OK, here’s the situation:
A song is released on a major label, claiming to have been previously unreleased. Despite the A&R exec’s best efforts, he’s unable to track down the original publisher of the music, and gives it to one of his artists to release. Artist records it as a single with decent airplay.
Turns out, the song is not an unreleased piece, and was previously recorded by another major label a few years ago. Obviously, since the A&R exec was unable to come up with any information, he had no idea that the song had been previously recorded.
My questions: would there be a legal issue under these circumstances? Is it insane for an A&R exec to do anything with a song he was unable to properly credit to anyone? Do either the original label or the original artist have any legal claim to the song (assuming it was written by a third party). Does the songwriter have any legal claim (this seems the most likely to me) for their song being used without credit or explicit permission?
Well, it’s unlikely to happen, since all songs recorded are kept in a database by ASCAP or BMI and can be easily checked. In addition, in order to record a previously unrecorded song, you need to have the songwriter’s permission; the legal department for the record company would never allow this to happen.
However, if it did occur, the song would still belong to the original songwriter. If it had been recorded before, the A&R man can belatedly apply for a license, and it would eventually be negotiated.
Note that, even if unreleased, the songwriter holds copyright and would need to grant permission to record. This is especially true if the song was never recorded: an artist has to grant a mechanical license in order to record it in the first place. Once it’s recorded with the artist’s permission, then others can record it after paying for licensing it.
So, ultimately, it’d be in the A&R man’s best interest if the song was previously recorded. If it was, his group can use it; if not, the songwriter has the right to deny them from recording it, and forcing a recall of all CDs.
Thanks for the info. I ask because I think it did happen - the A&R guy in question claimed that the song was a previously unreleased piece, and that despite his best efforts, was unable to track down any info on the publisher. It seemed completely bizarre to me that he would even attempt to do anything with the song - which he says was “sitting in his drawer” for years - without having the information about the song.
At any rate, I did some Google-fu and found out that the song has indeed been released before. Based solely on his mistaken claim that it was an unreleased song, it would seem that there may have been a very big slip-up somewhere. Very odd.
At any rate, I’ve given him the information, so it’s up to him to fix the matter. Was just curious as to the ramifications of it all.
It is very curious. If it’s unreleased, they need the songwriters permission to record it, and the songwriter has the right to deny them that.
It’s actually better for the A&R guy that it was released: the songwriter cannot prevent them from using it, though he must be paid for it. They can either give him his statutory payment (i.e., the law sets payment rates) or negotiate a better payment and pay him the money he’s owed; that should clear things up.
But if it were an unreleased song, the A&R guy (or the band) would be liable for copyright infringement on top of everything else, with damages (if registered) much more than what they’d have to pay in licensing fees. Even if the song’s copyright wasn’t registered, they’d have to recall every copy of the album they shipped and destroy them (those not sold, of course) and couldn’t sell any more until they removed the song.
Though I wouldn’t trust the A&R guy. He didn’t contact ASCAP or BMI on this? That’s like not using the phone directory to find a phone number that you know isn’t unlisted.