A common issue among musical artists and others involved in the recording process is identifying who owns the copyright in a sound recording that is the result of contributions from many individuals, including headline artists, instrumentalists, background singers, producers, recording engineers, and others. Typically, such issues will be governed by contracts signed by the participants in a recording session. However, in the absence of such an agreement, what is the operative standard?
A recent decision involving copyright infringement claims brought by songwriter and musician Tyler Armes against Austin Richard Post p/k/a Post Malone arising out of the creation of “Circles,” Malone’s smash hit song, illustrates the standards courts use to determine whether a contributor in the studio is entitled to joint authorship of the sound recording for copyright ownership purposes. See Armes v. Post, 2:20-cv-03212-ODW (PJWx) (C.D. Cal. Oct. 19, 2020).
In the pending litigation, Armes claims that he was invited by Malone’s manager to participate in a writing and recording session with Malone in Canada in August 2018. That session resulted in the song that ultimately became “Circles.” According to Armes and as summarized by the court, “Armes made recommendations in his capacity as a producer to: (1) slow down the tempo, (2) strip the song down to just bass, guitar and drums, without the keyboard, (3) play the bass with a pick as opposed to fingers, and (4) apply a reverb effect on the vocals and guitar tracks… Armes alleges his contributions to the organization, instrumentation, arrangement and overall unique sound of the Song are all reflected in the final sound recording of ‘Circles’ that was ultimately released.” Id. (internal quotes omitted). In addition to various procedural issues, the court considered whether Armes had adequately asserted his claim for joint authorship of the “Circles” sound recording.
In the Ninth Circuit, a joint work requires each author to make an independently copyrightable contribution’ to the disputed work. Moreover, under Ninth Circuit precedent, courts look at three factors to determine if there is joint authorship: (1) whether an alleged co-author exercised control over creation of the work, (2) whether all co-authors made objective manifestations of a shared intent to be coauthors, and (3) whether the audience appeal of the work turns on each coauthor’s contributions and the share of each in its success cannot be appraised.
Here, the court found that Armes failed to adequately allege facts relevant to “the most important factor,” namely, whether he supervised and controlled the recording session for “Circles.” Nor did Armes adequately assert that he made an independently copyrightable contribution to the recording. Consequently, the court dismissed Armes’s copyright infringement claim relating to the recording, with leave to replead. (Armes’s infringement claim relating to the musical composition survived.)
The Armes case is a reminder that mere participation in the creation of a collaborative work subject to copyright is not tantamount to a claim for joint authorship. To bring a successful claim, the plaintiff must plausibly allege facts sufficient to establish that his or her contribution was independently subject to copyright, that he or she exercised control over the work, that there was an intent to be co-authors, and that he or she contributed material elements that resulted in enhanced audience appeal.