Re: Performers' Right in Sound Recordings

>Scott Fedewa wrote:
>
>As I understand it, the "owner" of most sound recording copyrights is the
>record company that underwrote the recording project. In theory, wouldn't
>a "performance right" probably mirror the rights you allude to that the
>composer/writer has and remain vested in the performers despite the record
>company's ownership of the master rights in their performance? (Which, if
>they remained unalienable as writer's rights seem to be, would mean that
>permission would also be required of the performers before public
>broadcast?)
>
>Also, when you state that the "permission of the composer is necessary",
>are you referring to the fact that although permission to broadcast sound
>recordings is almost never witheld, broadcasters must pay royalties to the
>performing rights societies (ASCAP/BMI/SESAC)? Or is there another right
>mixed in there?

This is wrong. Let's be clear: *there is no performance right in sound recordings.* Copyright in music works as follows: the original author of the musical composition gets both the right to make copies of the song and the right to control public performances of the song. The band that records the song (or their record company) gets a copyright in the sound recording which is distinct from the author's copyright in the song itself. *However,* the sound recording copyright does not include the right to control public performances of the sound recording, just the right to make copies of the sound recording.

Thus, if I play a song in public (over the radio, in a bar, etc), I must pay the author of the musical composition for the right to perform. This royalty is generally collected by ASCAP or BMI. The owner of the sound recording copyright gets nothing -- they are presumed to get their fair share of royalties when I bought a copy of their recording.

Hope this helps.  

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Thu Dec 15 1994 - 22:54:46 GMT