infringing his copyright. 
 

I don't understand.  I have sole copyright ownership of the song in question.  How would I be infringing upon his copyright if mine is the only one registered as the copyright owner? Are you referring to his rights as a performer on the sound recording of the album, to which the dissolved LLC has publishing rights?
 
 

Whoaa...
One of us clearly does not understand.
 
You own the composition rights to the original song. That part of the original song that could be notated as the top line i.e. the melody, and any lyrics that you wrote as the creator would be yours. The guitarist could not perform your song without your permission. But I think you said that you did not write the exact actual notes that the guitarist performed in the arrangement that was recorded. Absent some sort of agreement in which the guitarist was working for you personally (not the band) under a contract which included the exact phrase "work for hire," you do not own the composition rights to the guitar part that was recorded with the band. If you were technically proficient you could play just the guitar part, without singing, and without any other instruments so it can be distinguished as a separate composition. It may be based on your melody, it may even use the same basic topline and be easily recognized as a version of your song when played by itself. Nonetheless you did not write it. It is a "derivative work"  based on your song, just as my piano part in the hypothetical above is a derivative work of Stephen Foster's song. It obtained its own copyright as soon as it was recorded, and the guitarist who invented it owns the guitar part composition copyright, the exact same right for his creation as the one that you registered at the copyright office for yours. The fact that no one registered the copyright to the guitar part does not mean that it is not copyrighted. Registration does not create copyright, it just makes enforcement easier. A creative work is protected by copyright as soon as it is fixed in tangible form. If I were to write you an email, I would own the copyright to the content of that email. If I doodle on a napkin, I own the copyright to that drawing. The copyright office does not grant a copyright, it just registers it.
 
This is not just a US copyright law issue, any country subscribing to the Berne Convention on copyright acknowledges that:
"Article 5 (2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment
and such exercise shall be independent of the existence of protection in the country of origin of the work." In other words countries within the convention cannot require that a copyright be registered, that any copyright mark or notice be attached etc. before they will recognize the author's copyright. Nor can they require that the work be created in a particular country in order to qualify for copyright protection. What they can do is to set requirements that must be met in order to enforce the natural copyright that vests as soon as the creation is fixed in some tangible form (notated, recorded etc.), In the US there is a requirement that a copyright must be registered before a Federal court will hear a case claiming that it has been infringed, but the existence of that copyright is not dependent on registration. And the creator or owner of the work can register the copyright at any time prior to commencing an infringement lawsuit. Some countries, like Australia have no method in law to register a copyright at all. 

This is likely a poor example since The Beatles more than likely had a few more attorneys than I do and we all know that regardless of who actually wrote the song, Lennon and McCartney shared writing credit for all of their Beatles songs, but just from a conceptual standpoint, you're stating that:
 
If Paul McCartney were to re-record "Let It Be" and play all of the instruments himself, he would not be allowed to perform and record the exact same drum part or guitar solo from the original recording without first getting permission from Ringo & George, even though Lennon/McCartney are the authors of the song?  Or, that the only way he could do so is if he were able to prove via score/notation that he'd composed the drum/lead guitar parts in their entirety and that Ringo/George were only performing the exact notes and phrasings that Paul had written down and presented to them?
 
Another example: Tom Hamilton showed the Aerosmith boys a cool riff he'd been working on, Steven Tyler came up with some vocals, and some time later, they gave us "Sweet Emotion".  Hamilton and Tyler are credited as authors of that song, but I doubt they actually wrote Joe Perry's rocking guitar solo.  And that killer guitar riff, did Brad Whitford or Joe Perry have any input on that, or was every single element of that song conceived entirely by Tyler and Hamilton? It seems more likely that because of Hamilton's bass riff and Tyler's lyrics/vocals, they're the two that drove the creative process and therefore were listed as the song's writers, but the other three came up with material on their own to support Tyler & Hamilton's original idea.
 
It's not my intent to be confrontational, but your vantage point seems to be that in order for a songwriter to be the true author of a song, he/she must have composed each and every element of the song, regardless of what the copyright says. And maybe what you're saying is right. If I knew the answer, I certainly wouldn't have asked the question in the first place. :)
 
So no, I most certainly did not write the drum, bass and lead guitar parts for the songs I'm looking to record.  But because I wrote the lyrics/melody and brought it to the band, and because I directed the progress of the song and gave a thumbs up or thumbs down to whatever parts the others were contributing, it was agreed that I was the songwriter/author. Just like how I made musical contributions to other songs on the album that I didn't write, and as such didn't include myself as the songwriter, even though I technically did come up with a guitar solo all on my own.  (But that solo never would've come to light if the other songwriters hadn't written the song to begin with.)

slartabartfast
... 
There are things that are just and things that are fair and then there are things that are legal. But ask yourself, if this thing that the guitarist created, at least in part, is something that you value enough to use in your new recording, is it not fair and just that he share in the value he helped to create? 
 ...

That applies to the old piece, not the new piece! Which will be a different experience, even though the "lead" will be similar/the same ... this is where the line in copyrights is very confused, and needs cleaning up.
 

Man, I have not read posts in here in a while and the subject line stuck out, so I started reading and now my head is spinning. The "note-for-note" thing stands out because there are a lot of recognized lawsuits for this ("Down Under," Vanilla Ice for "Under Pressure" (bass line), and even Sesame Street was sued for "Letter 'B'" ("Let It Be")). I definitely do not know the answers to any of the domains in question (they still baffle me actually), but is wise to get advice from a definitive source.
 
The flip side of my confusion is someone put together a video called "The Riff" (or some such) I saw a while ago that had footage of the identical riff in like 40 songs, and it made me wonder about "how far rights go" when someone can stake a claim on a handful of notes. I wish I could remember the name of that video since I haven't been able to find it since. I actually find myself shifting into a song when just screwing around because I happen to play 6 notes that take me there.

Don't forget that Fogerty got sued (and lost) in a case for plagiarizing his own work.

BobF
Don't forget that Fogerty got sued (and lost) in a case for plagiarizing his own work.

Urban myth as I see and remember it.
 
http://mentalfloss.com/article/27501/time-john-fogerty-was-sued-ripping-john-fogerty
 
In the original suit about the two songs, Fogerty won. Then he sought lawyers fees in a separate suit, which he lost. But, he went to The Supreme Court and then won the argument that he was due Lawyers fees.
 
He DID NOT lose the case involving the two songs which Zantz of Fantasy Records brought to trial.

Once a song has been commercially released (which includes being played over broadcast/streaming media) the only "permission" required to produce a cover version is the correct licensing.

While it may be diplomatic to ask the artist/publisher/composer for their permission, it's not a requirement. Paying the appropriate licence fee(s) and royalties however is.

streckfus
partially because things didn't end so well with everyone in the band and I don't want to deal with any of that again.

That could be the basis of aggravation by way of law suits if your new recording makes 1000's of $ or more. If it only makes 100's of $ the other members may not even care.
 
Follow the money.
 
Based on my gut "truthiness" I still contend you owe nothing to the band members if you re-record your copyrighted songs with identical arrangements and parts played note for note etc. You are not re-publishing the original recording, you are covering your rightfully owned song (lyrics & melody).
 
You have no right to willy-nilly resell any portion the original album, but you have the right to cover your own songs. JMO. 
 

Receiving writing credit for a song on an album liner or promotional material does not prove that the credited author actually wrote the song or even that he contributed to its authorship. It is common enough for a star who records a song to be credited as its author even if the piece is actually written by a ghost writer, or purchased from another artist with the explicit agreement that the real author will go along with the deception. In a work for hire the original copyright will go to the non-author as well as the fictitious "credit" or attribution. But work for hire has a couple of wrinkles. If the author is actually an employee, then the writing he does in the normal conduct of his employment never belongs to him. But if he is an independent contractor, in order for it to be a work for hire, it must not only be sold under a contract that says in writing that it is a "work for hire," but courts have also said that the creation of the work must actually begin after the signing of that contract. So if Beyonce wants to buy your song that you have already written, she cannot own the copyright (which you own as soon as it is fixed in tangible form) by just having you sign a contract to do that song as a work for hire after the fact. If she wants to buy the copyright, she needs to acknowledge that it is yours to sell, and have you sign an assignment or conveyance of your copyright to her. She can then register that conveyance and claim to own the copyright as a non-author. To actually claim to be the author when you are not on a copyright registration is fraudulent and may invalidate the copyright at a minimum regardless of whether the true author is willing to go along. It is not inconceivable for a ghost author to have the copyright registered in his name and someone else to claim authorship on the album cover, which after all is not a sworn legal document. 
 
In any event, it is imperative for you to distinguish between whether the band agreement of how the authors would be determined affects the author's rights. If the agreement was just that the band agrees that you will be considered the author for the purpose of giving you credit on the album cover, that does not have much legal force. If the agreement says that you will be considered the author for the purposes of distributing royalties received by the LLC, that affects how payment is divided (a contractual issue), but does not necessarily affect copyright ownership. If the agreement says that you as the author of the song, are permitted to copyright the song in your own person, that may not add much to the rights you already had as the author. The only reason the band would need to agree to permit you to register your copyright individually as the author is if they already owned part of it.
 
So the question is, did they own part of your song? They could own a part of it either by being co-authors of a joint work, or because somewhere in your band agreement the members agreed that the copyright of anything written by any band member was assigned or conveyed or transferred to the band or its LLC. If the agreement to let you register your song is worded in such a way that is is clear that the other band members were assigning their copyright ownership (if any) in your song to you, then your copyright is undisputed and undivided. If the copyright was ever assigned to the LLC, then lacking a clause that retained some rights to the author, the LLC becomes the owner of the copyright and you need its permission to use it in any way. In that case how would you get your copyright back from the LLC? The LLC would need to re-convey the copyright to you. The exact wording of how they permitted you to register the copyright of your song may be important here, in that it may or may not meet the legal requirements for an assignment. Or it may be that the wording of the band's agreement never assigns the individual author's copyrights to the the LLC, and the agreement to permit the individual author's to register their own copyright is superfluous and has no legal effect. 
 
Now none of this really addresses the issue of the ownership of the arrangement that was recorded on the band's album. The band could have agreed to let you copyright the song composition, meaning the basic melody and lyrics, without necessarily assigning their copyrights of individual parts of an arrangement of your song that was recorded on the album. You have been pretty clear that the guitar part on your song in the band's album was not entirely your sole invention, so the guitarist is probably either the sole author of his own work (possibly a derivative work of your song that he did with your authorization) or is a co-author of your joint work. So did he license your new intended use (could be an oral agreement, and not needed if you are a co-owner), or did he assign his copyright to you (must be in writing, and would prevent him from using the guitar part himself without your permission)?  As mentioned previously, Unless the wording of the band's agreements is so crystal clear as to be beyond question in interpretation, or if it is ambiguous that the people who signed the agreements will testify that their understanding of areas of ambiguity is the same, then you are going into the tall grass here.
 
If you are sure that your author's copyright in the original song has never been conveyed to any other entity in an assignment, or if it has that it has been re-assigned back to you, then you can do a new arrangement of your song without asking anyone. In that case, if you are sure there is no surviving obligation to share revenue from your song with the band or the LLC lurking in something you signed in the past, your new arrangement can be done without paying anyone else. If you use the arrangement or portions thereof that you are not the sole author of, then you may be obligated to get either the other author's permission or pay other authors or entities or both. 

slartabartfast

streckfus
...
So in my real-life example, whereby I own the copyright to four individual songs as the writer/author, technically I should be able to "cover" (re-record, mix & distribute) those songs without any trouble. The catch is that the sound recording (the entire album on which all four of these songs are featured)  - the performance and recording - of these songs is registered to the LLC of which our band used to co-manage/operate...
 
That's essentially the situation I'm in.  There are two copyright records for my music.  One for me as the songwriter/author, and one for the LLC for the recording/performance that's currently available to the public.

That is correct. There are two separate copyrights (the legal records or registrations are really irrelevant) protecting two completely different elements. The fact that the band owns the copyright to the recording means that I cannot make copies of the actual sounds captured on the recording without the band's permission. But that copyright alone does not prevent me from making different sounds with a different voice and band and arrangement that is clearly a copy of a song that is also found on the band's recording. If you are the author of one of the songs that the band recorded, then I will need your permission to make my version. By an act of law, I can force you to grant me that permission if the band ever released their album to the public. But aside from subjecting your author's copyright to compulsory licensing, the fact that the band released a recording is irrelevant to your author's copyright, as is the fact that they own the recording copyright. This is an important point if you decide to register your new album's copyright. You need to be careful that you are registering both copyrights if you are the author and producer/owner of the recording as well. 

Your feedback is certainly thorough and thought-out, and I'm appreciative of that.  Thanks for taking the time to give me your take on the situation. However, it seems as though we're talking in circles a bit.  On the one hand, much of what you've said suggests that I cannot do anything with my songs from my band's album without their permission. On the other hand, you also seem to validate my stance and suggest that I'm in the clear.  And perhaps I haven't been particularly clear and am just contributing to the confusion.
 
I'll try to be thorough and clear:

• In 2003, I and three others were in a band.  This band formed an LLC.
• As a band, we recorded and "released" (meaning it was available for purchase but didn't sell much of anything) an album with 10 songs.
  • I was the sole songwriter on 4 of those songs (Songs 1-4)
  • I was a co-author on 2 of those songs (Songs 5 & 6)
  • I was not an author/songwriter on any of the remaining 4 songs
  • Regardless of who wrote each individual song, each of us made musical contributions to the finished product, although we all agreed that we would not arbitrarily share authorship across the board
• Each band member/songwriter filled registered a copyright for the songs in which they contributed authorship.
  • Form PA (Performing Arts) - I registered as the sole author on Songs 1-4.  No co-authors or joint authorship, no work for hire, etc.
  • Form PA (Performing Arts) - I registered as a co-author/joint authorship on Songs 5 & 6.
  • The remaining Songs 7-10 were registered via Form PA by their respective songwriters/authors, but I was not an author on any of them.
• The album
  • The band's LLC registered a Form SR (Sound Recording) for the album itself
  • The album's liner notes designated individual songwriters for each song in accordance with our Form PA copyright registrations
• Band agreements
  • As a group, we agreed that each person (or persons if it was a joint venture) who brought material to the band (lyrics, melody, song structure, etc) would be designated as the songwriter/author, and that they'd keep their copyright for the songs they had written. (Again, we did not agree to joint-authorship across the board.)
  • Any proceeds from album sales would be split among the members of the band, 25% each.
• ASCAP
  • Each song was registered with ASCAP
    • Songs 1-4: I'm the sole writer / the LLC is the Publisher/Administrator
    • Songs 5&6: I'm a co-writer / the LLC is the Publisher/Administrator
    • Songs 7-10: I'm not a writer / the LLC is the Publisher/Administrator
• Beyond what's already been detailed, no other paperwork/legalities/agreements/licenses etc. have been filed or documented.
• Present Day
  • I want to re-record and mix Song 1 and Song 2 on a new album
    • I have registered (Form PA) a copyright as the sole author on both songs
    • The LLC registered (Form SR) a copyright for the album on which these songs appeared, and therefore owns a copyright for the existing recording of both songs
    • No samples, elements, copies, etc. of the existing recording itself would be used in the new recording
    • Musical components (parts) including drum patterns, bass lines and the guitar solos would be replicated - in whole or in part - in the new version of these songs
  • The new album would be copyrighted and being the only musician/performer on the new material, I would be the sole author
    • I'd either submit a Form SR for the album itself and designate that I was the sole author, or
    • I'd submit both a Form SR for the album AND Form PA for individual songs (and would likely need to list Songs 1 & 2 as derivative works because a copyright for those two songs already exists
    • There seems to be some disagreement on this from what I've read on the web: some state that if there is a sole author for the entire album, then a single Form SR will be sufficient for all copyright considerations; others state that PA forms need to be submitted for song authorship, and a separate SR needs to be submitted for the recordings of those songs.

slartabartfast


The fact that the band owns the copyright to the recording means that I cannot make copies of the actual sounds captured on the recording without the band's permission. But that copyright alone does not prevent me from making different sounds with a different voice and band and arrangement that is clearly a copy of a song that is also found on the band's recording. If you are the author of one of the songs that the band recorded, then I will need your permission to make my version. By an act of law, I can force you to grant me that permission if the band ever released their album to the public.  

 
So given the information I've detailed, if I've read your post correctly, aren't we both in agreement that

• I cannot make copies of the actual sounds on the existing recordings without the band's permission (which I will not be doing)
• In order to make my own version of a song that the band recorded, I would need the author's permission to do so.  So if I wanted to make my own version of a different author's song (say, Song 8) then I would first need the author of Song 8's permission.  But since I'm the author of Songs 1 & 2, which are the two songs I want to remake, I do not need permission from anyone other than myself.

Or are you saying that authorship is irrelevant, and that the SR (Sound Recording) copyright trumps the PA (Performing Arts) authorship, meaning that because the band (LLC) owns the copyright to the existing recording, all four band members are co-authors of every single song on the album, regardless of what's listed on the PA forms, and that any remakes of any songs on the album would require permission from all four of us?  If that's the case, then what's the point of authorship?
 
Again, not trying to be confrontational, just trying to understand your opinion.  So I guess the bottom line is this: in your opinion, can I re-record Song 1 and Song 2 - understanding that I alone will be performing all of the parts, and I will not be using samples or segments of the existing recordings in any way - without permission from the other three band members?
 
And also, how much wood could a woodchuck chuck if a woodchuck could chuck wood? :)