Who owns a record: masters, publishing, and why they are two different things

Short answer: a song you can hear is almost always two copyrights, owned by two different sets of people, earning money through two entirely separate systems. When someone says they own their masters, they are describing one of the two. The other one — publishing — is frequently worth more, and is more often the thing that got signed away without anyone noticing.

Most fights I see between artists, producers and labels are not really fights about who did what. They are fights in which one side has been talking about one copyright and the other side has been talking about the other.

Every recording is two works

The Copyright Act lists musical works at 17 U.S.C. § 102(a)(2) and sound recordings at § 102(a)(7). Different authors, different acts of fixation, two copyrights.

The Copyright Office states it without hedging: "Sound recordings and musical compositions are considered two separate works for copyright purposes," and a copyright in a sound recording "is not the same as, or a substitute for, copyright in the underlying musical composition."

The musical work — the composition, the song, what the industry calls publishing — is the melody, harmony, rhythm and lyrics. It exists the moment it is fixed, whether or not anyone ever records it.

The sound recording — the master — is one particular fixed performance of that song. The Copyright Office uses Aretha Franklin's "Respect" as its own example: the recording and the composition underneath it are two distinct works.

Record a cover of a song you did not write and you have created a new sound recording that you may own, sitting on top of a musical work you do not own at all.

Who owns each one at the start

Copyright vests initially in the author, and the authors of a joint work are co-owners of the copyright. That is § 201(a). A joint work, under § 101, is one prepared by two or more authors intending their contributions merge into "inseparable or interdependent parts of a unitary whole."

The candidates differ for each of the two works. The Copyright Office identifies the authors of a musical composition as composers, lyricists and songwriters — and the authors of a sound recording as performers, producers and sound engineers.

Two cautions on that second list, because it gets over-read in both directions.

First, it is Copyright Office guidance, not a holding. Circular 56A includes sound engineers; several other Office materials list only performers and producers. Purely technical capture is a thin basis for an authorship claim and I would not want to argue it.

Second, and more importantly, contributing to a record is not the same as being a joint author of it. In the Second Circuit — which is where a New York dispute lands — Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991), requires more than an intent that the contributions merge. It asks whether each participant intended that all of them "would be identified as co-authors." A useful test, the court said, is exactly that. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998), applies the same framework.

So the honest statement of the default is this: the producer who shaped your record may have a joint authorship claim to the master, and even a weak claim is enough to stall a delivery. Not that they automatically own half. The point is not to predict who wins. The point is that nobody should be finding out during diligence.

The money runs down two separate pipes

This is where the abstraction becomes a bank balance.

What the composition earns. Mechanical royalties when the song is reproduced. Section 115 provides the compulsory license for nondramatic musical works, and the Music Modernization Act built a blanket license on top of it covering digital phonorecord deliveries — permanent downloads, limited downloads and interactive streams — administered by the Mechanical Licensing Collective. The MLC collects and distributes mechanical royalties for musical works. It does not touch sound recording money. The composition also earns public performance royalties under § 106(4), collected through the performing rights organizations, and sync fees when the song is paired with picture.

What the recording earns. Here the statute does something unusual. Section 114(a) provides that the exclusive rights of a sound recording owner "are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4)."

So the master gets reproduction, derivative works, distribution, and — under § 106(6), added in 1995 — public performance by means of a digital audio transmission. That last right is what SoundExchange administers for statutory non-interactive digital services. SoundExchange pays 50 percent to the sound recording rights owner, 45 percent directly to the featured artist, and 5 percent into a fund for non-featured performers. The master also earns master use fees when the recording is licensed to picture.

The reproduction and derivative rights in a master are narrower than they sound. Section 114(b) limits them to the actual sounds fixed in the recording, and provides that they "do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording."

Read that twice if you make records. A deliberate sound-alike re-recording does not infringe the master. It may still be a problem on the composition side, and it may raise right-of-publicity questions if a voice is being imitated — but the sound recording copyright is not the tool that stops it.

The gap nobody expects: US radio pays one side only

Put § 114(a) and § 106(4) together and you get a result that still catches working musicians off guard.

When your record plays on terrestrial FM radio in the United States, the songwriter's side gets paid through the PRO. The featured artist and the owner of the master get nothing from that spin. There is no general public performance right in a sound recording in this country.

If you want one clean illustration that masters and publishing are genuinely different assets rather than two words for the same thing, that is it.

Three places the distinction bites

A cover. You need the composition. You do not need anyone's master — you are making your own. Section 115 is why a cover does not require the songwriter's or publisher's permission. Two limits worth knowing. The compulsory license generally requires that phonorecords of the work "have previously been distributed to the public in the United States under the authority of the copyright owner of the work, including by means of digital phonorecord delivery" — § 115(a)(1)(A)(i) — with a separate route at clause (ii) for digital music providers. So you cannot use it to be first to release someone else's unreleased song. And under § 115(a)(2), the arrangement you make "shall not change the basic melody or fundamental character of the work." A radical reharmonisation is not a cover; it is a derivative work needing permission.

A sample. Clear both. You are copying an actual recording — the master — and the composition embodied in it, and clearing one is not clearing the other. Be aware the law here is genuinely split: the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), rejected a de minimis defence for sound recordings, and the Ninth Circuit in VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), took "the unusual step of creating a circuit split by disagreeing with the Sixth Circuit." Your exposure depends on where you get sued. Clear both anyway.

A sync. A film, an ad or a game needs a master use license from whoever owns the recording and a sync license from whoever controls the composition. This is why "one-stop" is a selling point in sync catalogues — it means a single party can grant both, and the music supervisor does not have to run two negotiations against one deadline. If you control both sides of your own record, say so when you pitch. It is worth money.

"I own my masters" is a smaller claim than it sounds

It is a real claim and worth making. It is just not the whole estate.

Section 201(d)(2) makes the point structurally: any of the exclusive rights in a copyright, "including any subdivision of any of the rights specified by section 106, may be transferred… and owned separately." Copyright is divisible almost without limit. Masters and publishing are two piles, and each pile can be sliced further — by territory, by term, by use.

Which means the artist who fought hard to keep their masters and signed a standard publishing deal without reading it has kept one asset and traded the other. And an artist who owns the master to a song someone else wrote does not have a record they can freely exploit — they have half of one.

The clause that decides ownership, and why it often does less than it says

Open almost any recording or producer agreement and you will find language stating that the recordings are works made for hire.

Section 101 gives exactly two routes. Either the work is prepared by an employee within the scope of employment — or the commissioned route, which has three requirements stacked together. The work must be specially ordered or commissioned; it must fall within one of nine enumerated categories; and "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

The nine categories are: a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.

A sound recording is not on that list.

Congress briefly put it there in 1999 and took it back out in 2000 in the Work Made for Hire and Copyright Corrections Act, Pub. L. 106-379 — with an unusual rule of construction directing that neither the addition nor its deletion "shall be considered or otherwise given any legal significance," and that the paragraph be interpreted as if neither amendment had ever been enacted. Congress declined to answer the question. It is still unanswered.

The Copyright Office is blunt about the consequence of missing any requirement: "If a work fails to satisfy any of these requirements, it is not a work made for hire."

So a work-for-hire clause signed with an independent producer or a session player — someone who is plainly not an employee — is doing less work than its confident drafting suggests. Which is why well-drafted agreements do not rely on it alone. They pair it with a present-tense assignment: language transferring the copyright outright if the work-for-hire characterisation fails. Same belt-and-suspenders structure that shows up in commissioned-work agreements generally, for the same reason.

If your agreement has the work-for-hire recital and no assignment behind it, you have a gap. Find out now rather than during diligence.

Termination: the 35-year door

Here is why the paragraph above is not academic.

When a work is a work made for hire, § 201(b) makes the employer or commissioning party the author — not merely the owner. That is the mechanism. If someone else is the statutory author, you never made an author's grant, and there is nothing to take back.

When it is not a work for hire, § 203 applies. An author may terminate a grant they executed on or after 1 January 1978 during a five-year window opening 35 years after execution — or, where the grant covers the right of publication, at the earlier of 35 years from publication or 40 years from execution. Notice must be in writing, served not less than two and not more than ten years before the effective date, and recorded with the Copyright Office. Termination may be effected "notwithstanding any agreement to the contrary." You cannot sign it away in advance.

Three qualifications that decide real cases:

• Co-written songs need a majority. Under § 203(a)(1), where a grant was executed by two or more authors of a joint work, termination "may be effected by a majority of the authors who executed it." One co-writer alone cannot do it.

• Derivative works survive. Section 203(b)(1) lets a derivative work prepared under the grant before termination "continue to be utilized under the terms of the grant after its termination," though no new ones may be prepared. This is the first thing the other side's counsel will say, and in a masters context it matters enormously.

• Pre-1978 grants are a different statute. Section 203 does not reach them. Older catalogue runs through § 304(c) and (d), on different timing.

What to actually do

Register them separately and know which is which. They are two copyrights and they get two registrations. Registration is not how you get the copyright, but it is how you enforce it, and the timing carries consequences.

Do the splits in writing at the session. Not after the record does something. The conversation is easy when nothing is at stake and impossible when something is.

Read past the work-for-hire recital. Look for the assignment behind it. If it is not there, that is the negotiation.

Know which pile you sold. Before you tell anyone you own your masters, be able to say who owns the publishing — and if the answer is "I'm not sure," that is the first thing to find out.

Sources: 17 U.S.C. § 101 · 17 U.S.C. § 102 · 17 U.S.C. § 106 · 17 U.S.C. § 114 · 17 U.S.C. § 115 · 17 U.S.C. § 201 · 17 U.S.C. § 203 · 17 U.S.C. § 304 · Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. 106-379 · Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) · Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) · Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) · VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016) · U.S. Copyright Office, Circular 56A, Copyright Registration of Musical Compositions and Sound Recordings · U.S. Copyright Office, Circular 30, Works Made for Hire · U.S. Copyright Office, Music Modernization Act FAQ · SoundExchange, Digital Performance Royalties