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Audio Engineer's Rights - Law School Project Request
Old 18th April 2017
  #1
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Audio Engineer's Rights - Law School Project Request

Hey Gearslutzers,

I’m currently finishing my second year of law school in NC focusing on music industry contract and copyright law. I’m doing a project on the audio engineer’s role as a creative contributor in the advent of modern recording mediums. I’m coming to you to see if I could get some help in one element of my demonstration.

Here is a little background on the project:

I’m working on a project to educate about the role of audio engineers as creative contributors in the advent of modern recording mediums and advocate for the recognition of those contributions. Copyright and the Music Marketplace, a 245-page document published in 2015 by the U.S. Copyright Office, which purports to be the result of “an exhaustive analysis of industry practices,” mentions audio engineers only one time, and only in relation to the description of NARAS. I consider this an important issue and believe that audio engineers should not be treated as a non-entity by their regulating bodies.

NARAS stated in their letter to the Copyright Office, in preparation of Copyright and the Music Marketplace, that studio professionals were not adequately represented in policy discussions with the Copyright Office and Congress during the formation of the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”). Studio professionals are likely to continue being underrepresented in policy discussions if the Copyright Office can simply ignore their existence as contributors. The Copyright Office itself has recognized a fundamental need for the restructuring of copyright, and public/professional outcry for reform is reaching an impressive level. Recognition is needed so that when the issue does come to a head, and reform is actualized, engineers can have a seat at the table.

One factor in showing a recognizable contribution is that the commercial viability of a work is derived from the contributions of both the artist and the engineer. (Of course, there are engineers who work more in a documentarian way, or where a producer/artists makes all of the specific creative decisions. However, that is covered in a different area of my project and outside the scope of this request).

The request:

I’m hoping that an engineer will be willing to provide me with the virgin/raw tracks from one of their projects, along with the corresponding finished product (mixed or mix/mastered). This will be used for educational purposes during a presentation at a law school for several aspiring entertainment attorneys about the role of an audio engineer and the engineer’s potential protectible contributions. A production company has donated the use of a PA, mixing console, and an engineer for the presentation. We will make every effort to present your work in the best possible light.

Any help would be greatly appreciated. I’m happy to destroy an instance of the tracks by whatever protocol you deem fit at the completion of the presentation.

Best regards,
Philip McCabe
NCCU School of Law
Class of 2018
Old 18th April 2017
  #2
You are assuming (and asking, I guess) that one engineer is the sole entity that is responsible for the final product from track recording to the final master. In other words, this person would be performing several roles: Tracking engineer, producer, mixing engineer, and mastering engineer. Not that you couldn't find this person, but I just wanted to point that out.

Also, a good engineer will know how to capture the best performance in the raw tracks, which is something that will not be revealed in your methods. In other words, you are not comparing how it would sound if a non-engineer would take that role instead. Many more artists themselves are taking that role these days, for example. Not that all artists are not engineers; some are.
Old 18th April 2017
  #3
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Quote:
Originally Posted by Aural Endeavors View Post
You are assuming (and asking, I guess) that one engineer is the sole entity that is responsible for the final product from track recording to the final master. In other words, this person would be performing several roles: Tracking engineer, producer, mixing engineer, and mastering engineer. Not that you couldn't find this person, but I just wanted to point that out.

Also, a good engineer will know how to capture the best performance in the raw tracks, which is something that will not be revealed in your methods. In other words, you are not comparing how it would sound if a non-engineer would take that role instead. Many more artists themselves are taking that role these days, for example. Not that all artists are not engineers; some are.
For the purposes of demonstration in my project, it doesn't matter whether a single person satisfied all of those roles, but merely a demonstration of the affect of the intellectual property that is imparted on a work from beginning until end. There are multiple arguments for protections of specific contributions at the various levels (tracking, mixing, producing, mastering) and where one might overlap into the contributions of another. For the purposes of this specific part of the demonstration, it is in order to show an A/B before and after to a group of students who at the beginning of the semester didn't even know what an audio engineer was or what anything besides a final product sounds like. Aspects of each individuals contributions, and potential overlapping roles, are discussed elsewhere in the presentation.

Comparing how it would sound if a non-engineer took the role of a tracking engineer has little bearing on this method of analysis. For my purposes, the argument for recognizable contributions of a tracking engineer is better made by analogizing the choices of a tracking engineer (microphone selection, placement, pre-amp selection, environment orientation, ect.) to already copyrightable interests in photography (see Phil Hill's article in Harvard Journal of Law and Technology "Fix it in the Mix").

Thank you for your input! I enjoy discussing this topic greatly.

Do have any tracks you would allow me to use for those purposes?

-PM

Last edited by AudioEngineerLaw; 18th April 2017 at 05:29 PM.. Reason: typo
Old 18th April 2017
  #4
Quote:
Originally Posted by AudioEngineerLaw View Post
Do have any tracks you would allow me to use for those purposes?
Possibly, but I would need artist approval first, so I can't guarantee it.

Another option you may consider, which would be easier, is to obtain a raw two-track mix file instead of individual tracks. I have such mixes from a project I am currently working on that sound radically different from the final mixes.
Old 18th April 2017
  #5
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Quote:
Originally Posted by Aural Endeavors View Post
Possibly, but I would need artist approval first, so I can't guarantee it.

Another option you may consider, which would be easier, is to obtain a raw two-track mix file instead of individual tracks. I have such mixes from a project I am currently working on that sound radically different from the final mixes.
That would work great as well! (Honestly I just figured transferring the raw tracks would be easier on you guys so you didn't have to worry about a mixdown - I understand that you'd be doing me a favor and that you're very busy people)

I totally understand getting artist approval - I would do so if I were the engineer as well.

-PM
Old 19th April 2017
  #6
In Ward v. Rock Against Racism, No. 88-226, the U.S. Supreme Court ruled that New York City could force a band to use a government-paid audio engineer for city-sponsored outdoor events to control the SPL level of the show. Diminishing the role of the band's own engineer, New York City's lawyer said that ''He's really a technician''.

The court basically ruled that the city could stick any monkey in the role of engineer.

No matter how you demonstrate the creative affect of audio engineers, we will always be considered second-class citizens in the music business. And no one will be willing to give us a slice of the royalties.

It's ironic that NARAS said that engineers weren't properly represented in Copyright discussions, when NARAS doesn't even bother to acknowledge "The Science" part of their membership in the dreadful GRAMMY show...
Old 19th April 2017
  #7
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Quote:
Originally Posted by Timothy Powell View Post
In Ward v. Rock Against Racism, No. 88-226, the U.S. Supreme Court ruled that New York City could force a band to use a government-paid audio engineer for city-sponsored outdoor events to control the SPL level of the show. Diminishing the role of the band's own engineer, New York City's lawyer said that ''He's really a technician''.

The court basically ruled that the city could stick any monkey in the role of engineer.

No matter how you demonstrate the creative affect of audio engineers, we will always be considered second-class citizens in the music business. And no one will be willing to give us a slice of the royalties.

It's ironic that NARAS said that engineers weren't properly represented in Copyright discussions, when NARAS doesn't even bother to acknowledge "The Science" part of their membership in the dreadful GRAMMY show...
I'm familiar with the case - I believe it was more of a First Amendment issue of time, place, manner restrictions rather than being intended to define the role of audio engineers.

I agree with you that engineers are currently poorly-regarded. I believe the first step is changing that conception before even going into royalties discussions. However, I believe time is running out for such a change of perception as copyright reform seems imminent in the coming years.

Someone was nice enough to volunteer to send me some tracks tomorrow. Thank you all for your input and the gracious offers to help! I have felt very welcome on this site!

I continue to be interested in your views on the role of engineers and legal issues they face.

-PM
Old 19th April 2017
  #8
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Quote:
Originally Posted by AudioEngineerLaw View Post
I believe the first step is changing that conception before even going into royalties discussions.
I'd say no. I'd say royalties spur the discussion of "worth" not a vague changing of a conception. Quite frankly, a mixer can negotiate a producer credit if they want a slice of the pie. God knows no-talent singers (and their management) negotiate a part of the writing credit for songs they only sing. The fact that legal documents are signed and yet there is tons of openly passed around documented-proof in communication that people are taking royalties that shouldn't and no one is willing to take that to court shows just how screwed the royalty payment system is.
Quote:
Originally Posted by AudioEngineerLaw View Post
However, I believe time is running out for such a change of perception as copyright reform seems imminent in the coming years.
I would be rich if I got a dollar for the number of times in the last 15 years I've heard about this imminent copyright reform.
It will happen. It isn't happening fast. It will be "reformed" again.
Old 19th April 2017
  #9
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This is an interesting idea.
As you pointed out in the OP, every situation the AE will have a different level of contribution... And I think you may end up with a scale that is inverse to the engineers contributions.
For instance... High school punk band goes into garage studio... Engineer has to replace three drum heads tune the kit, set up a guitar, and ghost three of the bass lines on the EP. This was my life for years.... And the end product still sucked.
Allison Krause and union station have all the best working with them, gods of the technical side... But without any of that they can sit in a circle and the song will be just as perfect as all the polishing in the world can make it. Perfection showed up... The AEs contribution does little to advance the song.

The latter clearly earned the right to be there... Yet due to working with talented people has little room to effect the outcome. Seems like this would be hard to quantify.
The artist can negate the engineer or make them everything that made a turd listenable. How could one account for this in a manner that could be written in law?
Old 20th April 2017
  #10
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tedtan's Avatar
 

I think the biggest hurdle you'll face in your project is the fact that the engineer, whether playing a role in tracking, mixing, or mastering, is delivering a work made for hire and any creative contributions s/he made to that work are owned by the entity paying for the work (the artist, the record company, an ad agency, a TV or radio station, etc.).

And, to be frank, I don't see that changing in the near future.
Old 20th April 2017
  #11
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KRStudio's Avatar
 

I agree with the post above this. Much like asking a building contractor to have part ownership of the building because he helped make it. Work for hire is not cause for ownership also "unless" there is a special reason for it worked out ahead of time by both parties. It should not be the norm.
Old 21st April 2017
  #12
Quote:
Originally Posted by tedtan View Post
I think the biggest hurdle you'll face in your project is the fact that the engineer, whether playing a role in tracking, mixing, or mastering, is delivering a work made for hire and any creative contributions s/he made to that work are owned by the entity paying for the work (the artist, the record company, an ad agency, a TV or radio station, etc.).

And, to be frank, I don't see that changing in the near future.
And as one of those people who mainly does work in this capacity....I'd rather see decent training, engineering rates and proper pay for assistants than worrying about Monopoly money royalties.

I've got producer points on albums; nothing's paid out yet. I've done plenty of projects where as the tracking engineer on a relatively low rate, I've still made more cash than the producer, even when the producer has a decent amount of points.

I'd much rather the client pay my full rate and pay for an assistant without haggling than have a royalty on an album, even if long term the album does ok.

Ask me again if I've engineered a multi-platinum worldwide selling album...
Old 21st April 2017
  #13
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^^^^^^
Why not both?
There are up-front fees and costs and there is long-term royalties.
(much like other groups in the entertainment arts -- composer writing fees + royalties, screenplay writer fees + long term, etc)
Old 21st April 2017
  #14
Quote:
Originally Posted by pentagon View Post
^^^^^^
Why not both?
There are up-front fees and costs and there is long-term royalties.
(much like other groups in the entertainment arts -- composer writing fees + royalties, screenplay writer fees + long term, etc)
Thank you for resisting the opportunity to meme

That's true, but maybe in that case I'd say I'd rather have a higher day rate and no royalty, than get promised some money I then have to think about keeping a log of and possibly auditing some time in the future.

most of the time, unless you're consistently mixing or engineering the biggest bands (in which case the CLAs of this world often charge a couple of points anyway - in fact I once heard that you can pay LESS if you use the mix, as opposed to if you don't - because of the royalty factor. Presumably only applies to the Green Days of the client list, but still), you're never going to see a post-recoupable royalty, so the money is fictional. Give me more upfront!
Old 21st April 2017
  #15
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I'm no expert, but this talk needs to divided into copy write C and P. The copy write P over the recording is the only thing you are talking about right?

Are you trying to make a case for a fixed % going to the Engineering side of that? However that get divided up becomes another detail.
Old 21st April 2017
  #16
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Audio engineer's rights? They have the right to remain silent ...
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