David Bawiec, Spire Contributor | September 20, 2018
One of the coolest things about being a musician is being able to make music with other musicians. Whether you're playing a gig at a swanky club or recording a song for your next EP, you're bound to perform with others. One of the more important questions to ask is: are they considered a bandmate or a session player? Or—are you a bandmate or session player?
In this article, I'll go over the difference between the two, why it's important to make the distinction, and when to use one vs. the other.
Setting the scene
Imagine you're recording a brand new song in the studio. Your entire band is there: the vocalist, drummer, keyboard player, guitar player, and bassist. You're all part of the band, meaning you all contribute musically to the sound of the record. So clearly, once the song is released, any money earned from this song should be split equally between all of you. This means money from the sale of the song on say iTunes, licensing money for when the song gets placed in a TV show, performance royalties, etc. In short, if the song earns money, you all split it. Yay!
Now let's say you want the sound of a tambourine during the last chorus of this particular song? None of you have or play it, so you call up a friend who is a pro tambourine player (we'll call him Jim) and bring him into the studio. He does a great job, making the song sound better than before.
The question, however, becomes: once the song is released, should you be paying Tambourine Jim royalties for performing on the song?
You probably want to say "No. Jim only played on this one song—he isn't part of the band." And I'd agree with you. However, there's a catch.
Legally speaking, anyone who plays on a recording becomes a co-owner of the copyright of that sound recording. This means that although your tambourine playing friend contributed only a little bit, he will automatically own an equal share of the rights to the recording (along with all the other band members and anyone else who performed on the song). Co-ownership of copyright means that Jim will have the right of consent regarding how the recording is used (meaning you have to ask him for approval when you want to license the song to be used in a commercial, film, or any other medium). Additionally, Jim will also be entitled to any royalties generated from the use of the recording.
In the above scenario, you've only had one extra player on your recording. What happens if you decide to record a 16 person string section? Or a 40 person gospel choir? Needless to say, splitting royalties with so many people isn't fun, and probably isn't what you want.
So does that mean you should stick to recording only the direct band members and nobody else? Not at all! The good news is, there's totally a way to eat your cake and keep it too.
The solution: session players
Jim isn't an integral part of the band. So why should he be treated as such? This is why you want to define Jim as being a session player rather than a bandmate.
A session player is anyone who comes on board to play during a “session” on stage or in the studio, but who is not part of the main act or band. In other words, anyone who makes a “one-off” contribution should be considered a session player.
The big difference between a bandmate and a session player is that usually a session player is paid a one-time flat fee for performing and is not entitled to any additional payments after.
Deciding who is a session player and who is a bandmate shouldn't be too difficult. If without the keyboard players awesome licks the band wouldn't sound the same, they're probably a bandmate. But if that keyboard player really is only helping on a couple songs here and there and aren't an integral part of the band, then they're a session player.
So once you decide that someone is a session player, you'll want to have them sign a session player release form.
What is a session player release?
A session player release (SPR) is a simple document that you will want to sign with Jim and any other performer who you consider to be a session player. This one-page document establishes that Jim is a session player and that, in return for a session fee, he assigns and transfers all the rights to his performance during that particular session to whoever is paying for/producing the recording.
Here's a template session player release form that you can modify and use for your own recordings. A basic session release form will include the name of the session player, the contributions they will make (like "playing ukulele," "background vocal performance"), the date of the "session," the amount of money you will pay them for playing on your song (more about that in a bit), and the name of the person producing the song. The session player release form will also include a couple paragraphs that take care of the transfer of all the rights to the performance and that the player is giving up the right to any future money.
The majority of the session player releases you will sign will stay unchanged. All you have to do is add in the appropriate missing info that's particular to each player and each session, date it, sign it, and you're all set! But feel free to make adjustments to make it fit the scenario you're dealing with.
When are session player releases used?
All the time! Most professional music producers in the world uses session player releases.
As for determining who is considered a lead artist vs. a session player, that's a determination you're going to have to make on your own. Are the background vocalists integral to the sound of the band and the song? If not, then you should probably consider them to be session players. They get paid a one-time fee and you own the rights to their performance. If, however, you're recording a duet with another artist, that other artist probably wouldn't be considered a session player but instead be a featured artist and should have an equal share in the ownership of the song.
Money, money, money
If you're wondering how much to pay your musicians, well it's honestly up to you and the musicians you're hiring to negotiate that. However, a standard rate for a session player is $100 per hour. Different musicians’ unions around the world have three-hour booking minimums. Meaning that even if you only need someone for 15 minutes, you still need to pay them $300.
Having said that, if you're working on a non-union project (which you probably are), then it's really up to you and your player(s) to figure out how much is fair for the work they're putting into your song. You can either offer an hourly rate or a flat fee for their contributions.
What if I don't have money to pay any of my musicians now?
Well, in this case, you just have to look at all the other assets you have. Ultimately, you have two options:
You can offer your players royalties instead of an upfront payment
If you're a songwriter, you can offer your session players co-ownership in the song
If you go with option number 1, you'll want to modify Paragraph 4 of the session player release to say that they will, in fact, be entitled to royalties, and you'll want to specify how large those royalties will be (%). So let's assume that you decide you want to offer Jim 5% of all the money you earn from the song, which you would write in the SPR you sign with him. That way you're still making sure you don't have to ask Jim for permission to license the song, but he still gets compensated somehow.
Now let's say that your song hits big and becomes a smash hit. For the purpose of a quick calculation, let's say you earn one million dollars in the first year. You're suddenly paying $50,000 to Jim. Which is very generous and I'm sure he'll be very happy. But it's also not uncommon to cap the total amount of royalties Jim can receive. For example, you could say that Jim will earn 5% until you pay him $800. Once he's earned that $800 from royalties, he will be considered as having been paid off and you will owe him nothing more. Again, all these numbers are purely hypothetical, it's up to you to decide how much you both feel is fair for the contributions that "Jim" is bringing to your song.
Do I need to sign an SPR if they're playing for free as a favor?
Yes, you should still sign an SPR regardless. Just specify in the compensation field that they're receiving $0 (zero USD). Again, you don't want to ask Jim each time you want to license the song. Plus, trust me, if the song does hit big (which I hope for you that it does), Jim will call you when his stellar tambourine performance is in the Billboard Top 100 and you're raking in huge money—he'll want a piece of the action. So you just want to protect yourself and make sure that all expectations are clear. (As above, if you want to offer Jim some royalties as a courtesy thank you, that's up to you, and would surely be considered a noble thing to do).
What about live concerts and going on tour?
All of the above applies to both recording scenarios as well as live performances. Imagine your band is going on tour and you decide that you want Jim and a couple of background vocalists to join. They're not part of the band, but they would surely make each concert sound great. This is an excellent example of why you'd want them to sign session player releases for the duration of the tour. That way, every one of your additional players gets paid for each performance, but they're not entitled to receiving any additional money from ticket sales or merchandise sales.
The same applies to having someone come up to perform one song with you at a music club. You'd be surprised how many people come out of the woodwork wanting in on the action when you become a huge success. Let's say that Jim played a gig with you early in your career. I can guarantee you that if you become a platinum-selling artist, Jim's lawyers will give you a call claiming that you wouldn't be the success you are today if it wasn't for Jim's contributions early on, so he deserves a piece of the proverbial pie. By no means am I saying that everyone is out to get you. There are incredible people who contribute to our lives and careers every day. What you're trying to do is just protect yourself from any misunderstandings by replacing assumptions with a clear agreement between everyone. Sign an SPR, that way you both know what to expect down the road.
The template I provided above is worded for recording situations, but feel free to adjust it and reword it as needed to make it work for your live performances.
Ultimately, music is all about creating something incredible and sharing it with the world. Session Players can be an integral part of your music creation process. So I hope that now you can continue making awesome music and collaborating with your talented friends, but that you're also better equipped to protect your rights at the same time.
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