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Topic: Technical question -- NO speculation, please |
Ray Montee
From:
Portland, Oregon (deceased)
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Posted 2 Feb 2009 9:40 pm |
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YOU are a union/or non-union musician.
YOU are invited to participate on a CD recording Session.
You perform on over two dozen 'titles' over a two day period. Lot's of PUSH from the Star to hurry up and get the session done as it was costing him BIG Bucks.
A couple of weeks later, they call you back and you do another dozen 'titles' in a long, long session.
YOU receive NO PAY for the session work and yet it was found to be acceptable by the STAR, so much so, three CD's were professionally burned and marketed,
and ultimately won prestigious first place awards three years in a row.
CASE in POINT: As session players, NONE of US, ever received any pay. The original players were so upset, they refused to come back to the studio for the third and last session. So, a new group of musicians had to be installed in the studio.
I've attempted to feature these CD's (on which I played a prominent roll) on several different audio
players and was promptly reprimanded. I recently asked if I might play just three of these songs on my newly established YOUTUBE site in order that I might promote each of the three CD's. I was given a host of reasons WHY I COULD NOT DO THIS, etc. At this time, the STAR has recalled ALL of the CD's that were on consignment with the likes of Amazon, etc.
MY QUESTION: YOU HONEST TO GOODNESS session players might know the ethical DO's and DON'Ts in this kind of situation, as I don't. Are these not as much the property of the musicians that played on these CD's?
No written contract was ever presented or signed by the musicians. The STAR wants to have complete and total control......... He gave me a couple dozen CD's after I was complaining about it and he told me to go ahead and sell or give them away.......his way of providing me with some form remuneration.
I can't promote the material if I can't make folks aware of what quality material is on the CD's.
WHAT SAY YOU? WHAT WOULD YOU DO if YOU actually found yourself in this position? I'm not asking for legal advice but rather, what might you do, personally? Do you as a player, see any legal ramifications by placing them on YOUTUBE? |
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Paul Honeycutt
From:
Colorado, USA
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Posted 2 Feb 2009 10:13 pm
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It's my feeling that you should have had an agreement for compensation before you recorded a single note. Either you should have charged an hourly rate or played for a percentage of the profits of CD's sold or a flat rate. It's hard to get the toothpaste back in the tube once it's out.
I think in this case you're out of luck. Other's may feel differently. |
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Edward Meisse
From:
Santa Rosa, California, USA
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Posted 2 Feb 2009 10:28 pm
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I'd be very unhappy in that situation. But I don't have enough information to know what I'd do about the question you're raising. It could be that even though he owns the recording (assuming that he at least paid the studio) he may not own the rights to the songs. He may be worried after the fact about marketing a recording for which the musicians involved have not been contracted or paid. I'm sorry. But I can't help but speculate when I don't have all the facts. 
_________________
Amor vincit omnia |
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Rick Campbell
From:
Sneedville, TN, USA
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Posted 2 Feb 2009 11:09 pm
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Sounds like a job for Judge Judy. No bigger than that. If it was a union session, the union will go to bat for you, with the proper legals. If it's a non-union session....as a union member, you're not supposed to be playing them anyway. So no help is available, and if the union wanted to make an issue out of it, thay could kick you out.
If you enjoyed it, that's probably all you see from it. |
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Dave Mudgett
From:
Central Pennsylvania and Gallatin, Tennessee
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Posted 2 Feb 2009 11:34 pm
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Disclaimer - I'm not a full-time professional recording steel guitar player, nor am I a lawyer.
With that said, what do you want? To get paid or to use the material on your youtube site? I don't think you can use the material legally without permission of whoever owns the relevant rights. But if they don't have a contract with you giving them the right to publicly perform your contribution, I don't believe they have a right to use your parts either. To my understanding, a contract is composed of an agreement plus consideration. It seems to me that you have been given zero consideration, and it appears that you all obviously did not have a meeting of the minds on the terms of agreement for use of your contributions.
Simply out of principle, I would insist that my contributions be removed if we couldn't come to a reasonable agreement on how I should be compensated. If I wanted to simply use a few clips on something like a non-commercial youtube site, I'd offer to forego payment as a quid pro quo for that. Short of some type of compensation, I'd fight someone tooth and nail on this to get my contribution off the CD. I know that may sound counterintuitive to a professional musician, but I won't tolerate someone pi$$ing on me with impunity.
This is actual experience. I was in a blues band for over a decade that, in 1999, won the Musician/Billboard mag "Best Unsigned Band of the Year" contest. When it came time to put our tunes on their annual compilation CD as winners, each band member had to sign a permission form to use this material. Band members were credited on the performances, and MM/BB argued that they simply couldn't include them if everybody didn't sign. Frankly, with the way things were going with this band at the time, I almost didn't sign. If I hadn't, the band would not have been able to receive the award, get the prizes, and so on. They weren't doing anything with this material except printing and distributing some CDs as part of the contest, but were adamant that they would be taking on too much liability to even do that without all permissions duly signed.
On the other hand, if what I wanted was to get paid, I would first send a certified letter to the producer with an itemized bill for my services - at the amount verbally agreed upon - with a cc to my lawyer. I would strongly encourage the other stiffed musicians to do the same concurrently. It seems to me that all of you taking that action together would help validate your claims. If that didn't do anything, I would take legal advice. It seems to me that the biggest legal problem here would be proving that you had an agreement to be paid for your services.
I'm sure there are a lot of wrinkles to this. But if you were credited on the performance and not paid anything, I think you may have some recourse. Proving things is another story, and it may not make economic sense to do anything about it. But I have sometimes done things on principle just to spite my opponent. Sometimes it's necessary to be an SOB to get people to do the right thing. My experience, anyway.
Last edited by Dave Mudgett on 2 Feb 2009 11:57 pm; edited 1 time in total |
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Tommy Shown
From:
Denham Springs, La.
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Posted 2 Feb 2009 11:49 pm
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I agree with Paul, you should a have signed some sort of agreement for your services, in some states,
a verbal agreement can be just as binding as a written agreement. In the past when I did studio,I would charge for each song that I performed on. If I played on two songs I would charge $100.00 ($50.00 per song ) and so on. It soucnds like you need to seek some legal help on this matter Roy. The stuff about giving some CD's to sell is not the job of the studio musician, it's the job of the artist to get out there and push the record. |
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Donny Hinson
From:
Glen Burnie, Md. U.S.A.
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Posted 3 Feb 2009 12:20 am
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| Quote: |
| Are these not as much the property of the musicians that played on these CD's? |
Emphatically no. Presuming you are just a sideman on the recordings, you are "contracted help", nothing more. (Presumption made on the basis you did not refer to yourself as a "co-star". You were only hired to perform a service.)
| Quote: |
| No written contract was ever presented or signed by the musicians. |
Okay, but were there any verbal agreements made between you and the "star"? Were any promises made as to renumeration? From what little you tell us, you were given CD's to "sell or give away". If those were accepted by you as your renumeration, then your contract may be considered as fulfilled. (Your participation in a second recording session suggests you were content with whatever agreements were made in reference to your playing/compensation.)
If you did not write the songs or own publishing rights, then you have no right to distribute them in any other manner other than in that which was agreed; i.e., the sale or gifting of the aforementioned CD's. (In addition, if the "star" did not write or own the material, then he does not have power to convey any distribution rights to you.) Posting songs on a website is considered as "distribution" of same. Therefore, you have no legal right to post entire songs on YouTube. However, you may possibly have rights to post small excerpts of the material provided it falls within the "Fair-Use Doctrines" of copyright laws. (Short excerpts might be permissable if they could be termed as "educational" in nature.)
Lastly, it sounds like all this took place 3 years (or more) ago. Should that be the case, then the statute of limitations is also working against you in regards to any compensation. |
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Eric West
From:
Portland, Oregon, USA, R.I.P.
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Posted 3 Feb 2009 1:51 am
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Don't work for free.
If you do you lose the right to whine about it.
Simple as that.
EJL |
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Hook Moore
From:
South Charleston,West Virginia
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George Piburn
From:
The Land of Enchantment New Mexico
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Posted 3 Feb 2009 4:10 am edit
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edit
Last edited by George Piburn on 21 Jun 2012 7:32 am; edited 1 time in total |
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Barry Blackwood
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Posted 3 Feb 2009 7:19 am
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| All of the above... |
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Tony Glassman
From:
The Great Northwest
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Posted 3 Feb 2009 7:21 am
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| take it to small claims court.........and bring in the other unpaid session musicians as your witnesses. |
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Walter Killam
From:
Nebraska, USA
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Posted 3 Feb 2009 7:42 am Call it a day & move on
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Hi Ray,
I am not a union musician, and not a lawyer. This sounds like a NO-WIN situation to me . . ..
Currently the "Artist" already has your product, and trying to pry consideration out of finished product is likely to be bad for everyone involved. IF you win the argument and get permission to post or other compensation, you are unlikely to get anything else from the "artist" except a lot of bad press. If you lose the argument, you get nothing, and a lot of bad press.
Currently, if the recordings are getting exposure, then I would consider putting up a Banner website stating that "The fabulous Ray Montee" played on this album, and is available for hire on your next project. Then get a contract for the next time you go into the studio.
to paraphrase Buddha:
"Holding on to Anger is like holding a hot coal in your hand with the intention of throwing it at someone else. The person most burned is you."
that said, I DO love a good argument.
good luck bro
_________________
Mostly junque with a few knick-knacks that I really can't do without! |
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Brian Kurlychek
From:
Maine, USA
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Posted 3 Feb 2009 10:04 am
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You stated the fact that you did not have a contract and that you never got paid for your work.
Alot of things aren't clear about who owns the rights to the work, however, one part is- you do not own the rights.
Now, the question is: Does the party telling you that you cannot sell on Amazon, or post on Youtube actually own the rights to the works in question?
If they are the rights-holder, then there is nothing you can do.
If that person does not own the copyright, then who does? That is really the question you need to answer.
A copyright cannot be enforced but by the copyright holder. This means that if the person ordering a cease and decist is not the copyright holder, then he has no right to enforce it. If he is copyright holder than he has every right.
You really need to provide more information to get a definitive answer.
_________________
We live to play another day. |
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Mike Harris
From:
Texas, USA
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Posted 3 Feb 2009 10:49 am
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I think Dave has the right idea--all the players banding together with a single suit (or threat to bring suit) has more weight and is less complicated and probably less expensive.
I used to play in a band with one of the original Mothers of Invention. During this time most of the original band took Frank Zappa to court over the fact that they had never been paid for some of the studio work they did in the 60's. Surprisingly, they got a settlement, more than 20 years after the fact, from an established and powerful musician who had had a lot of success in court cases. If you can find the right lawyer to represent the group "on spec," you could eventually get more than a few CD's out of this. The first thing is to find out if a lawyer thinks you have a case.
good luck, I hope it works out for all of you. |
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Donny Hinson
From:
Glen Burnie, Md. U.S.A.
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Posted 3 Feb 2009 12:07 pm
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| Mike Harris wrote: |
During this time most of the original band took Frank Zappa to court over the fact that they had never been paid for some of the studio work they did in the 60's. Surprisingly, they got a settlement, more than 20 years after the fact, from an established and powerful musician who had had a lot of success in court cases.
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The statute of limitations varies from state to state, with some states having as little as 3 years, and others as many as 15, for parties to file suit for collection on a debt. The fact Zappa's band got a settlement 20 years after the fact really doesn't tell the whole story. They may have filed suit within the appropriate (statute of limitations) time limit, and the case could have been tied up in court for many years. Once the statute of limitations deadline has passed, you stand almost no chance to file a successful suit to recover the debt. |
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Ray Montee
From:
Portland, Oregon (deceased)
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Posted 3 Feb 2009 12:43 pm Great responses..................and much appreciated
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I wish to thank each and everyone of you for your unqiue and personal points of view.
Now let's say, that I'm not interested in collecting any monies for the sessions worked but RATHER:
If I sold YOU, a copy of one of these CD's.......
That was actually produced by The STAR...........
and atleast at one point, (if not even at this time) was actively being marketed for sale, by The STAR...................
couldn't YOU have any one of the songs on any one of the three CD's installed on YOU TUBE or ON STAGE or anywhere else of YOUR choice?
When does The STAR's 'control' over the CD end? Once the product is sold? How can one sell a product and then exercise control over how that product is used in the future, if not used for other commercial purposes.
I'm just curious! |
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Bob Hoffnar
From:
Austin, Tx
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Posted 3 Feb 2009 1:12 pm
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Ray,
The quick answer to your last post is no. Having a physical copy of a CD does not give you those rights. Read the opening legal bit at the beginning of any commercially produced DVD.
_________________
Bob |
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Drew Howard
From:
48854
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Posted 3 Feb 2009 1:24 pm
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| Quote: |
You perform on over two dozen 'titles' over a two day period. Lot's of PUSH from the Star to hurry up and get the session done as it was costing him BIG Bucks.
A couple of weeks later, they call you back and you do another dozen 'titles' in a long, long session.
YOU receive NO PAY for the session work and yet it was found to be acceptable by the STAR, so much so, three CD's were professionally burned and marketed,
and ultimately won prestigious first place awards three years in a row.
CASE in POINT: As session players, NONE of US, ever received any pay. The original players were so upset, they refused to come back to the studio for the third and last session. So, a new group of musicians had to be installed in the studio. |
So why did you work for free?
_________________
http://www.drewhoward.com |
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b0b
From:
Cloverdale, CA, USA
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Ray Montee
From:
Portland, Oregon (deceased)
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Posted 3 Feb 2009 1:46 pm Here's the way the story was pitched to me..................
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AGAIN NOW, I'm not disgruntled for not having been paid. I'm pissed because I'm now told as an owner of the CD being commercially sold by The STAR, that I can't play it anywhere.
The story was: An elderly gentleman wanted to make a CD for his legacy, for his family and kids to have after he was gone; something he could leave behind to be remembered by.
It was just a little family project, nothing more.
I weighed the pro's and con's and determined it would be the best way for me to get to record something without costing me an arm and leg. It was my first opportunity to play then hear the Rickenbacher guitar and in a style of music that I have long had a love affair.
Arriving at the studio, everyone knew each other, like family and long term friends, except me. All of a sudden, the hobby songs became a playlist of nearly 30 songs. Oh well, more to play, more fun!
Several family friends were invited to come and be on The STAR's CD.
A short time later, this hobby project, turned into a money making commercial venture, complete with a producer, and distributors, etc. Lot's of marketing hype.
I have no problem with any of the above except, I'd like for my friends and acquaintances to be able to hear my work product...........and thus, I felt that
playing three cuts from this CD would not be a great invasion into The STAR's potential EARNINGS! I'd planned to display each of the CD jackets in order to better promote them and was going to refer all sales to the STAR, rather than even trying to retail my stash.
Once or twice before, I was called on the carpet for having cuts from the CD's played on the HSGA site and another site with which I have never had any contact. I promptly removed the HSGA cuts and they've been gone for more than a year.
It was my latest inquiry to have the three cuts played on my new YOU TUBE account and was told emphatically "NO"!
How is it that records from all kinds of lables are being played everywhere but these somehow are different? Don't I have any rights to my work product since it was not paid for or in anyway a commercial, contractual transaction?
I'm NOT BITCHING! I'm NOT COMPLAINING! I just would like to better understand WHY! |
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Brian Kurlychek
From:
Maine, USA
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Posted 3 Feb 2009 4:07 pm
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Skipper,
The reason is simple. You have run up against a small time copyright owner policing his own stuff. this happens more than when a big company hires a firm to do the policing.
Alot of the stuff on Youtube is in violation of someone's copyright. Probrobly 90% of it. The reason it is on there is because no one cares enough to police it, or they just don't know about it yet.
_________________
We live to play another day. |
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Ron Whitfield
From:
Kaaawa, Hawaii, USA
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Posted 3 Feb 2009 5:03 pm So there ya go, Ray...
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| ...just put the tunes you wish up on your site/s and The Star be damned! |
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Dave Mudgett
From:
Central Pennsylvania and Gallatin, Tennessee
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Posted 3 Feb 2009 5:56 pm
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| Quote: |
The story was: An elderly gentleman wanted to make a CD for his legacy, for his family and kids to have after he was gone; something he could leave behind to be remembered by.
It was just a little family project, nothing more. |
That tells me everything I needed to hear. You never agreed to commercial use of your contributions. The "star" has no right to sell the results of this project. You entered into an agreement to play for free under false pretenses, and I think you have rights.
Were it me, I would tell him to either allow me to post some clips or take me out of the mix, pure and simple. I would encourage the other players to do the same.
I know it's not about money. But the idea that someone can 1) lure players to play under the pretense of an informal, private, non-commercial project without pay; 2) then turn around and turn it into a public, commercial project and sell CDs; and then 3) tell the players that donated their time under false pretenses that they have no rights to anything - this is abject nonsense. IMO, this person has no commercial rights to your, or the other players', work, just the same as you have no rights to his.
Yes, maybe this is hard-nosed, but these people are playing hardball. If you don't assert your rights, you will lose them for certain.
I suspected that what you really wanted was to be able to post a few clips of your playing. I would play hardball and demand a quid pro quo for changing the terms of your agreement to play. You have nothing to lose.
| Quote: |
| ...just put the tunes you wish up on your site/s and The Star be damned! |
Not being a lawyer, I won't advise this. But on the other hand - since I'd want to see this adjudicated, maybe that isn't so farfetched after all. I think you have every right to say he shouldn't be selling these.
Again - I'm no lawyer. But it seems to me that he's running as big a risk selling these without agreement from the artists that performed on it as much as you'd be risking posting these without his permission.
Another object lesson that no good deed goes unpunished. Right, Eric?
My opinion, YMMV, blah blah, and more blah blah blah. |
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Brian Kurlychek
From:
Maine, USA
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Posted 3 Feb 2009 6:26 pm
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You know, that is an interesting way to look at it. I think this probly won't get resolved without alot of money and lawyers though, but you make a damn good case Dave.
_________________
We live to play another day. |
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