Mix Copyright: Is a mix intellectual property?

If I mix someone else's recording, is that particular mix my intellectual property? While there isn't a specific court case as a precedent, the answer seems to be yes. In an era where a reference mix might be identical to a finished master, other than the CD-R burn rate, this concept provides leverage for getting paid. Furthermore, it's important to understand your rights to ownership of your work as this era of new business models continues to evolve. Alan Korn, a lawyer and friend of Tape Op whose name you'll recognize from his ad in the back of the magazine, helped me research copyright law to see that you do have a claim to ownership of the recordings that you engineer.

The first idea to understand is that a recording and the underlying musical composition are two separate works with their own separate copyrights. An easy place to recognize this concept is the standard record deal. According to Alan, "A sound recording copyright protects the specific sounds produced by a particular musical performance. The copyright in those sound elements (after the iron oxide or 1s and 0s are read by a machine) is originally owned by the performers, and it's only transferred to the record company if there's a written agreement. But the copyright in the song itself will belong to the artist, or whoever wrote that particular song, or their publisher, as the case may be."

When an artist signs a record deal where the label owns the masters, that's what has happened. The singer/songwriter will own the song that they've written, but the record label owns the masters — that specific recording of that specific performance. If the same song was recorded again, that would be a new master that the label wouldn't own. For instance, if another artist on another label covered the song there would now be three copyrights.

The first copyright is for the composition owned by the singer/songwriter. The second copyright is for the sound recording he made after he signed his record deal and is owned by the label. The third copyright is for the sound recording made by the band doing the cover version and owned by their label (assuming that they have a record deal). So each new recording is a separate copyright. Generally, to protect the value of the masters, recording contracts specify that the artist will not re-record the songs that the label has paid to record. Otherwise, a band could re-record the same album for another label or to sell independently.

When you make a mix, and this is especially clear when you mix from a 24-track tape to a 2-track tape, you are making a new recording. Therefore, there is a new recording and new copyright. As Alan explains, "The Copyright Act defines a sound recording as a work that arises from the fixation of a series of musical, spoken or other sounds, regardless of the object they're embodied on. So a sound recording copyright covers the particular selection, arrangement and coordination of sounds embodied that result from a specific performance or mix. So for each particular mix of a 24- track tape, there would exist a different sound recording copyright."

Who owns each mix? A common misconception is that the mix is a work for hire (being "hired" to do some "work" does not make it a "work for hire"). According to Alan, "A 'work made for hire' has a specific meaning under copyright. It's defined under the U.S. Copyright Act as 1) a work prepared by an employee within the scope of employment; or 2) a commissioned work that falls within a specified category of works and the parties agree in writing to treat it as a work made for hire." If the mix engineer was on staff at the label, then the label can claim ownership of the work. But, in most cases, the mix engineer is freelance or even the studio owner. Therefore, since most producers work as independent contractors, their work product will only be considered a work made for hire if there is a signed written agreement with the label or artist stating their contributions to the masters will be considered a 'work made for hire.'

So we've established that in the situations that most mixes are made (and most recordings, for that matter) a new mix is a new sound recording and a separate copyright. In the absence of a contract specifying a transfer of ownership, the mix engineer is the author of the work and therefore owns the copyright to that particular mix. However, since the songwriter owns and controls the underlying composition, the mix engineer can't reproduce, distribute or perform it without permission. Additionally, the artist has probably signed exclusive distribution rights away to the label, so the mix engineer owns something that they can sell only to the label — which is what they are doing when they get paid for the mix. This brings us to how it can be very helpful in getting paid.

Generally, when you're working for a band, they will pay you at the beginning or end of each session. However, when doing label work, it's common to send invoices, which always take far longer than anyone expects, for you to get paid. (How does it always happen that all four people who have to sign off on your invoice always take vacations back to back in the order that they need to sign?)

I've had a couple of instances where a label started using my work, specifically releasing albums and actually Soundscanning copies in stores before they've paid my invoice. Anyone who has tried to get an invoice paid without any leverage knows how hard this is. If the person or company who hired you hasn't paid you, and there was no work for hire contract, they have no claim to ownership of the work, and in my case they were selling something that they didn't own. Therefore, each sale is a copyright violation, which has the potential for major penalties. I've found that explaining this usually provides the necessary motivation to get them to pay right away. In fact, in every situation where I've asked to either be paid immediately or for the company to not use my work I've gotten a check messengered over within 24 hours. This is an extremely big stick to swing, so you've got to be very tactful. Threatening people is just going to make them hostile, but if you describe the situation, explain why what they're doing is not right, they'll most likely make good very quickly. Adding wording to your invoices in the first place stating that conveyance of engineer's rights in the master is conditioned upon receipt of full payment is something I've been doing for a long time and an idea that Alan seconds.

Once you start viewing the recordings you make as a piece of intellectual property that you own, it opens up a lot of possibilities for business deals. I recently mixed a project for a band on a very limited budget. We ended up agreeing on a rate that everyone was happy with, but one idea we considered was to do the work for the lower rate but to treat the fee as a license fee for a limited use. In other words, they pay a reduced rate, but agree that the rate would be for one pressing. If they sold enough to do additional pressings or got the recording licensed for a TV show or movie, there'd be another fee at that time.

You can also apply the ownership concept to spec deals. I've done a couple of successful deals where I provided recording time and shared ownership of the masters with the band. We then licensed those masters and shared the licensing fee. In order to do these types of deals you have to view a sound recording that you create as a piece of intellectual property that you own. I think over the next few years, as we become less dependent on CD sales for revenue, this view will become much more important.