2015/09/16 09:04:36
Moshkito
BobF
Don't forget that Fogerty got sued (and lost) in a case for plagiarizing his own work.



Not a fair example, though ... I think he was being punished for not going along with the rest of the team in CCR, and their incredible number of suits and lawsuits left and right for the stupidest things!
2015/09/16 09:37:18
bapu
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.
2015/09/16 10:38:00
streckfus
I think I should point out that I'm not trying to "rip off" my lead guitarist or anyone else in the band. I'm unclear about the legality of copying my previous work because others were involved in the recording, which is why I asked the question in the first place.
 
One thing to note: we as a group all agreed who should get writing credit for each song that was on the album.  One song in particular was the result of all of us just messing around, and as a group we refined it. A few of use contributed lyrics. We all contributed musically. We all agreed that for that particular song, all of us were going to receive writing credit/copyright. I would never attempt to re-record and release that song as my own, because it isn't mine. We all own the copyright, we all wrote it.
 
Likewise, while I made musical contributions to every song on the album, unless I was the one who wrote the lyrics/melody and presented it to the band, I did not receive writing credit. This is how we as a band decided to break down writing credit and who would own the rights to each individual song.
 
So, technically speaking, all of us wrote music on each song (the lead guitarist came up with the guitar solos on my tracks, I came up with a guitar solo on another person's song), but we as a group didn't feel those contributions were significant enough to warrant writing credit, so we broke it down according to who came up with the original idea and brought it to the band.
 
Here's a hypothetical scenario: let's say that, somehow, one of these songs got on a famous musician's radar, and they wanted to do a cover of it. Because I own the rights to the song, that person would need my permission to cover it, and I would still keep the copyright. That person would not need permission from anyone else in the band because they don't own the rights to the song.  What if that famous musician used a very similar (if not the same) drum pattern or guitar solo in his cover version? How would that be any different than me doing the same thing? The only difference is that I already have the rights to the song I'm looking to cover.
 
And yes, I may very well need to consult with an attorney on this stuff, but I wanted to reach out on this forum first because I figured someone would've run into similar situations before and would have some input. And there's definitely been plenty of that...a lot of different opinions on the matter. :)
2015/09/16 12:22:38
tlw
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.
2015/09/16 12:51:02
streckfus
tlw
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.



You said it better than I did. :)  But yes, that's what I was driving at.
 
So in that hypothetical example, I would be owed royalties because I own the copyright of the song they covered. 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.
 
So if I were to take the original recording off of that album and put it on my new album, that particular recording/performance is registered to the LLC, and I would need to pay royalties to the other three members of the band, and rightfully so.  But I want to redo those songs, partially because I want to use some different sounds/instrumentation, partially because I want to make some different mixing/mastering decisions so they "fit" better with the other songs on my new album, and yes, 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.
 
It would seem that I'd be in the clear if I were to use my existing lyrics and melody but put together a completely different arrangement (thereby not using same or similar drum, bass or lead guitar lines, all of which were performed by other members of the band), but I might run into trouble if I were to replicate those elements since they exist on the recording copyrighted by the LLC.
 
But there again, using the hypothetical example, if I wanted to cover "Sweet Emotion" for example, I would need to secure licensing, and royalties would need to be paid to the copyright holders (Steven Tyler and Tom Hamilton).  Because the other three band members aren't listed as authors of the song, royalties would not be distributed to them, right?  Or would they go to the record label or whomever has the rights for the original recording, and not the actual songwriters?
 
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.
2015/09/16 13:05:03
bapu
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. 
 
2015/09/16 13:29:08
streckfus
bapu
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. 
 




Yep, unfortunately some trust issues popped up which is why I'm looking into it further before just going ahead and redoing a couple of songs I contributed to the album.
 
And your opinion on the matter is exactly what I thought going into it...I figure I should be able to do whatever I want with my own songs, just so long as I'm not doing anything with our band's recordings of those songs...but then again, that's the answer I want to hear, of course. :)
2015/09/16 19:24:01
slartabartfast
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. 
2015/09/16 19:54:17
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. 
2015/09/16 21:33:56
streckfus
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? :)
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