Myers, Fletcher & Gordon (MF&G) has a storied history of advising stakeholders in the music and entertainment industry. This year, 2024, MF&G celebrates its 80th anniversary. As part of its anniversary celebrations, the firm assumed the role of an executive producer of a song entitled
Celebration, written and sung by one of its attorneys Kimberley Brown (me) and produced by Paul Barclay. The question has been posed to us on multiple occasions: “In the music industry, who is an ‘executive producer’ and what are his or her rights?” Well, having gained practical experience as an executive producer, let us explain.

Under the Copyright Act, the author of a work in which copyright subsists is the first owner of any copyright in that work, unless there is an agreement to the contrary. Works in which copyright may subsist include literary works and musical works, which may be the lyrics and music of a song, respectively. Notwithstanding, separate from any copyright that may exist in song lyrics and music, copyright may subsist in a sound recording of the song. A sound recording, as the name suggests, is a recording of sound, and is not limited to music. As such, if you record the sound of dogs barking, that recording may be protected work, and someone who wishes to use your sound recording, for example, as sound effects in a play, should get your consent or compensate you for the use of your work.

In the music industry, the author of a recording of a song (ie the person who owns any copyright interest in the recording, unless there is an agreement to the contrary) is the person by whom the arrangements necessary for the making of the recording are undertaken. While the Copyright Act does not make mention of a producer, it is bolstered by case law, including from other jurisdictions, which explains that the person who makes the arrangements necessary for the making of a recording is usually the producer.

In practice, there are different types of producers (or different persons who are referred to as producers) who perform different functions. Some producers focus on creating music tracks or ‘riddims’, for use by a performer or multiple artistes. Such producers may also act as mixing engineers arranging the music of the song. This kind of involvement is likely to result in that producer having a copyright interest in the musical work, unless there is an agreement to the contrary. An executive producer plays a different role. This person usually funds the project and hires the team including the musicians, singers and engineers to produce the sound recording. Subject to any agreements which provide otherwise, an executive producer may own the copyright in the master sound recording and be entitled to be identified as the producer of the song. That producer, unless he or she agrees to the contrary, may also have a right to collect any royalties that may be payable in relation to the sound recording of the song. In the Jamaica Supreme Court case of Cabel Stephenson v Doreen Hibbert et al [2022], the court indicated the following as being among the considerations which could identify the executive producer:

(i) who commissioned and made the arrangements necessary for the making of the recordings;

(ii) who was responsible for engaging and negotiating with artistes, booking, hiring and paying for musicians and paying the costs associated with them;

(iii) who was responsible for paying production cost and entering into contracts with artistes;

(iv) where did the idea come from (the vision) or who created the idea;

(v) who was responsible for the costs associated with studio time, attended the studio sessions, produced the recordings; and

(vi) who would be responsible for providing and paying for the physical media on which the recordings were captured.

Of course, there is no need to assume the role of an executive producer to understand how the law in relation to that role works. Indeed, our primary objective in undertaking this project was to reflect on the firm’s journey and that of our nation, celebrating and giving thanks for our existence. The song Celebration is a message to Jamaicans. As we approach Jamaica’s anniversary of Emancipation and Independence (in this Olympics season!), we reiterate the words of the third verse:

Jamaica, when the battle hot the victory sweet

Wi nah eva back down an accept defeat

Togetha, wi fi move mek wi sen wi fleet

A last laugh nice when wi skin wi teet

Suh nuh get distracted, mute di nise

Walk pan world stage an tek di prize

Kimberley Brown is an attorney at Myers, Fletcher & Gordon and a member of the firm’s Commercial Department. She may be contacted at kimberley.brown@mfg.com.jm. The song Celebration will be available on the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.