Who owns the track?

[wilx2]

I get a different answer each time I ask this, and was wondering if someone with legal experience could give me a definitive answer.  In the following situation:

-muisc house contacts freelance composer to demo a couple tracks for a commercial

-it is known ahead of time by both the composer and the music house that a small demo fee will be paid to the composer in the event that their tracks are not selected for use.  however, there is no specific agreement explaining any transfer (or lack thereof) of rights; nothing is signed.

-the tracks are not selected for use, and the composer is paid the small demo fee.

Is the composer allowed to then embellish on either of the tracks, perhaps extend out to 2 minutes and finesse the mix a little better, and then submit that track to a library?  or is there some larger law that automatically assigns the rights to the song to the music house, the ad agency, or the client (and if so, which one?)?

I had an attorney tell me the composer does in fact still own the song, demo fee or not.  But I get so many conflicting answers it gives me the jitters.  Seems to be a very murky area.

thanks!

[Art Munson]

I’m not a lawyer but I would think that once money changes hands you have an implied contract. The only clean way would be to get it in writing that they are assigning all rights to you. But then you might have to pay back the demo fee.

Of course it only would become an issue if there were big bucks involved somewhere down the road and it was worth suing for.

[MichaelL]

Hi wilx2,

I don’t know if you’re in the US, but let’s assume that you are.

Under US copyright law, the ONLY WAY to transfer ownership of your copyright is in writing, even if money changes hands. When money changes hands without a clear intent in writing that the work was:  1) a work for hire, or 2) that the creator is transferring the copyright, it creates an implied non-exclusive license. The person who gave you the money can use the music, but they do not own it. Your lawyer was correct. You still own it.

If, you’re going to do this more often, have your lawyer draw up a simple agreement, stating the you are creating a demo, and that no rights are being transferred. Either way, always try to get a writing.

Cheers,

Michael

[wilx2]

Thanks guys!  MichaelL – yes, U.S.

very interesting. OK so law says implied non-exclusive license.  that sounds about right.

 

[Art Munson]

Have you thought about talking it over with the folks paying the demo fee? Maybe that’s not comfortable in your situation?… Might be worth a try if it is.

I occasionally submit for ads through a production company and there’s usually a demo fee involved. The first time around I asked what was expected and they were quick to let me know that the tracks are all mine if they’re not selected for the particular use at hand. I’m not saying this is universal and, of course, MichaelL knows the legalities, but from my experience it seems like a common viewpoint.

Here’s another thought: If the demo fee secured ownership there wouldn’t be much point to paying anything beyond the demo fee. Just call a bunch of composers and buy out their tracks with demo fees… I’m glad that it doesn’t work that way! From my experience the demo fee has always been compensation for taking the time and effort to make a track, nothing more. Also, think about this, unused tracks actually have a value to the production company that makes demo fees worth it to them. If they can present several high quality tracks for their client to choose from then it makes them look good to the client. Only one track will get picked but all of the tracks help in that scenario…

[wilx2]

I fianlly went ahead and asked the head of the company if it was OK to take an older retread (which I had received a demo fee for), fix it up, extend, and submit to a non-exclusive library.  He said “technially, yes” (whew!), but then said they were about to change their policy in the near future – so that their demo fee would be slightly higher, but would also secure “exclusive representation” of the submitted tracks in the process.

I’m glad I asked (thanks Kiwi – had to muster up the courage, not out of any comfort zone – I was just too afraid the answer would be no), and this of course comes as good news to me; as it should free up a bunch of tracks to submit.

[Art Munson]

Glad you got some resolution! Good luck with the tracks!

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