I am an attorney who has done some copyright work, so I look at the issue a
little differently than an artist might.
Whether the soloist on a recording is entitled to copyright protection
depends on how he/she is hired for the recording session. If he/she is hired
under a "work for hire" contract then there is no copyright protection
available, so long as he/she gets paid. Most session work is done in this
(Although, I have heard that in Nashville if another artist even walks into
the studio while you are recording then songwriting credit is automatically
shared on that song. I can't confirm this, but my friends who have been in
the industry for the last two decades shared that with me.)
I mention the pay issue because last year the great soul singer Betty Harris
was sampled on a Christine Aguillera song, and she sought royalties or a
licensing fee. The producer of the original recording, I believe it was Alan
Touissant (sp?) claimed she had dome the recording as a work for hire. Ms.
Harris countered that she was never paid under the contract, so the court
set aside the work for hire status and ruled that she still held the
As I understand it, Aguilerra's camp at that point offered her $100,000 for
the sampling. Rumor is that as of yet she has not been paid.
To actually prosecute for a copyright violation under the current statute
you need to have registered the material with the copyright office before
filing suit. The artist still has a "copy right" but in order to get into
the courthouse you need to register.
To collect your royalties you need to join a songwriters guild/union like
ASCAP or BMI.
Back to our soloist. If there is not a work for hire agreement in place
under which the artists received compensation (or consideration,in
legalese), the question of copyright remains open. Under the old
paradigm/thinking before the current uncertainty hit the music industry, the
accepted wisdom was that the money in music was in the copyright through the
royalties it generated and the licensing fees that are generated when the
work is used in other media. That was why the major labels required their
artists to share the royalties with the label under a songwriting agreement,
usually the best an artist could get was 50% of the royalties generated.
As Winslow pointed out, the most common solution is to share songwriting
credit, and the copyright that goes with it if the soloist will not perform
under a work for hire contract.
Bear in mind that any recording hypothetically creates 3 copyrights.
One for the songwriter, one for the producer/recording studio in the
recording itself, called the mechanical right, (usually the subject of a
licensing fee) and performance copyrights for any musicians or singers that
performed on the recording and has not signed a work for hire agreement. The
mechanical licensing fees are distributed through the Harry Fox Agency in
NYC, if I recall correctly.
I'm curious why the original poster mentioned plagiarism, as I thought that
term only applied to written works, not performances.
Perhaps if the soloist was not under a work for hire agreement and wrote a
transcription then filed it with the copyright office he could prosecute for
violation, but that is a hypothetical I haven't thought about much or
If you are interested in reading on the topic I recommend Koch on Music
Licensing. You can find it in any good law library or buy it. There is a CD
that comes with the book that contains all of the contract forms used by the
music industry. You can buy these (although maybe not the exact same
contracts) in a number of places online, but Koch's work is the bible for
lawyers working in the field.
The copyright website offers guidance on which forms to use to register your
work and what you need to include with your filing.
Sorry for the following disclaimer, but I'd be an idiot not to include after
all that I have written.
This post is not legal advice and is written without research and may
contain errors. It is not to be relied upon for making decisions in your
artistic endeavors and the legal consequences thereof. If you have a
copyright issue or are contemplating filing for copyright protection, you
need to contact an attorney licensed in your state. The material in this
post is offered for entertainment purposes only.
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