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...