General information about music law
Music law regulates the legal relationships between musicians, lyricists, composers, managers, concert promoters, music publishers, labels, music producers, distributors, Internet providers, collecting societies, and users. Because music is an immaterial property, copyright law provides the legal foundation for the production and exploitation of music. Copyright law regulates the rights of authors (of lyrics, compositions, and arrangements), performing artists (e.g., singers, musicians), recording companies, concert promoters, TV stations, and other participants. In addition to copyright law, publishing law (regulating the legal relationship between authors and music publishers) and the law regulating collecting societies (VGG) are of importance.
Important principles of music law
It is important to understand the difference between copyrights and neighboring rights in German copyright law:
Only the authors of works of literature, science, and art acquire copyrights in the area of music; these are the authors of lyrics, the composers of musical works, and the authors of adaptations of such works (e.g., translators, arrangers). Copyrights are not transferable during the lifetime of authors. Authors may only grant certain rights of usage to their works to others; the copyright always remains with the authors.
In addition to copyrights, German copyright law protects so-called “neighboring rights.” These rights protect certain contributions to the shaping or production of works. These contributions can be of an artistic, organizational, or economic nature. Such contributions are, for instance, the performance of a work by a musician during a concert, the recording of a work by performing artists and a record producer, or the broadcasting of a recorded work by a TV station. In contrast to copyrights, neighboring rights can be transferred as a whole to third parties. In addition, the owners of neighboring rights may only grant rights of usage to third parties.
It is important to understand the distinction between copyrights and neighboring rights when you enter into contracts with respect to musical content. Very often, separate contracts have to be concluded with the two groups of rights holders (copyright owners and owners of neighboring rights). If, for instance, a film producer wants to include a music recording in a film, the producer needs to have a license from the authors of the musical works (or from the music publishers holding these rights) and the owners of the rights to the sound recordings (usually the producers holding these rights).
Important contracts in music law
At the beginning of a musical career, musicians should consider entering into a group contract. If two or more musicians join together in order to perform music, they automatically form a general partnership under German law (GbR). Nevertheless, such groups should enter into a written agreement. Many important aspects are not regulated by the law of general partnership under the civil code. If members leave the group or all the members decide to dissolve the group, there may be disputes about the immaterial rights (in particular rights to the band name or demo recordings made). Further problems may arise if musicians produce music videos containing cover songs (musical works composed by other authors) and make such videos available to the public via the Internet (e.g., on YouTube). In Germany, the necessary synchronization rights for the production of music videos can generally not be acquired from the collecting society GEMA. The authors of the original works (respectively, the music publishers of such authors) have to approve such use.
Later in the career, the band may enter into recording contracts with producers or labels. Generally, musicians may enter into exclusive recording artist agreements or licensing agreements. In a recording artist agreement, the artist (or band) is bound to a producer exclusively for several years or albums. The producer produces the sound and picture recordings at his/her own expense and risk. Because the producer assumes the complete economic risk of the project, artists must agree to certain limitations of their artistic and/or economic freedom. However, producers must take care that contracts are not too one-sided and therefore unethical and illegal. More freedom is granted to an artist under a licensing agreement. In such an agreement, the artist produces and owns the recordings but licenses them for distribution exclusively to the label. While recording artist agreements generally provide for a transfer of all neighboring rights to the productions for the entire duration of such rights, licensing agreements have a limited term (e.g., 10 years). Any artist who is also the author of the works performed should think twice about entering into music publishing contracts, in particular, if the publishing company is affiliated with the music producer to whom the artist is contractually bound under the recording artist agreement.
Very important for performing artists are good management and agency contracts. Many legal questions have to be considered here, in particular, the law governing general terms and conditions (AGB), if managers and/or agents use their model agreements for artists. The same is true for contracts in the live business. In particular, engagement contracts for single concerts are usually based on model agreements and contain general terms and conditions. General terms detrimental to an artist can often be invalid. In contrast to single engagement contracts, tour contracts are generally negotiated in detail by the lawyers of the parties. In these contracts, difficult questions may arise with respect to the production of concerts, bearing of costs, payment of fees and profit participation, and, last but not least, the cancellation of concerts.
The law office of Dr. Hans-Jürgen Homann can advise you on all relevant questions and on drafting all the necessary contracts. I would be glad to talk to you about your legal needs