Music Law

This script discusses the law as it applies to song writing, performing and recording music. In particular, it discusses the ownership of music and lyrics, getting paid for performances, the legal relationship among band members, contract relations with managers and agents, and dealing with agreements offered to you by recording companies and others. This script will be of particular interest to independent, non-union musicians who play in a group or band and hope one day to perform at a large event and be offered a recording contract.

Do songwriters and musicians have the right of “copyright”?

Yes. When a song is created, copyrights arise immediately for the music, the lyrics and the combination of music and lyrics. The owner of the copyright may be the person who creates the particular song (musician or lyricist) or it may be another person who has made a contract with the musician or lyricist (such as a publisher or recording company).

Before a song is recorded, it’s generally known as a composition. Once it’s recorded, a separate (but interdependent) copyright applies to the recording.

Copyright owners (in some cases, the musicians and songwriters, but often the publishers and recording companies) have the right to control copying and distributing their compositions and recordings. This means it is generally illegal to copy songs (and sheet music and song lyrics) without permission of the copyright holder.

But there are some exceptions. For example, it’s not an infringement of the copyright to reproduce a song for private purposes if the original copy of the song was legally bought. It’s also not a copyright infringement to make a backup copy or to reproduce the work for the purposes of criticism or review. The Copyright Act has strict conditions for these exceptions though, so you need to be very careful when considering using or copying music, lyrics or other works for which you don’t hold the copyright.

If you play someone else’s music, do you have to pay a “royalty”?

To publicly play or perform music that’s been created or recorded by another songwriter or musician, you, your label or the venue are legally obligated to pay a fee or royalty. So, if you perform cover songs with a group in public, you may be surprised to find a musicians’ collective asking to collect royalty payments from you or the venue. You also have to pay royalties if you record cover songs, whether you manufacture CD’s or simply sell the song over the Internet.

One collective is called the Society of Composers, Authors and Music Publishers of Canada (or SOCAN), found on the Internet at www.socan.ca. SOCAN is entitled to demand a play list and royalty fees for pieces performed, including CD’s played by disk jockeys in public places.

Another collective is the Canadian Musical Reproduction Rights Agency, found at www.cmrra.ca, which collects mechanical royalties for songwriters and publishing companies.

And another collective is Connect Music Licensing (formerly Audio-Visual Licensing Agency or AVLA), found at www.connectmusiclicensing.ca. They collect royalties for owners of master recordings, something that disc jockeys should pay special attention to.

Of course, these same laws concerning copyright and the payment of royalties protect you too if you write and record your own music. It’s recommended that you register with SOCAN, which collects licensing fees and royalties on behalf of member songwriters and musicians whenever their music is broadcast on the radio or TV or performed in public. (That’s done through the Canadian Intellectual Property Office, which be found at www.cipo.gc.ca.)

How do you get paid if you work independently on a single performance or call out basis?

If you work on a single performance as a back-up or are called to perform a jingle for a radio ad or work on some other call out gig, either live or recorded, you’re normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance and generally aren’t entitled to any further payment (there are exceptions, however, for example, if you’re part of the musician’s union). If you’re satisfied with these arrangements, you may not need a written agreement. It’s usually a good idea, though, to ensure you’re paid what you expect when you expect it, and to ensure you (and the band leader) are aware of any other requirements (such as scheduling, equipment rentals or wardrobe).

What about further payment beyond the day of the performance?

These are called royalties. Royalties are further payments if your performance is recorded or taped and the recording is later used on TV or radio or in some other commercial way. If you’re looking for royalties, make sure you get a proper written contract.

When can you ask for song writing credit?

If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want co-writing credit for your contribution. If you feel you’re entitled to a co-writing credit for your contribution, you should ask for song writing credit at the time the music is written or recorded. The agreement must be in writing and properly reflect what you are getting credit for.

What is the legal relationship among group members?

Most of the time, a group works together with the common goal of earning money, and they make decisions in a co-operative way. Legally, they may be deemed to be a partnership. The arrangement among members should be made in writing by all members sitting down together, setting out the rights and responsibilities of each, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so make sure everyone understands the agreement.

Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a band leader and is legally considered a proprietor. The hired musicians are employees only. They have no ownership interest in the group, unless a different agreement has been negotiated and put in writing.

A group can also consider carrying on business as an incorporated company. The group may choose to do this if their earnings are significant or if they are signed to publishing or recording deals. Individual members of the group may also consider incorporating their own companies (often referred to as “loan out” companies), which can offer certain tax benefits if the musician’s earnings are significant.

What about the name of the band?

It’s important as a group becomes popular to ensure that another group isn’t using your group name. To properly protect your band name, you need to consider registering it as a trademark, because other registration methods, such as Internet sites, will not protect you properly. Refer to script 231 on “Patents, Industrial Designs, Trademarks and Copyright” for more information on this.

Who in the band gets credit for original music?

It’s important to discuss writing credits for original music and understand each other as to who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all. Sometimes the co-writing credits involve persons outside of the band members, and those people need to be acknowledged.

How do you protect your band’s copyright in your music?

Since copyrights arise immediately on the creation of the work, evidence of the time of that creation can be critical if you have a copyright dispute. You may also need to show that you (or your band) actually created the work (song) in question.

Formally registering the work with Industry Canada (see www.cipo.gc.ca) is one, very powerful way to prove that you created a work at a given time, but it’s not the only way.

If you keep notes, communications (such as email messages) and other material (such as song and lyric versions) relating to the work, those too can be valuable evidence in a copyright dispute. There are a number of inexpensive online storage tools that can help (check out secure cloud storage).

Also, if you take the time to document who wrote the song (including the date and the percentage of ownership to each band member) and have everyone sign off, that too can be good evidence of the copyright.

It’s wrong to believe that copyright can be fully protected only by mailing the original music, lyrics and recording to yourself by registered mail. While this may help to verify the date the work was created, it doesn’t in itself connect the creation to the creator. If you choose to do this, make sure you include inside the envelope a signed statement setting out who created the songs and when, and also who created the recording and when. You can also consider emailing a copy of the songs to all songwriters and performers, along with a summary of who created them.

If you plan on formally registering your song, you should note that Industry Canada doesn’t accept copies of single physical recordings, but the U.S. Copyright Office does. See www.copyright.gov. Canadian albums that go into general release are, however, registered at the National Library of Canada by the publisher. See www.collectionscanada.ca.

How do you distribute and market your recordings?

Once the musical work is recorded, arrangements need to be made for distribution (via CD and online), marketing and appearances in support of the recording. This is the point where a group usually hires a manager and agent, and looks for deals with publishers and record companies. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and the length of time of the agreements. These should be put in writing and reviewed by a lawyer.

When does a record company get involved?

If the group is successful and creates sufficient buzz, a record company may become interested. Deals offered by record companies tend to be lengthy and very technical. All agreements must be in writing and must be reviewed by the group’s manager and lawyer.

Where can you find more information?

• A good resource is “Musicians and the Law in Canada” by Paul Sanderson. The book is available at most libraries and is published by Carswell.
• Another good book is “All You Need to Know About the Music Business” by Donald S. Passman.
• [www.MusicBC.org] has many resources for musicians, including seminars, a library and technical help. Initial membership is free.
• Also refer to Dial-A-Law scripts 266 on “Forming a Partnership”, 267 on “Forming a Private Company” and 231 on “Patents, Industrial Designs, Trademarks and Copyright”.

[updated April 2014]

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