Topic: Legal rights

[Dave Castle]

Hello fellow thumpers....

I have a questions regarding rights to original material. Does a drummer have any legal right/recourse when a previous band is using his material... music, pics and recordings for their new/updated promotional material? Video of the new drummer playing my tracks. I am a member of BMI, we have an album out that is currently spinning on a network of internet radio stations as well as  organic stations. I was voted out of the band (not because of my playing inability) rather due to "can't give up anymore of my $$$ for nothing issues". I never gave permission to use my material. Am I barking up a tree or do I have rights?

Thanks... The Keep

[Bart Elliott]

Dave, I think you'll need to contact a lawyer on this one. There are a lot of unknowns for me to be able to even give you any other suggestion.

Questions the lawyer would need answered:

• Did you sign any contract with the band? Was there verbal contract?
• Did you get paid for the recording session when creating the album?
• Did you write lyrics or compose any of the songs on the album? Drum parts and grooves don't count unfortunately.
• Was there any type of agreement about the profits from CD sales? Does all the money go to the band as a unit or does a portion go to each member?

In my opinion, unless the CD, or one of the songs from the album, is getting air play, being used in a radio/tv commercial, appearing in a television show or movie, it's not going to be worth your time, energy and finances to fight this.

Even with the information you've given, unless you made some sort of arrangement or agreement, you are, as you said, barking up the wrong tree.

Choose your battles my friend ... and always try to get as much as you can in writing ... as much of a HUGE pain as it is.

[Dave Castle]

Thank you Bart.... I have a contract with BMI as far as royalty payout but do not have a signed contract with the band. I did however co-write lyrics on one of the songs but again... no paper trail. Shame on me the first time right? I'll consider legal advise.... or maybe just a good luck pat on the back and move on.

Can't wait to dig more into this site. Gonna be a lot of fun!

Dave

[Bill Bachman]

Welcome and good questions!

It is sad that drummers don't get squat for playing on records (other than the hopeful up front session pay), but that's an interesting question. You might say that if a drummer plays a real straight 2 & 4 that he/she didn't really bring much of anything creative to the table, but just a nice feel. Then you look at a guy like Gavin Harrison who's drumming MAKES the songs what they are and realize that's there's still no writing credits no mater how much unique stuff he brought to the table with his drums.

Discuss...

[David Crigger]

As fond as I am to of what a great drummer can bring to a record, it is really no different than a cool bass line, a memorable rhythm guitar part, great chord changes or even more often than not a signature brass lick that everyone might remember more than the melody itself. For good or bad - all of those things, in fact everything but melody and lyrics are deemed part of the arrangement, not part of the song copyright itself.

The arrangement and the performance of the arrangement all fall under the copyright of the recording itself. So isn't as though there isn't a path to re-numeration  for all these things. (I know there are provisions for copyrighting arrangements in some cases as well as derivative works - just trying to keep it simple as that it was applies in 99% of band recording circumstances)

And considering that probably less than 1% of professional releases ever show a profit, the whole session guy paid up front thing isn't necessarily such a bad thing, compared to working for free and then hoping for a back-end (like the artist).

Now, of course, writing credits can be divvied up anyway the parties involved see fit - and over the years I've seen many a band go for the "group" writing credit for all or some of their material. Note: just because the credit reads four or five names doesn't mean that it's an equal split - the split percentages can be again, whatever the parties involved agree to. Which of course only ever goes smoothly when decided upon in advance.

None of the above is me suggesting that drummers should just demand a writer's share for simply coming up with good drum parts to go with songs, because... that's not songwriting. It may be creative, it may be important to the record... but it ain't songwriting. It is simply doing what drummers are supposed to do.

On the other hand, if the drum parts, thus the drummer are essential to the sound of the record, or the recording/band effort requires a lot of uncompensated investment of time and energy from the drummer - pursuing an equity stake, a legal part of ownership of the band (and thus a percentage of the sound recording copyrights) is a really good idea. Though I can't say one that drummers pursue that often, sad to say.  Thus the countless stories of players latching onto singers, building a local following with them, only to find that even when labels are signing bands they are really only interested in signing singers and songwriters (because everyone else - yes, that includes us drummers are really pretty easily replaced). So the singer gets signed, his/her new management dictates that it's time to drop the old band, head into the studio with session guys and later hit the road with new guys.

To Dave, the original poster - I agree with Bart, without more specific knowledge to the contrary, there is nothing to pursue here and everything that has gone down is really pretty common practice. If you are attached to any of the songs as a BMI writer (meaning you're on the copyright form), then when those songs generate any income, you'll receive your cut directly from BMI. But being played on a few radio stations is highly unlikely to generate any royalty income at all.

And as common practice as all of this sounds, making a big deal out of it on principle (as I doubt there's any money to recover) could just burn more bridges with folks that you might find yourself reconnecting with (in part or whatever) in the future - and in general, is just time and energy that could be better spent moving forward.. on to other bands and other musical opportunities.

David

[Chris Whitten]

I'm basically in agreement with DC.
A drum part does not constitute a songwriting credit or arrangement.
However, fwiw, in the UK you do get residual even as a one off session player:
http://www.ppluk.com/en/I-Make-Music/

There have been attempts to bring a system like this to the US, but the radio lobby always manages to squash it.

[Chip Donaho]

I've already been down this road. I was on a CD recording doing songs for a singer that he wrote the songs. I got the musicians for him to do the CD. Shortly after we done the recording, he moved to Nashville and took the CD off the net.
Even tho other musicians were on the recording, none of us had the rights to the music but him. He had all of us sign a form that it's his music. Now he owns a recording studio in Nashville....All that work for $500 each, and we have no rights for doing it. 

[Chris Whitten]

Hey, I did one of my biggest albums for less than my normal $ rate as a favour to the producer.
Thems the breaks. 

I'm don't regret it or if I was made the same proposal change a thing.

[Dave Castle]

I appreciate all of the input and responses. It's all about moving on with a smile. Something about the nature of the beast. I hope y'all keep it going for awhile... makes for good reading as well as the creative energy flowing.

I'm gonna follow DC's advice about NOT burning bridges. Never know what tomorrow will bring.

thanks boy's!