The legal basics of working with session musicians

by Koka Tarini Siddhartha

When you listen to that brand-new song that came out last Friday, or even to one of those older James Brown or Beatles recordings, you sometimes come across a guitar riff or a drum break that just clicks, and becomes that one part of the song you look forward to the most. More often than not, the credit for these catchy and soulful portions of the song goes to a session musician involved in the recording. In this post, we discuss the role of these session musicians in the music industry and the rights they have over their contributions to a recording.

What is a session musician?

Session musicians, also known as studio musicians, are quite popular within the recording industry. These musicians generally specialize in playing one or more instruments (say, trumpet and saxophone), and owing to their years of expertise, are hired either by the recording artist or the label for a studio session or live performance.

A session musician is essentially the equivalent of a freelancer or an independent contractor who works on a project basis. These musicians are not band members, since they work for shorter periods of time with solo artists or bands, and are either paid a flat fee for their performance, or in rarer situations, are promised a portion of the future income the recording might make, especially when the artist or band is not able to afford the session musician — this is open to exploitation by either party.

Do session musicians fall within the ‘work-for-hire’ category?

Work-for-hire refers to an agreement entered into between an employer and employee wherein the employee is specifically hired by the employer, and through the agreement, the employer becomes the author and owner of the employee’s work. For example, a newspaper publishing company may retain copyright over articles written by its journalists, by virtue of their being employees of the company.

The situation with respect to session musicians is more complex. Generally, when a recording artist or label requires a session musician, they enter into a contract with the musician which stipulates that the session musician shall have no right over the sound recording and that (s)he is merely engaged on a ‘work-for-hire’ basis.

Since this clause is more enunciated under the United States Copyright Act, we will explain this further in the United States’ context. Unless the work done falls within a specified nine-category list (which includes translation and compilation) and fulfils certain other conditions, the work shall not be considered as ‘work-for-hire’.

Sound recordings (such as those performed by session musicians) do not fall within this list. This means these musicians are not in the ‘work-for-hire’ category, but are independent contractors, and not obligated to give up their rights.

Why are session musicians not mentioned on the sleeve note?

In a previous post, we have discussed the three components of a song, legally speaking, which include the musical composition, lyrics and sound recording. The contributing artists and lyricists have a vested copyright in their work. A session musician, thus, does have a copyright over his/her fifteen-second guitar riff or twenty-second piano hook by virtue of being the performer. This implies that the session musician can decide when the sound recording can be used and for what purposes.

The whole process of royalty splits, authorship and ownership claims is already a complicated task for record labels. To avoid future disputes from arising, they usually present session musicians with a standard contract which states that all copyrights over the sound recording as well as any royalties arising from it will be assigned to the record label (a session musician’s release) in return for a flat session rate. Thus, these musicians simply play for a fixed fee and the record label or recording artist is credited as the copyright owner.

…but session musicians are paid for their contributions. What part of this is not fair?

Agreed, it is fair that these musicians are getting paid for their performance, but session musicians are not like other independent contractors. Their job requires not only skill but also a lot of creative improvisation and the talent to read and interpret the sheet music instantly. Session musicians’ copyright over their recordings and their right to be recognized as joint authors of the song and to receive royalties are easily forgotten or disregarded, simply because of a contract. Record companies also conveniently ignore the possible future success of the sound recording in the form of digital sampling.

For example, Clyde Stubblefield — James Brown’s drummer on several albums — was not mentioned or credited ever. In the era of sampling that followed in the 1980s, his twenty-second drum solo from Funky Drummer was the most popularly sampled beat. From artists ranging from Public Enemy to the Beastie Boys, Stubblefield’s drum break was sampled like there was no tomorrow, for which he received zero credit or compensation.

Session musicians are often starved of the fame and royalties they rightfully deserve. A popular session musician, Steve Gregory — who played for bands such as the Rolling Stones and Fleetwood Mac — currently performs at weddings, corporate events and barn dances! The royalties that should have been steered towards him for all the times his recordings were sampled ended up going directly to the bands and record labels, making them even richer.

While the copyright laws in force do not accommodate session musicians, the musicians still have moral rights and performers’ rights over their sound recordings. They can decide how the recording should be performed, and if their image is distorted or the integrity of their work is snubbed, they can take legal action. Until the law bestows more rights on session musicians, especially as joint authors of a sound recording, they will have to be cautious while entering into contracts, and should negotiate the terms to ensure they receive the royalties and attribution due to them.

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