February/March 2016

by David McLaughlin

The Lawful Truth: Recording Release Agreements

by David McLaughlin

The Lawful Truth: Recording Release Agreements

Recording Release Agreements are incredibly important documents as they clarify just what rights all the parties involved in making a particular recording are to retain. If some parties are to waive certain rights in relation to the newly created recordings, then to what extent and on what conditions. Despite the significant benefits that these agreements can provide they are unfortunately often one of the most overlooked and misunderstood agreements in the music industry.

Anyone who plays, sings, programmes, DJs or in any other way performs on a recording should be required to sign a Recording Release Agreement. It’s only when everyone involved in making a particular recording is included that these agreements are truly at their most effective.

Recording Release Agreements will put beyond doubt the extent of any one person’s rights in the recordings and related musical compositions included on those recordings. By setting down precisely what the parties’ intentions are at the earliest stage possible these agreements serve to alert the parties to any honest misconceptions between themselves – which can then hopefully be resolved before progressing any further. People’s memories can get ‘fuzzy’ over time. Having the deal between all parties involved in the recording clearly documented means you don’t have to rely on memory as to what was agreed if any dispute arises later.

The record labels, or digital and physical distributors who you may want to have release your music, will not only require you to guarantee that you control all rights in the recordings, but in some cases will also want you to guarantee that written Recording Release Agreements have actually been executed by all relevant parties. As many people will tell you, it’s much easier to get this kind of documentation sorted upfront, at the time the recordings are made, when everyone is easily contacted and available, rather than – with your planned release date in jeopardy – madly rushing around trying to sort it out later when people may be working on other projects or in other countries.

When it comes to the actual detail of any Recording Release Agreement there are a number of important issues to be aware of. Firstly make sure the full legal names of the musicians in question are used, and for even greater certainty include current residential addresses.

The recordings that are the subject of the agreement should also be very precisely defined. Although this may once again sound like common sense, unless the recordings are clearly specified by name or reference to the period of time in which the actual recording occurred, it may become unclear down the line exactly which recordings each of the parties intended the agreement to apply to.

What the musicians are to be paid for their contribution to the recording and for the rights they are giving up, or that will be limited under the Recording Release Agreement, must also be clearly stated. For any agreement to be legally binding there has to be some kind of value going both ways. In other words for the Recording Releases Agreement to be able to be relied upon as truly legally binding there has to be some kind of clear payment to reward the musician for the services and rights they have provided in the recording process.

From a pure legal perspective Recording Release Agreements need to very clearly set out who has copyright ownership and control in relation to the recordings. From a copyright perspective it should also be clarified what the expectation is in respect of any contribution a musician may make as part of the recording process to the copyright of the actual song that is being recorded. After all, if someone helps to rewrite or re-arrange a song in the studio, they may have an arguable claim to being a songwriter in the new song that is created. The danger with this is that as a copyright holder, this person’s approval is required for any use of the song going forward. Consequently if this was never the intention, the Recording Release Agreement can be used to clarify whether any copyright interest will remain with the musician at all or at least the general consents and approvals that the musician will give with regard to use of the song moving forward.

Although dealing with copyright ownership related issues is perhaps the most pressing legal concern in a Recording Release Agreement, there are also other legal issues that should be addressed, such as clearing any necessary ‘performers’ rights’ as well providing for reasonable limits on the ‘moral rights’ that a musician can enforce.

In addition to the legal issues, there may be other practical issues that are also very worthwhile covering in a Recording Release Agreement. For example, getting clear approval to use the musician’s name, image and biography in relation to the future promotion and marketing of the recordings.

David McLaughlin is a specialist music lawyer with Auckland law firm McLaughlin Law

Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.