[Harp-L] Plagairism

["Walter Joyce" <wtjoyce45@xxxxxxxxxxx>]

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 
fashion.

(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 
copyright.

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 
researched.

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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