More understanding required about who owns masters and copyright

If anyone could provide so more insight this would be great:

I am a songwriter who has words and melody which is words and music.  I want a music producer to create music in his studio.

QUESTION
- is he apart of my copyright that I have already sent in?
- his music is copywritten, how does he get his music in royalties, do we split 50/50 on publishing? 
- Do we enter into another copyright form.  Do I own his music and or the multi-track master.
- If my title is "Start" and his title of music is "Get down with the groove #1" How is this done where as he gets royalties or paid. Do he gets money from the CD sales? Are we both owners of the sound recording? Do I pay additional money for the master. 

Thanks in advance for helping me out

What I know is this. If you composed the music and lyrics of your song, you are the rightful owner of the song. What you want to do now is go the people who can arrange and produce the track for you.

If you want to make sure everything is clear, make a contract. A simple contract won't hurt. State in the contract how would you like your royalties to be split. It can be 50/50,70/30 or it could be 80/20. In my experience most people wants the 50/50 split but that's Ok if your in a collaboration. But in your case it is better to have it 80/20 because the way I see it is that you have done all the work.   

Are we both owners of the sound recording? Do I pay additional money for the master. 

Unless you buy the master recording from the studio, they own it. You still own the intellectual copyright, but the mechanical copyright is theirs until you purchase it from them.

Good points all.  To clarify Steve's point, most people misunderstand that there are two copyrights in effect when a recording is published: that for the source music, and that of the recorded performance.  That's why you'll see the c-in-a-circle (intellectual property) right next to a p-in-a-circle (recorded performance) in copyright listings.  [Please!  No jokes about peeing in a circle!]  Where the line gets blurred is the difference between derivative work (someone other than the composer arranges, alters, or orchestrates the song), which always belongs to the original composer as an extension of the source intellectual property, and performance, where improvisatory and interpretive elements may result in a slightly unique approach to the piece but not to an extent where it's a new setting.

For most songwriters whose forte is not performance, you're usually going to have to accept that a producer/arranger/performer must dress up your work.  That's the wierd thing: they may add layers of instrumentation and sound that you'd never have thought of, and that arranging belongs to you.  But because it was generated as a recording, the means to hear it belongs to them.  In short, nobody legally is supposed to do anything without the cooperation of the other, generally represented by the payment of mechanical licenses and arranging-for-hire fees.  Be aware that mechanical licenses pertain to the intellectual property of the composition, and the arranger can't proceed without paying fees to you (in the USA that is a set rate, I don't know about other countries); the amount the songwriter would owe the recording producer/arranger is completely negotiable.  Because of that, diapason's advice as far as splits and getting it in writing is spot on.

I was just looking for a link to help provide an authoritative reference, but it's lost or healed up.

there are two copyrights in effect when a recording is published: that for the source music, and that of the recorded performance

I thought the performance and recording were independent copyrights - for instance, a recordist doesn't have an automatic right to record a performance without permission, as that would violate the performers' copyright (I have seen this contradicted, though); though this is the only point at which separation is meaningful, I guess.

Where the line gets blurred is the difference between derivative work (someone other than the composer arranges, alters, or orchestrates the song), which always belongs to the original composer as an extension of the source intellectual property

But what about editing?  Surely derivative by its nature, but Hyperion can tell you about the copyright aspects!

Paul

I thought the performance and recording were independent copyrights

Paul, you raise a good point for which I am unprepared.  I've no idea what the extent or letter of the law does with that.  You well could be right and there are in essence three copyrights, or two parts of the non-notated aspect.  But we are both recognizing that the way it is carried out is to combine the performance and recording -- certainly that's how the US Copyright office has us do it by affixing the (c) and (p) symbols.  Artists' rights are addressed somewhere in the mess, to be sure.

RE Hyperion -- I'm not familliar with the situation to which you're referring, Paul, but I can just imagine!  Just in case there are others who are uniniated in this regard, be aware that to edit public domain sources -- e.g. Beethoven sonatas, and really, anything at this point published before 1923 -- is to create a "derivative work." Copyright may be affixed to any derivative work, not to the source information, but to the critical edition additions.  True also of modern scholarship on ancient documents, whether Gilgamesh, Plato, or the Bible, so that the scholarship is protected and can be used for profit.

The Hyperion case.  They naively tried to argue that an Urtext edition did not define an original musical work; losing the case came close to ruining the company.

Paul

There was nothing in the 1988 Act or in the general principles of copyright law emerging from the cases to support the restrictive approach advocated by Hyperion to the definition of a musical work.

But perhaps there should be...

I have to say that I agreed with Hyperion about this (FWIW!). It's not that the judge and H. of L. got it wrong - I'm not saying that. In this case, because there was/is no acceptable definition of music, it's the law that's wrong, or at best, inadequate.

And anyway, the originator of the work should be the only copyright owner of the work itself. If anything more than 50% (say) of that original work remains after editing, then no further copyright period should be entertained. Otherwise we get perpetual copyright - which makes something of a mockery of the 'copy' part of the word, I'd say. If the man on the Clapham Omnibus says it's the same work, then to all intents and purposes, it is. End of argument...

Only my POV though - I'm sure that music editors would disagree strongly!

It really is hard, though.  The editor did not create a new work, but he did establish the likely original text from possibly unclear originals (I don't know their state in this instance), and thus enabled practical performing materials to be made.  He put time, effort and skill into the job, and the recording could not perhaps have been made without that effort, or the equivalent effort of someone else, and this deserves to be repaid in some manner.

What I do not in any way agree with is the level of damages assessed.  The edition I have made of a version of a work by Haydn* has netted me the grand total of about €500 in the fifteen years since it was published.  Even if a well-known and respected editor gets ten times as much as me (unlikely actually, as it's mainly a %age of sales), the damages assessed in this case were utterly disproportionate - beyond even "punitive" in my view.

However, my view on copyright as a whole is that it should be limited to something like 25 years, or ten years after death, whichever is the shorter, and that it should not be transferable.  It should never have become a gravy-train for agents and relatives.  I don't suppose the world's legislators are listening to me, though.

Paul

* I did this to enable a performance, as no-one else had published such an edition - the idea of getting it published came later.  The work had once been recorded, but neither the record company nor the conductor saw fit even to reply to my request to hire their materials; in the end, I discovered that their unpublished edition has serious flaws (errors of judgement, perhaps) - as does the other "edition" I have seen published since (incompetence in that case).

It really is hard, though.  The editor did not create a new work, but he did establish the likely original text from possibly unclear originals (I don't know their state in this instance), and thus enabled practical performing materials to be made.  He put time, effort and skill into the job, and the recording could not perhaps have been made without that effort, or the equivalent effort of someone else, and this deserves to be repaid in some manner.

Hmmm... Was he commissioned? If he was, then whoever commissioned him should have paid him for the work. If, as seems likely, there is more than one edition available then the chances of him having made substantial alterations seems rather less likely, I would have thought.

In this case, it doesn't seem to be a definition of 'music' that's required but some sort of independent judgement of the amount of effort expended relative to the original inspiration - and a change in the law.

I'm not suggesting that editors get no remuneration - just appropriate remuneration.

An example: I edit books some of the time. In some cases (one in particular springs to mind) I end up substantially rewriting parts of them. Do I get royalties? No. I get paid a fixed fee for what I do, and in the particular instance I just mentioned I didn't even get a credit - to save a lot of embarrassment to the original author. Do I think that's fair? Yes. I did a job of work, and got paid for it. I used the original framework of the piece, and made substantial corrections, but I didn't really alter its conceptual whole - so in a very real sense I don't think that I could claim that it was an original work, or that I have a copyright claim on it. And I don't think that the music editing case is conceptually any different.

Incidentally I edited the thread title to make it easier on the search engines who scour the site. And I'm not claiming copyright on that either!

[really want to know]

I play in the ASCAP realm.

When you enter any work into the ACE database, you specify all these things.

There's an automatic 50/50 split between writer and performer in terms of royalties...but you CAN be both people.  So in my world it's simple.  I wrote the music and/or lyrics, so I own the copyright.  If I hired a vocalist, I cut him or her in on the performance royalties...but they have no claim of copyright/ownership to the material.  This is why, for example, artists find themselves without control of their own material. 

On a larger scale, normally whoever PAID for the production is most likely to actually own the material legally.  A record label, for example, would own the masters for your average recording artist(s)...they consider it equity.  So Kelly Clarkson has no standing to lend you the master, because she doesn't own it.  She couldn't go and make a copy of the vocal tracks and send them to you, for example.  But more importantly, she couldn't give you permission to use it (even if she thought she could).

Here's a peek at how this works.  I do a lot of remixing.  To do this, I need to acquire parts from the original material.  Generally, I request which stems or parts I want from the A&R person who acts as the middle-man.  Before I get the material, there are contracts.  Usually that's when you waive ownership (but not necessarily royalties).  So, once I finish a remix and deliver it, the label still owns it.  And while those parts (vocal tracks, etc) are in my possession, they're still the PROPERTY of the record label.  (Recently, this has changed some, as labels have become more lax.  It's common now to have points in a contract to have some control over the material you produce...like remixes.  It's easy to negotiate a point that would allow you to post it on MySpace or even sell it on BeatPort.  You'd probably pay for it, a separate license altogether, but you still don't OWN it.)

The copyright question is, quite honestly, a fuh-REAKING mess in this country.  The law hasn't caught up to reality, so it depends on the court.  It can break down several ways.  The copyright on lyrics could fall to one person while the copyright on music falls to another.

Even us music editors and pro audio people don't even try and meddle in figuring this out.  If you really want to know, you need an intellectual property attorney to not only do the leg work, but interpret the state and distributed copyright/ownership of the material in question.

Blair, the 50/50 split between writer and performer doesn't make sense if you're referrring to the 9c mechanical license fee.  Please elaborate!

But in general, this is REALLY helpful, and thank you for adding so much great information to this discussion.

Blair, the 50/50 split between writer and performer doesn't make sense if you're referrring to the 9c mechanical license fee.  Please elaborate!

Sorry, I just meant how that how ASCAP splits things up for royalties.  You can be both people, but that's how it's logged.

The writer(s) may be separate from the performer(s)...and you can even sub-divide from there.

Thanks for the clarification.  OK, so that brings up yet ANOTHER level of royalties and agreement... public performance.  So after the whole ownership issue is settled and you've figured out how to split up your 9.1-cent mechanical license fee (per track per copy) for getting the recording made and into people's hands, then there's the ASCAP / BMI performance deal where another whole set of rules apply when the venue is public or commercial.

With all these ways to collect money, it's sort of amazing how hard it is to make a living doing it, isn't it?

I can only speak for myself on this, but even after "doing it" for years, I still find it all very confusing.

The copyright law in this country is so broken that an intellectual property attorney is almost a necessity for even a moderately serious producer/composer/performer. 

They're the only ones I know who can really break down what all these intricacies actually mean in the "real world".

It's all way over my head.  DELEGATE.