Drummer quit but can I record his drumbeats?

[rabid_granny]

My drummer walked out on our band last year but the guitarist and I are still very good friends. I have the opportunity to record at a professional recording studio for nothing (yay for connections) but I'm not sure how to approach the drum beats. The drummer did not contribute anything melodically or lyrically. He did play very interesting drum beats that fit the music though. He can't read music, never really understood song structure and could play in time though. If I got another drummer to play his drumbeats and fills, would I owe him anything, should I actually make some money from the recordings?

Oh, one snag. We recorded an EP before and listed the music as written by the band. The band members were listed. If I understand music law correctly, drumbeats are still not considered as contributions towards songwriting though.

 

[john_g]

I wrote a bunch of stuff with a drummer years ago that I just recently decided to dust off. He was an incredible drummer and played some great stuff on my songs, but a total flake and I havent seen him in years. I programmed what he played into my recording software and plan on presenting it to a new band I am forming.

I am no law, talking, guy ...but I think the law revolves mostly around the melody and chord progressions, not necessarily the drums (although I guess if it was a complete, signature drum line that MADE the song, it would probably be different) I wouldnt worry too much.

 

[MonetBass]

If you used recordings of him playing, then yes, you'd have to pay him (technically). But if you have another guy playing his parts, then no, you don't owe him a dime.

 

[hunta]

You can't copyright a beat. If you could then every rock drummer in the world would owe money to the John Bonham family and Ringo Starr As long as it isn't him playing it you're fine.

 

[Inflin]

If it ain't him playing it on the record, you don't owe him a penny.

 

[JmJ]

How would you feel if a band you left was using still your bass lines without crediting you? If the drum line is that important to the song & you want to continue using them then guess what, (s)he deserves a part of the songwriting credit.
If you don't feel comfortable with this the easy answer is to have the new drummer write his own parts.
It's kind of sleazy to harvest parts from some one & call yourself the composer of the song.

 

[agreatheight]

Oh, one snag. We recorded an EP before and listed the music as written by the band. The band members were listed. If I understand music law correctly, drumbeats are still not considered as contributions towards songwriting though.

Yeah, you screwed yourself a little, giving him credit before. You'll likely need to give him credit again. But I am not sure... As for payment, I am not sure again.

 

[etoncrow]

I played drums long before I took up the bass and I agree in principle with JmJ. But, from a historical perspective here are two songs from two different eras, both with signature drum parts where the drummer gets no credit for his input:

"Wipeout" - recorded by the Safaris; written by Morton Downey Jr

"Sunshine of Your Love" - recorded by Cream (Ginger Baker on drums); written by Eric Clapton, Jack Bruce and Pete Brown

I am sure there are others...

 

[epsilonbass]

Why play "his" drum beats?? Any competent drummer should be able to hear the song and come up with something. If they don't come up with something that fits the song find another drummer. But there's only so much a drummer can do, and its going to sound generally the same. If you have a previous recording of the old beat, let the new drummer hear it as a point of reference, but will probably have a take of his/her own on it.

 

[Music Attorney]

My drummer walked out on our band last year but the guitarist and I are still very good friends. I have the opportunity to record at a professional recording studio for nothing (yay for connections) but I'm not sure how to approach the drum beats. The drummer did not contribute anything melodically or lyrically. He did play very interesting drum beats that fit the music though. He can't read music, never really understood song structure and could play in time though. If I got another drummer to play his drumbeats and fills, would I owe him anything, should I actually make some money from the recordings?

Oh, one snag. We recorded an EP before and listed the music as written by the band. The band members were listed. If I understand music law correctly, drumbeats are still not considered as contributions towards songwriting though.

Under U.S. law, there are two sets of copyrights at issue here. The first one is the copyright in the individual musical compositions. Because I’ve written about this elsewhere on this site, I’m going to keep my answer relatively short. The bottom line is that the copyright in a musical composition subsists in the melody and lyrics. Therefore, by law, the drummer did not make a copyrightable contribution to the compositions.

HOWEVER, in some instances, the copyright in musical compositions can be divided up among writers by agreement. Assuming we are talking about joint authors (discussed elsewhere), the joint authors are free to divide up 100% of the song any way they agree to IN WRITING. You credited the band (which included him) as a writer of the song. Based on the little you’re telling us, I’d say you have a problem (i.e., he will probably be considered a joint author of the song). The analysis is different where, for example, someone wrote poetry and then, down the road, a musician comes to them and wants to put music to the existing poetry that was not intended as lyrics at the time it was written.

The second copyright at issue is the one in the sound recording (i.e., the recorded performance of the song on the EP). Absent agreements to the contrary, he would be a joint author of the sound recording and you, as a fellow joint author, would have a duty to account to him if you exploit those specific recordings. If you bring in someone to rerecord his parts and exploit those new recordings, then you would not have to account to him in terms of money generated by the sound recording. However, you would have to account to him for money generated by the song in the new recording if it was one of the ones you gave him joint authorship credit for above.

Good thing I kept it short, huh?

Best,
MA

 

[john_g]

Thank you for your input Music Attorney...

 

[Bass Note]

Under U.S. law, there are two sets of copyrights at issue here. The first one is the copyright in the individual musical compositions. Because I’ve written about this elsewhere on this site, I’m going to keep my answer relatively short. The bottom line is that the copyright in a musical composition subsists in the melody and lyrics. Therefore, by law, the drummer did not make a copyrightable contribution to the compositions.

HOWEVER, in some instances, the copyright in musical compositions can be divided up among writers by agreement. Assuming we are talking about joint authors (discussed elsewhere), the joint authors are free to divide up 100% of the song any way they agree to IN WRITING. You credited the band (which included him) as a writer of the song. Based on the little you’re telling us, I’d say you have a problem (i.e., he will probably be considered a joint author of the song). The analysis is different where, for example, someone wrote poetry and then, down the road, a musician comes to them and wants to put music to the existing poetry that was not intended as lyrics at the time it was written.

The second copyright at issue is the one in the sound recording (i.e., the recorded performance of the song on the EP). Absent agreements to the contrary, he would be a joint author of the sound recording and you, as a fellow joint author, would have a duty to account to him if you exploit those specific recordings. If you bring in someone to rerecord his parts and exploit those new recordings, then you would not have to account to him in terms of money generated by the sound recording. However, you would have to account to him for money generated by the song in the new recording if it was one of the ones you gave him joint authorship credit for above.

Good thing I kept it short, huh?

Best,
MA

I want your job dude!

 

[rabid_granny]

Ok, it's getting clearer. Having the drummer leave was a major surprise - only 6 months before, the guitarist was the best man at his wedding and the whole reason they moved from the East Coast to the West Coast was for the band, 6 years ago. Out of the blue, the drummer got upset that the band wasn't "making it" and quit via email. Why he quit and how he did it was shocking so in retrospect, listing the music as by the band still makes sense.

However, how does "in writing" play into this situation. The guitarist registered the songs with Socan (Canadian society for administering music rights) and gave credit as 30/30/30/10 (10 going to another individual). The drummer and I did not submit our paperwork. Can the guitarist change the distribution (we can)? The bottom line is that the drummer did not contribute any lyrics, melody, chord progressions or arrangements (other than playing drums).

As for playing the drummer's beats, I have a very competent but uncontrolable best friend who is a jazz drummer. I want to give him sheet music and get him to play it because finding a good drummer that understands the music has been impossible for me. I have yet to find a talented drummer (NAY, A DRUMMER WHO CAN PLAY IN TIME, LOL) who shares a compatible view on music.