By Gary Schuster, Esq.

Music technology has reached a state where almost anyone can make an album of reasonable quality at home. Reproducing that album as compact discs could cost less than a dollar a unit. Websites like CDBABY.COM enable at least a degree of distribution at little if any cost. Music production and distribution is now truly available to the masses. It’s only a matter of time until a home-made album becomes a huge break-out hit. However, to be protected from legal claims or litigation, a home-made record producer needs to obtain a fair number of written licenses and releases:

  • Musician releases: Every musician and singer whose recorded performance appears on the record must give the producer a signed release granting permission. The permission must be broad enough to cover everything the producer might someday want to do with the recording.
  • Mechanical licenses: when a record company wants to put a song on an album, it needs permission from the owner of the song, generally the music publisher. For quaint historical reasons, that permission is called a “mechanical license”. Even where there is just you and a songwriter, without a “record company” or “music publisher”, you still need a written license from the song’s owner(s).
  • Samples: If you sample music for your album you need a mechanical license from the owner of the song, and also a “master use license” from the record company that owns the recording (“master”) you sampled.
  • Record Producer: Record producers generally don’t sing or play instruments for a record, but they do select and approve the songs, singers, instruments, musicians, arrangements, engineers, performances, final mixes and other components of recordings. Their contributions are artistic enough to be eligible for copyright, so you need the producer’s written release, just as with a musician.
  • Names and likenesses: Having a musician release pertaining only to the musician’s recorded performance does not go far enough. If you want to reproduce the name, photo or drawing (“likeness”) or biographical information of the musician on the album or in advertising or promotional materials, you also need permission to reproduce her “name and likeness”. This permission should be a part of the musician release. It’s mentioned separately because “name and likeness” are distinct pieces of property.
  • Liner notes, photographs, artwork: If you use someone else’s writing, artwork or photography in your album artwork, advertising or promotional materials, you need their written permission. Remember, if someone identifiable is depicted in a photograph, you need both the consent of the photographer and also the “name and likeness” consent of the person depicted.

3 Short Rules to Live By: 

  1. Get everything in writing, and signed. In copyright matters, “verbal agreements” have no force whatever and are useless.
  2. Obtaining permission will likely cost money. A percentage of sales is called a royalty, while a flat, one-time fee is often called a “buy-out”. The mechanical license usually requires a royalty in the range of 6¢ to 8.5¢ per record. Record producers commonly get both fees and royalties (calculated quite differently from mechanical license royalties). The featured singer usually gets a royalty. Most everyone else referred to above should get a “buy-out”.
  3. Yes, it can be awkward. You pick musical collaborators because your souls connect in some way. It can be difficult to talk business. Bite the bullet and do it, sooner rather than later. If you wait until after it’s all recorded, you’ve lost all bargaining power.

Gary Schuster is an attorney with Jacobowitz & Gubits, LLP, in Walden, New York. The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is no substitute for obtaining legal advice from an attorney based on your particular circumstances.