During the COVID-19 pandemic, many musicians have turned to live streaming shows. But if you are signed to a label, it’s important to pay attention to whether your live streaming plans run afoul of re-recording restrictions in your record deal.
What are Re-Record Restrictions?
A typical recording contract covers a record label’s rights in a so-called “master recording” of a composition. In a simple case, a band writes a song, and then a record label signs them in order to secure the necessary rights to release a recording of that song. That means that the record label either owns the master recording, or they have a license to exploit it.
Because a label’s primary rights are in respect of a master recording and not the composition itself, a re-recording could create an alternate version of the song that the record label doesn’t own or control. That’s why a record deal often includes re-record restrictions. Usually, these restrictions expire at some point, allowing an artist to re-record their music (like Taylor Swift is currently doing).
What do Re-Record Restrictions Look Like?
They can take many forms (they don’t even always say “re-record,” but one example might look something like this:
Artist shall not record, re-record, use, exploit or release for commercial sale, broadcast or communication any musical composition that is embodied in a master delivered under this agreement during the term of this agreement…
What do Re-Record Restrictions Have to Do with Live Streaming Shows?
A record deal will almost never restrict a band’s ability to perform their songs live at a music venue – nobody has an interest in that happening. The record label is typically worried about alternative recordings of songs existing – ones that would compete with their master recordings. This could, for example, include a ‘live’ record of the same recordings.
When you perform a live streaming show on, for example, Facebook, the live streaming part of the show might be fine, depending on the language of your re-record restriction. (But if your re-record restriction reads like the language above, you should consider whether the Facebook show means you are ‘using’ or ‘exploiting’ a composition for ‘broadcast’ or ‘communication’.)
But Facebook also usually keeps a recording of the performance that can be watched later – that’s where another problem arises. Now a new recording exists of the composition, and that is almost certain to run afoul of many re-record restrictions.
What Can We Do?
A breach of a record contract can have far reaching effects, including triggering termination provisions. Artists that are signed to deals that include re-record restrictions should consider seeking consent from their record labels before playing live streaming shows that could otherwise be in breach of their record deals.