Music Lawyers Adelaide: Recording Contracts, Publishing Deals, Masters and Royalties
Music recording and publishing agreements in South Australia
Two contracts decide most of a musician’s income: the record deal and the publishing deal. Talon Legal reviews and negotiates recording, publishing, label and distribution agreements for South Australian artists, songwriters, producers and independent labels. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Music deal key facts
| Issue | Position in South Australia |
|---|---|
| Two copyrights | A song, meaning the music and the lyrics, and a recording of it are separate copyrights with separate owners (Copyright Act sections 31 and 85). |
| Who owns a recording | The owner of the first record when it was produced, or the commissioning party for a recording made under a paid agreement, unless agreed otherwise (sections 22(3) and 97(2) and (3)). |
| Live performances | For a recording of a live performance, the performers are makers alongside the record owner, and co-owners hold it in equal shares (sections 22(3A) and 97(2A)). A live performance includes one given without an audience (section 22(7)). |
| Who owns a song | The songwriter, unless employed under a contract of service or the copyright is assigned in writing (sections 35(2), 35(6) and 196(3)). |
| Future songs | An agreement signed in advance can assign songs not yet written (section 197(1)). |
| Unfair terms | An unfair term in a standard form small business contract is void, and since 9 November 2023 proposing or relying on one can attract a penalty (ACL section 23). |
| Moral rights | Songwriters and performers keep them, and they cannot be assigned (sections 195AN(3), 195ABA and 195ALA). |
| Borrowing music | Taking a substantial part infringes, judged by the quality and importance of what was taken (section 14(1); EMI Songs v Larrikin at [52] to [53]). |
| AI | Copyright needs human authorship (Telstra v Phone Directories at [118]). Converting a work to digital form is a reproduction (section 21(1A)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a music lawyer in Adelaide?
Our music lawyers in Adelaide act for artists and bands, songwriters, producers, managers and independent labels. A recording or publishing deal can shape an artist’s income and control of their work for years, and the detail is where the value is: what is recouped, who owns the masters, how long the deal runs and how the rights come back. The Copyright Act 1968 (Cth) sets the default ownership rules the contract changes. This page states the law current to 24 October 2026.
This guide is part of our media and entertainment practice. Related guides cover artist management and band agreements and music licensing, sync and composer agreements.
For book deals, including royalties and the rights an author grants, see our guide to book and e-book publishing agreements.
Free Consultation. Send us the deal before you sign it. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- Why are a song and a recording different rights?
- Who owns a recording?
- What does a recording agreement cover?
- What does a publishing agreement cover?
- What about label, distribution and producer agreements?
- Do unfair contract terms rules protect artists?
- Can someone change or remix my song?
- When does using another song infringe?
- What about AI and new uses?
- How similar matters tend to play out
- How we act on music deals
- Case law
- Frequently asked questions
Why are a song and a recording different rights?
Because the Act protects them separately. The song is a musical work, and its lyrics are a literary work. The copyright in each includes the exclusive rights to reproduce it, publish it, perform it in public, communicate it to the public and make an adaptation of it, which for music includes an arrangement (Copyright Act sections 31(1)(a) and 10(1), definition of adaptation). The recording is a sound recording, and its copyright is the exclusive right to copy it, cause it to be heard in public, communicate it to the public and rent it commercially (section 85(1)).
The two are usually owned by different people. A label commonly owns or controls the recording, and a publisher commonly holds or administers the song. An artist can sign one deal without the other, and each needs to be judged on its own terms.
Making a recording of a song is itself a reproduction of the song (section 21(1)). A cover version therefore involves the song’s copyright even though the recording is new. A cover released as a record for retail sale may fall within the statutory licence in section 55, which requires an earlier authorised retail record of the song, notice to the owner beforehand and payment of the prescribed royalty; that licence does not extend to a film soundtrack (section 54(3)).
Who owns a recording?
The maker, unless the recording was commissioned. For a recording other than a recording of a live performance, the maker is the person who owned the first record when it was produced (section 22(3)), and the maker owns the copyright (section 97(2)). A recording made for valuable consideration under an agreement belongs to the commissioning party unless they agree otherwise (section 97(3)).
Recordings of live performances are different. The performers are makers alongside the owner of the record (section 22(3A)), and the Act defines a live performance to include one given without an audience (section 22(7)). Where there is more than one owner of such a recording, they own it as tenants in common in equal shares (section 97(2A)). A performer employed under a contract of service is replaced by the employer as maker, and that rule can be varied by agreement (section 22(3B) and (3C)).
Two provisions soften the co-ownership rule. A performer who consented to a recording for a particular purpose is taken to have licensed its use for that purpose (section 113B), and a co-owner of a published recording who cannot find another owner after reasonable inquiries is taken to be licensed to do acts under an agreement, holding the other owner’s share on trust for 4 years (section 113C). Recording agreements should still deal with performer ownership expressly.
What does a recording agreement cover?
The recordings, the money and the term. A traditional royalty deal pays the artist a percentage of income after the label recoups agreed costs, while a profit share splits net receipts after agreed expenses. The commercial difference is large, and the definitions decide it: what is recoupable, what counts as an expense, and how income from streaming, sync and other uses is shared.
Ownership of the masters is the other central term. If the label is to own the recordings, the agreement must assign the copyright in writing (section 196(3)), and an assignment of recordings not yet made can be agreed in advance (section 197(1)). An artist should look closely at the term, the label’s options to extend it, minimum delivery commitments, approval rights over artwork and releases, accounting and audit, and what happens to the masters when the deal ends.
A music lawyer will also ask what the label actually commits to: release dates, marketing spend, and the artist’s right to terminate and recover the recordings if the label does nothing.
What does a publishing agreement cover?
The songs. A publishing deal assigns or licenses the songwriter’s copyright to a publisher in return for administration, promotion and usually an advance, with income split on agreed terms. An assignment of copyright must be in writing and signed (section 196(3)), and an exclusive licence must also be in writing, signed by or on behalf of the owner (section 10(1)).
The core issues are the term and how long the publisher keeps songs after it ends, the territory, which songs are included, the writer’s share of each income stream, recoupment of advances, the songwriter’s approval of uses such as advertising, and reversion of songs that are not exploited. Where the deal covers songs not yet written, the copyright vests in the publisher as each song is created (section 197(1)).
What about label, distribution and producer agreements?
They decide who controls the catalogue. Independent artists and labels often use distribution agreements with larger companies or digital aggregators, which should license rather than assign the recordings, for a defined term and territory. A small label entering an affiliate deal should keep ownership of its masters and the right to leave with them.
Producer agreements matter too. A record producer engaged by the artist is usually paid a fee and a royalty, and the agreement should confirm who owns the recording, deal with any performance by the producer on the track, and settle credit. Session musicians need a short release, discussed in our artist management and band agreements guide.
Do unfair contract terms rules protect artists?
Often, yes. A contract for goods or services is a small business contract if at least one party makes it in the course of a business while employing fewer than 100 people, or had turnover under $10,000,000 in its last income year (ACL section 23(4)). An individual artist or a small label will usually meet that test.
An unfair term in a standard form consumer or small business contract is void (section 23(1)). Since 9 November 2023, making such a contract containing an unfair term the business proposed, or relying on one, has been a contravention attracting penalties (section 23(2A) and (2C)). A term is unfair if it causes a significant imbalance, is not reasonably necessary to protect the legitimate interests of the party it advantages, and would cause detriment (section 24(1)). Examples include terms letting one party alone terminate, renew or vary the contract (section 25).
The rules apply only to standard form contracts, but a contract offered on the label’s form is presumed to be one unless the label proves otherwise (section 27(1)). For an artist, that is real leverage on a standard offer; for a label, it is a compliance issue in its template.
Can someone change or remix my song?
Not in a way that is prejudicial to you without your consent. A songwriter has a right of integrity, the right not to have the work subjected to derogatory treatment (section 195AI). For a musical or literary work, that means a material distortion, mutilation or material alteration, or anything else done in relation to the work, that is prejudicial to the author’s honour or reputation (section 195AJ). Performers have a corresponding right of integrity in their performances (section 195ALA).
In Perez v Fernandez [2012] FMCA 2, a DJ overlaid a promotional recording of an artist’s voice onto the artist’s song and streamed it, making it sound as though the artist was endorsing him ([64] to [65]). That infringed the copyright in the recording and the songwriter’s right of integrity ([66]), and the Court awarded $10,000 for the moral rights infringement (orders). Moral rights cannot be assigned (section 195AN(3)), so remix and edit permissions in a deal should take the form of a written consent (section 195AWA).
When does using another song infringe?
When a substantial part is taken. Doing an act in relation to a substantial part of a work counts as doing it to the work (section 14(1)). Substantiality depends much more on the quality than on the quantity of what is taken, and on its importance to the original work rather than to the new song (EMI Songs v Larrikin at [52] to [53]).
In the Down Under case, about five bars of a 93 bar song reproduced a substantial part of the melody of Kookaburra, even though the key, genre and structure were different and the borrowing was described as a tribute ([226]). Musical ideas and commonplace building blocks are not protected, but the specific phrases that express them can be ([97]). A writer who uses a sample or quotes a melody should clear it before release.
What about AI and new uses?
They should be dealt with expressly. Copyright needs human authorship: where a computer performs the functions of an author and the operator does not control the material form, copyright does not subsist (Telstra v Phone Directories at [118]). A track generated by software without a person directing its form may not be protected at all.
Training an AI system on recordings or songs generally involves copying them, and converting a work into digital form is a reproduction (section 21(1A)), as is copying a recording in digital form (section 21(6)). Recording and publishing agreements should say whether the label or publisher may license the catalogue for AI training or synthesis, and on what share.
How similar matters tend to play out
Three illustrations of how the law on this page combines on ordinary facts. They are not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. An emerging artist is offered a standard publishing deal assigning all songs written over five years, with a one-sided right for the publisher to extend. A music lawyer negotiates a shorter term, a reversion of unexploited songs and the removal of the one-sided extension, with the unfair contract terms rules as leverage (ACL sections 23 and 25).
Middle range. An artist pays a producer to record an album, and the producer later claims to own the masters. A recording made for valuable consideration under an agreement belongs to the commissioning party unless agreed otherwise (Copyright Act section 97(3)), but the producer’s own performance on the tracks raises the live performance rules (section 22(3A)). A short written confirmation settles both.
Upper range. A label releases a single containing a recognisable melody from an older song without a licence, and the owner of the older song sues after the single charts. If a substantial part was taken, the release infringes (section 14(1); EMI Songs v Larrikin at [52] to [53]), and the label faces an injunction, damages or an account of profits (section 115(2)).
How we act on music deals
We act for artists, songwriters, producers and labels. For an artist or writer, the aim is a fair share, a defined term and a way to get the rights back. For a label or publisher, it is a template that is enforceable and survives the unfair contract terms rules.
| Stage | What happens | What we do |
|---|---|---|
| Offer | A label or publisher sends terms. | Explain what the deal does to ownership, income and control. |
| Negotiation | The terms are contested. | Negotiate recoupment, term, options, reversion, approvals and AI uses. |
| Signing | The deal is finalised. | Check the assignment or licence, performer and producer arrangements. |
| During the deal | Releases, accounting and new uses. | Review statements, audits and licence requests. |
| Exit or dispute | The deal ends or breaks down. | Advise on termination, reversion and recovery of masters and songs. |
We cannot promise an outcome, and no lawyer can. We can make sure you know exactly what you are giving up before you sign.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Music deal case law
EMI v Larrikin and Perez v Fernandez concerned music. JJ Richards concerned standard form terms in another industry, and Telstra v Phone Directories concerned computer-generated material.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47 | Full Federal Court | Substantial part judged by quality and by importance to the copyright work | [52], [53], [97], [226] |
| Perez v Fernandez [2012] FMCA 2 | Federal Magistrates Court | Altering and streaming a song infringed the recording copyright and the songwriter's right of integrity | [66], [84], [95] |
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | Automatic renewal and unilateral price variation terms unfair and not transparent | [56], [60] |
| Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149 | Full Federal Court | Computer-generated works need a human author | [118], [169] |
Case notes
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47
The Full Court dismissed an appeal from findings that two recordings of “Down Under” reproduced a substantial part of the melody of “Kookaburra” (orders). Emmett J said substantiality depends much more on quality than on quantity, and on the importance of the part to the copyright work rather than to the new work ([52] to [53]), and that musical ideas are not protected though the phrases expressing them can be ([97]). Jagot J noted that only 5 of 93 bars were involved, in a different key and genre, but calling the borrowing a tribute did not change it ([226]).
Perez v Fernandez [2012] FMCA 2
A Perth DJ overlaid a promotional recording of the artist’s voice onto the artist’s song and streamed the altered version on his website ([64] to [65]). The Court held this infringed the copyright in the sound recording and the songwriter’s right of integrity ([66]), found the alteration prejudicial to his honour and reputation ([84] to [88]), and said moral rights infringement is actionable without proof of damage ([95]). It awarded $10,000 for the moral rights infringement and $2,312 for the copyright infringement (orders).
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
Automatic renewal and unilateral price variation clauses created a significant imbalance in small business standard form contracts ([56]), and the terms, in legal language and very small print, were not transparent ([60]). The terms were declared void; the penalty provisions came later. Options to extend a record or publishing deal at one party’s election raise the same questions.
Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149
The Full Court dismissed the appeal, so copyright did not subsist in the directories (orders). Perram J said that where a computer performs the functions ordinarily performed by human authors, and the operator does not control the material form, copyright does not subsist ([118]). Yates J treated originality as a question of fact and degree ([169]).
Frequently asked questions
What is the difference between a record deal and a publishing deal?
A record deal covers recordings; a publishing deal covers songs. They are separate copyrights with separate income (Copyright Act sections 31 and 85).
Who owns my masters?
It depends on who made or commissioned the recording and what the agreement says. A recording made under a paid agreement belongs to the commissioning party unless agreed otherwise, and a label can own it only by written assignment (sections 97(3) and 196(3)).
Do band members own the recordings they play on?
They may. For a recording of a live performance, including one without an audience, the performers are makers alongside the record owner and co-owners hold it in equal shares (sections 22(3A), 22(7) and 97(2A)).
What does recoupment mean?
The label recovers agreed costs from the artist’s share before paying royalties. What is recoupable is one of the most important terms to negotiate.
Can I get my songs back from a publisher?
It depends on the agreement’s term, reversion and termination terms. A music lawyer negotiates for a reversion of songs that are not exploited.
Are standard record deals subject to unfair contract terms laws?
Often. An unfair term in a standard form small business contract is void, and a contract offered on the label’s form is presumed to be standard form (ACL sections 23 and 27).
Can someone remix my song without permission?
Not lawfully without a licence, and an alteration prejudicial to the songwriter can infringe the right of integrity (sections 195AI and 195AJ; Perez v Fernandez at [66]).
How much of another song can I use?
There is no safe number of bars. Taking a substantial part infringes, and substantiality depends on quality and importance (section 14(1); EMI Songs v Larrikin at [52] to [53]).
Is AI-generated music protected by copyright?
Not without human authorship. Where the operator does not control the material form, copyright does not subsist (Telstra v Phone Directories at [118]).
Do I need a music lawyer?
Before signing a recording, publishing, label or distribution deal, yes. A music lawyer can show you what you are giving up and negotiate the terms that matter while the other side still wants to sign you. A free 30-minute consultation will tell you where you stand.