3.0 The Record Producer’s Rights

3.1 Financial Entitlement

The record company will usually take the convenient view that the producer has no rights in the recordings. It is precisely for this reason that the record company is rather relaxed about allowing the work to proceed despite the fact that there is no signed contract. So far as the record company is concerned the producer has no rights other than the right to be paid for his work. This entitlement will be to receive such payment as may have been agreed. If there is confusion over what has been agreed, then nevertheless the producer is entitled to be paid on what is known as a quantum meruit basis i.e. a fair and reasonable payment for the work done.

3.2 The “Maker” of the Recordings

So far as the record company is concerned, it is the “maker” of the recordings so that the record company is the owner of the copyright in those recordings. The record company does not require any performers consents from the producer because his “performance” is not (usually) featured upon the recordings. Nor has the producer (usually) contributed to the writing and/or composing of the musical material featured upon the recordings so that the producer has no interest in that material. Accordingly, the record company would argue, there is nothing the producer may do to prevent the company exploiting the material (beyond suing for payment). Any threat on the part of the producer to hold the company to ransom over his deal by threatening to make an application for an interlocutory injunction preventing the release of the recordings is likely to be ineffective.

3.3 The Producer as “Maker”

In fact, there is an argument to the effect that the producer does have an interest in the recordings so that the record company is perhaps being dangerously complacent.

Under the provisions of the Copyright Act 1956 the person owning the copyright in a recording was the person commissioning that recording. The position changed with the introduction of the Copyright Designs and Patents Act 1988 under which the owner of the copyright is the “person by whom the arrangements necessary for the making of the recording are undertaken”. This is generally taken to be the record company but an arguable case may sometimes be made by the producer that he is the person making the arrangements in question.

3.4 Assignment of Rights

A prudent record company would, therefore, ensure that prior to commencement of recording the producer makes an unequivocal assignment in writing of his interest (if any) in the recordings. If the record companies were to recognise such a requirement this might introduce a note of greater urgency into the whole negotiating process.