Script 264 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses the law as it applies to song writing, performing and recording music. In particular, it discusses the ownership of music and lyrics, getting paid for performances, the legal relationship among band members, contract relations with managers and agents, and dealing with agreements offered to you by recording companies and others. This script will be of particular interest to independent, non-union musicians who play in a group or band and hope one day to perform at a large event and be offered a recording contract.

Do songwriters and musicians have the right of “copyright”?
Yes. In general, original songwriters and musicians have the right of copyright to their music and lyrics. In other words, they have the right to control copying of their work. What this means is that copying current recorded music isn’t legal, unless you have the publisher’s permission. You’re only legally permitted to make one back up copy for your own personal use. It is also not legal to copy sheet music and lyrics.

If you play someone else’s music, do you have to pay a “royalty”?
To play or perform music that’s been created or recorded by another songwriter or musician, you’re legally obligated to pay a fee or royalty. So, if you perform cover pieces with a group in public, you may be surprised to find a musicians’ collective asking to collect royalty payments from you.

One collective is called the Society of Composers, Authors and Music Publishers of Canada (or SOCAN), found on the Internet at www.socan.ca. SOCAN is entitled to demand a play list and royalty fees for pieces performed, including CD’s played by disk jockeys and pieces created from samplers. Likewise, the Canadian Musical Reproduction Rights Agency, found at www.cmrra.ca, collects publishing royalties for songwriters.

Of course, these same laws concerning copyright and the payment of royalties protect you too if you write and record your own music.

How do you get paid if you work independently on a single performance or call out basis?
If you work on a single performance as a back-up or are called to perform a jingle for a radio ad or work on some other call out gig, either live or recorded, you’re normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance and aren’t entitled to any further payment. If you’re satisfied with these arrangements, you generally don’t need a written agreement.

What about further payment beyond the day of the performance?
This is called credit for performance. It gives you rights to further payment if the performance is recorded or taped and the recording is later used on TV or radio or in some other commercial way. If you’re looking for performance credit, make sure you get it in writing.

When can you ask for song writing credit?
If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want credit for your contribution. If you feel you’re entitled to credit for your contribution, you must ask for song writing credit at the time the music is written or recorded. The agreement must be in writing and properly reflect what you are getting credit for.

What is the legal relationship among group members?
Most of the time, a group works together with the common goal of earning money, and they make decisions in a co-operative way. Legally, they are a partnership. The arrangement among members should be made in writing by all members sitting down together, setting out the rights and responsibilities of each, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so make sure everyone understands the agreement.

Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a proprietor. The hired musicians are employees only. They have no ownership interest in the group, unless there’s a different agreement.

When the earnings of a group become significant or the group is signed to a record deal, the group often carries on business as a company.

What about the name of the band?
It’s important as a group becomes popular to ensure that another group isn’t using your group name. A search of the name can be made on web sites such as Google or Mp3.com. You can register your group name for free on sites such as Bandname.com. A trademark can be sought for the group name and associated graphic designs if you wish to go to that expense.

Who in the band gets credit for original music?
It’s important to discuss credit for original music and understand each other as to who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all.

Once a song is written and recorded, the artists on the recording are entitled to performance credit, if that is agreed to.

How do you protect your band’s copyright in your music?
There should be proof of creation of the group’s work, so that copyright can be relied on in case there’s a dispute about who owns the work. You can do this informally by making a rough recording and a copy of the work. Get the songwriters to sign both the recording and copy, have them witnessed and dated, and store the original recording in a safe place.

Another way to prove copyright is to mail the original music, lyrics and recording to yourself by registered mail, and safely store the unopened original package. This provides proof of the date of creation of the work.

Successful musicians who write works of greater value will go to the expense of having their work formally registered with Industry Canada. See www.cipo.gc.ca. Canada doesn’t register single physical recordings, but the American copyright office does. See www.copyright.gov. Canadian albums that go into general release are, however, registered at the National Library of Canada by the publisher. See www.collectionscanada.ca.

How do you distribute and market your recordings?
Once the musical work is recorded, usually on CD, arrangements need to be made for distribution, marketing and appearances in support of the recording. This is the point where a group usually hires a manager and agent. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and the length of time of the agreement. This should be put in writing and reviewed by a lawyer.

When does a record company get involved?
If the group is successful and creates sufficient buzz, a record company may become interested. Deals offered by record companies tend to be lengthy and very technical. All agreements must be in writing and must be reviewed by the group’s manager and lawyer.

Where can you find more information?

• A good resource is the “Indie Band Bible” by Mark Makoway of the rock group “Moist.” The book is available at most libraries. 
• A more technical book is “Music Law” by Richard Sim, available at your local law library and through www.nolo.com. This book contains many forms of agreements you can use. The book is American, but the law is similar, and the book contains many references to Canadian law.
• www.MusicBC.org has many resources for musicians, including seminars, a library and technical help. Initial membership is free.
• Also refer to Dial-A-Law scripts 266 on “Forming a Partnership,” 267 on “Forming a Private Company” and 231 on “Patents, Industrial Designs, Trademarks and Copyright”.

[updated September 2007]

Dial-A-Law© is a library of legal information that is available:

• by phone, as recorded scripts, and
• in writing, on the CBA BC Branch website.

To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.cba.org/bc in Public & Media.

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia.

© Copyright 1983-2007 Canadian Bar Association, British Columbia