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All information in these pages is copyright (c) 1989-2003 by Roger Nichols. All rights reserved. Permission for personal reference only, and may not be reproduced by any method without written permission.

Engineer’s Rights
By Roger Nichols

© 2002 Roger Nichols

Let’s talk today about copyrights. Get out your U.S. Copyright manual and turn to page 234,167 paragraph 1624.1.4b. Now read along with me, “A com-pil-a-tion is a work formed by the co-llec-tion and ass-emb-ling of pre-exist-ing ma-ter-I-als…”

The copyright protection available to a CD comes in two layers. There is a copyright for phonorecords that is awarded to the record company for the actual recording itself. This is usually accompanied by the letter “p” in a circle (p). There is also a copyright for the underlying works produced by the songwriter’s words and music. This copyright is signified by the letter “c” in a circle ©. That seems to cover everything. But, maybe it doesn’t. Is there another layer of creativity in the record making process that can be codified? What about the mixing of the record?

Let’s back up for a second. The words in the song mean nothing until they are arranged in a specific way. They then become special and are afforded copyright protection so that nobody can take those words and reproduce them without permission. The same is true about the music. Just a bunch of notes on a piece of paper or sounds in an instrument until they are placed in a special sequence that creates a unique musical arrangement. The music also is afforded copyright protection.

As far as the completed record is concerned, the jumble of lyrics and musical notes mean nothing until they are combined to make the finished recording. The finished recording is a unique artistic creation that can be protected by copyright as a phonorecord.

Here is where the engineer comes in. Well, actually the engineer came in between the lyrics & music creation and the phonorecord creation. The engineer took all of the pieces and turned them into a unique combination of elements that made up the final product. The final product gets a copyright. Now, there must be something unique about a mix because if you make two different mixes of that same material and put them on a CD, they each get copyright protection, the record company gets royalties on both versions and the songwriters get paid for both performances.

Pay Attention Now

The engineer’s mix is a collection of moves and adjustments that change what is on the multi-track tape into what is on the final mix. If the automated mix is re-played, the mix is exactly the same. If the mix is changed slightly then the result is a different mix. But, the new mix is based on the original mix.

If someone else takes the multi-track tape and makes a new mix from scratch, the results are different. The underlying lyrics and music are the same, but the phonorecord is different. You still have to pay the lyricist and the arranger (and the artist, but that is not a copyright issue) because the new mix is based on the underlying copyrighted material. Even if you change the musicians and change the singer, the underlying copyright remains.

If the engineer performs an automated mix, the actual moves of the mix can be copyrighted. If, after the mixes and automation disks and Pro Tools sessions have been turned in to the record company, someone recalls the engineer’s mix to make surround mixes, or TV mixes, they are producing new copyrightable phonorecord from your mix. The engineer should get paid.

I have been researching this for quite some time. The copyright form to use is Form TX for literary work and compilations, and computer software. As of now it is unclear whether the mixes fall under the compilation or computer software categories, but it is the same form. It looks as if both fields apply.

Compilations: ”A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way the resulting work as a whole constitutes an original work of authorship.”

Computer Programs: “A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Copyright protection extends to all the copyrightable expression embodied in the computer program.”

There is no longer a requirement that a copyright notice be included with each copyrighted work. You can include a copyright notice, or you can register the mix with the copyright office. You can copyright every mix on a project with just one form, so it ends up costing $30 per project to copyright your mixes.

But Why?

I just finished an album mix in Pro Tools that took weeks and weeks to mix. It had thousands of little fader moves, mutes, pans, sends and plug-ins. The session documents were so big I could have used them for doorstops. When the project was complete, I sent the hard disk to the record company. We talked about doing surround mixes, but the record company said that we would talk about it later.

Four months later I ran into one of the execs from the record company. I asked about the surround mixes. He said, “We have your mixes. We are just going to recall your mix, spread things around and print it. We are going to do it in-house. We won’t need you for this.” I was taking a sip of my drink, and spit it all over his shirt.

“ WHAT?” I choked. “Those are my fader moves, not yours. You are using my automation to mix a different record. The songwriter gets paid again, the artist gets paid again, the producer gets paid again, the record company gets paid again, but the engineer is dismissed?” His reply was, “Sorry, that is just the way we do it now.”

Thus, I started researching how to protect our mixes. I have heard similar stories from many other engineers. We didn’t really have to worry about this in the past because only the original engineer could completely recall a console and all of the outboard gear. Now, because of digital consoles, Pro Tools, and other totally recallable workstations, anyone can call up a mix and recreate it perfectly.

Postscript

Think about this. In performing this research I discovered something interesting. When a rap artist takes a section from a CD or album to use as a loop, he is taking copyrighted material. This is because the phonorecord (p) is protected by copyright. If he took the lick off of the multi-track tape it is not protected by copyright and nothing could be done about it. Granted, if enough of the song was taken so that the melody of the copyrighted music was infringed upon, then that is another matter. The actual playing on each track of the multi-track tape is not protected unless it is released as a multi-track product. I guess the record companies had better lock up their multi-track tapes real quick.

I can’t wait to see the first court case stemming from this column! If you are smart, you will talk to your own lawyer before you take my advice.
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While Roger is waiting for his Proof of Registration letters to come back from the Copyright Office, he reads government publications about sheep to help him fall asleep at night.