Found another article that may be of interest written by Galen Eagle Bull on 12-11-2006, an Attorney with a specialization in Entertainment Law and freelance writer.

My band recorded a self-funded EP. Recently, our drummer quit and is now telling us that we can’t use his drum tracks on the EP. What can we do?

I’ll give you the short answer and then explain. If your drummer was a co-writer on any of the songs, you can continue to use the songs as long as you share the profits with him as a co-author. Regarding the EP sound recording, you can still use his drum parts if you pay him a pro rata share of the proceeds. Or, you can go back into the studio and re-record his drum parts with a different drummer and as a result, you won’t owe the ex-drummer any proceeds from the sound recording.

This requires a discussion on copyright ownership. There are two copyrights when a band makes a recording. The first is in the sound recording and the second is in the underlying composition, i.e., words and music. Anyone who contributes to the sound recording can have a claim in the copyright, including back-up vocalists who are not band members. Anyone who contributes to the song writing can have a claim as a co-author in the composition. The sound recording will be discussed first.

Normally, the contributors to a sound recording are the band members and the producer, who manipulates the sound. These people are the copyright owners. The producer can waive claims to copyright by accepting an up-front flat fee in exchange for signing a work-for-hire agreement, or by accepting royalty points instead of copyright ownership. But, even if you bring in some friends for a handclap chorus, you have more copyright owners. A work for hire agreement or similar release would be appropriate in that case.

The scenario is different if your band is under contract with a label. In that case, the label is the copyright owner unless the contract says otherwise. The record company will own everything your band records during the term of the contract. But since your EP is self-funded, all band members are joint authors with equal copyright ownership. Joint authors can profit from the work as long as the other joint authors are given their share of proceeds. If you re-record the EP with a new drummer, it’s a new copyright with the new drummer being the new joint author in the sound recording - the possible solution I suggested above.

If your drummer contributed a little or a lot to the song writing, he is a joint author in the song copyright. The U.S. Copyright Act says that each joint author has an indivisible share in the copyright; copyright ownership cannot be divided into portions based on lyrical or musical contribution. Just like the sound recording copyright, your band will have to share proceeds from the songs with the drummer. This, however, does not mean the song proceeds have to be shared equally among writers.

Songwriters can deal with song proceeds in a collaboration agreement or a band partnership agreement. These agreements can set forth the percentages that each writer will receive. The proceeds can be divided according to who contributed to the melody, chord structure, lyrics or whatever is agreed upon. Example, melody writer gets 40% of the song proceeds. A band partnership agreement can be less specific and state that songwriting band members earn 60% and non-songwriting band members earn 40% or 0%. People familiar with the music industry know that the big money is in songwriting. Having the copyright issues set forth in an agreement will make it easier when band members leave.

The information in this column is for general information purposes only. It is not intended to provide advice regarding a specific legal situation. Legal advice can only be provided after consultation with a specific attorney.