Joint Ownership of Sound Recordings

A July 28th decision by the Fourth Circuit, Brown v. Flowers, 2006 WL 2092548, led to a divided panel on whether a recording engineer was a joint author; the majority said no, the dissent yes, at least at the FRCP 12(b)(6) stage. Brown was a manager and Flowers was a musician. They formed a partnership called "Hectic Records," to provide vinyl 12 inch discs to clubs. With respect to particular recordings, Brown claimed work for hire ownership, or in the alternative joint-authorship. The district court granted Flowers' motion to dismiss on both points. The dissent agreed with dismissal of the work for hire claim, but not the joint authorship claim.

A business partnership does not by itself result in a copyright ownership. To own a copyright interest, you either have to contribute to the creation of the work (including fictionally through work for hire), or get a transfer. Brown did none of these. In a somewhat similar case, Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993), a manager's ownership claim was also rejected.

With audio recording of a live musical performance, and the making of sound recordings, the performers and the sound engineer/producer, are, absent any special circumstances classic joint authors. See H.R. Rep. No. 1476, 94th Cong. 2d Sess. 56 (1976); Diamond v. Gillis, 2005 U.S. Dist. LEXIS 2410 (E.D. Mich. Feb. 17, 2005); Staggers v. Real Authentic Sound, 77 F.Supp.2d 57, 63 (D.D.C. 1999). Systems XIX, Inc. v. Parker, 30 F.Supp.2d 1225, 1228-30 (N.D. Cal. 1998) (arrangement and administration of recording equipment, electronic processing of sounds, balancing, equalization of vocal, instrumental and audience components into a "blended whole"); Ballas v. Tedesco, 41 F.Supp.2d 531, 540 (D. N.J. 1999).

An interesting, but not persuasive, distinction between joint authorship in a musical composition being recorded and the sound recording was drawn in BTE v. Bonnecaze, 43 F.Supp.2d 619 (E.D. La. 1999). In BTE, a claim was made by the band’s drummer that he was a joint author of both the sound recording and the musical composition being recorded. Agreeing with the first argument, the court rejected the second, citing a distinction between the two copyrights and a belief that the drummer’s contributions were not fixed. This last point is erroneous: the contributions were fixed on the same tape that fixed the sound recording. Musical compositions can be fixed by notation, by any form of tape, or by any other means "now known or later developed," including "phonorecords." 17 U.S.C. § 101(definition of "phonorecords’). The court thus confused fixation of the musical composition with authorship in the sound recording.