This month I would like to present you with an interesting hypothetical situation. You and your friend have decided to make a seven-track CD of some original tunes you both have been working on, just for the fun of it, to sell at your live performances. Given today’s digital technology, this is neither hard nor expensive to do. You both share expenses and work on the recording pretty much equally.
When you are finished, the product is raw but marketable and you both sell quite a few of them at your live performances.
Then something happens. Your friend, without telling you first, gets a recording contract with a major independent label utilizing your CD as a demo. She suddenly starts canceling gigs and becomes unavailable. When you finally decide to market a remixed version of the CD through an Internet supplier to recoup your investment, you and the supplier get a very nasty letter from a lawyer stating that you, by trying to commercially sell the record, are breaching your friend’s ownership rights and that you should immediately cease and desist from trying to sell the recordings. What are your rights?
First of all you should know that when artists jointly contribute to a creative project, the byproduct of the project, whether it’s a book or a record, is jointly owned by both. Hence, both authors jointly own the work and are free to exploit the recordings in any way they choose, subject only to providing each other with an accounting of net profits they have earned.
So assuming that you and your friend did not enter into a binding contract through which you both agreed not to commercially sell the recordings, you are free to sell them in any form you wish.
Don’t let the lawyer bully you into forfeiting your rights. They most likely work for the record company and want to protect their product.
Nonetheless, some very important issues arise from this situation that you should not overlook.
First, are you both truly joint owners? This is a fact-intensive inquiry which requires a thorough scrutiny of the relative contributions of both participants to the project.
Next, while you do not have a formal contractual arrangement with your friend, you may have an enforceable informal oral agreement prohibiting commercial sale of the recordings. (See my column in the September 2004 issue of Allegro for a discussion of oral contracts. Columns are archived at www.Local802afm.org under “Local 802 News,” then “Publications and Press Releases.”)
Finally, assuming you can sell the recordings, can you use your now-famous ex-friend’s picture and name on the album? Since you both own the work, you arguably own every part of it, including use of the name and likeness of your friend — especially if both were used in connection with the original recording.
The moral of this story is this. Even if you undertake a recording project just for fun with a trusted friend, make sure that your respective rights are clear in the event the recordings ever become valuable in the future.
P.S. I’ve written two columns in this space about your right to practice in your apartment (see the May 2004 and October 2005 issues). Good news: I read in the New York Law Journal last month that a judge was censured because he had issued an order barring a musician from practicing in his apartment without a legal proceeding first being commenced by the complainant. Apparently the judge had done a favor for the complainant, who was a personal friend. You see, not even judges are above the law!
Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Mars at JurMars566@aol.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.