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Hiya.
The short answer is you need to speak to the bloke who’s selling it,
if nothing else.
You are due royalties as an artist and as a
composer, so at the very least you need to settle your share of the
proceeds.
Here’s how UK copyright works:
The song is easiest. By writing the lyrics you are a
co-creator, and no-one call sell your song without at least settling with
your publisher (who is the publisher?). If you elect to be published by
the MCPS, they are very hot on people defrauding their members and can
injunct the band or individual 'the seller' (and fine him/them) if he’s not paying mechanical royalties
(which he probably isn’t).
Now if you don’t like the idea, and it sounds like you don’t, you
could shut him down fairly easily, if you wrote, or co-wrote, the
material.
Leaving aside the songs, he owns the physical tape / master / cassette /
CD, whatever the music is recorded on to, just by having it.
However, he doesn’t own the musical performances of all the people in
the band performing on it, unless he can produce a signed contract saying
so.
(You may have signed one in the past.. check your files).
If you have a contract of sorts with him, I doubt whether it would include
live tapes off the sound desk, so the issue is how to stop him if you want
to.
If you’re really opposed to him doing it, you will have to write to him
telling him he has no rights, then invoke the MCPS as above.
These things are hard to stop, however, so it might be better to ask to
get paid in the usual way.
The law covers the Mechanical Royalty. You check out the MCPS / PRS
website, but basically all the songs on the CD / whatever would be subject
to payment across all of them at a flat rate of (I think) 9% of the Dealer
Price.
Therefore if you can establish the dealer price, (or even estimate it at,
say, 70% of what he’s selling it at), and if it was, say, £7.00 UKP,
and if there were 10 songs on the CD, then the publisher of each song
would be due 70 pence. Your share of each song would be between you and
your co-writer(s), but usually lyric writers get half.
It may be that the WRITERS take a different views and you have to take a
fifth, or whatever, but certainly as above, you, or your publishers, are
due some mechanical royalties. Unless of course you are un-recouped with your publisher, in which case the
sum will be due to them, and will count against the un-recouped balance.
Re: your share as recording artist, if you want the sales to go ahead, and
get your share, you have to:
-
establish the Dealer Price
-
agree an Artist Royalty. Let’s say an average
royalty these days would be 15% of the Dealer Price with no packaging
deduction.
-
agree that all the performing artists on the CD /
tape / whatever will share the same royalty equally.
So if there’s 5 of you
in the band, you’d be due 3% of the Dealer price of every
CD sold – or whatever.
-
Get an estimate from him of how many CDs he has
sold, and add to that the amount he’ll sell in a
year. Then ask for an advance in
respect of the royalty due.
Bear in mind that he’s probably sold no more than 500, so the amounts
involved due to you are possibly pretty small. NB – if he’s licensed
studio tracks legally from Virgin, you’d have to go to Virgin/EMI for
your artist’s royalty, but the Mechanicals would still be due from 'the
seller' to your publisher.
Notwithstanding all the above, tell him he has no rights in your
performance of the material and you’d like to discuss joint ownership of
it. Or reversion of ownership to you if you really want it. (If you can
establish he doesn’t have any specific rights to these specific
performances, tell him you’re prepared to LEASE him the rights for a
period of time – say 5 years – after which time you will retain the
rights and no more CDs can be sold unless you negotiate a further term).
But if there’s 3 or 4 of the band and just one singer, plus they retain
the name, it’s arguable that they have more of a moral right to
retaining the tapes than you.
However they don’t have ANY right to sell material with your performance
on it without striking a deal with you, and paying you royalties on it.
If you just want them to stop selling the material completely, you have to
write to them informing them that they have no rights, ordering them to
cease and desist, and threatening them to sue for damages.
THEN put the MCPS on them if they don’t stop, THEN hire a music business
lawyer to sue them, THEN wait 5 years, THEN pay a large legal bill, THEN..
give up.
Hope this was helpful,
Andy xx
PS – Let me know what you decide to do..
It does seem to me that you
might be better off establishing a friendly relationship with The
Band, since the alternative might be for them to slag you off endlessly,
which you couldn’t prevent at all..
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