I am a freelance recording engineer in Australia.

I was engaged to make a recording in the expectation I would be paid for my services. After the job, the producer indicated that the job was pro-bono and would not be paying for my services. They had already passed the material onto the client.

In this situation, who owns the recording copyright in the material?

My reading of section 97 of the 1968 Copyright Act (Cth) is that as the "maker" of the recording and the absence of any "Valuable Consideration" that I am owner of the copyright in the recording until such time as I "release" the copyright to a third party, or I receive "valuable consideration" for the services involved in making the recording.

The producer contests that there was a verbal agreement to make the recording for free and yet I have a hard and fast policy on doing work for free. I don't do it. If it had even been mentioned in passing, it would have been shut down immediately.

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    But it seems that you did the work before agreeing to a fee; have you considered that maybe you should modify your hard and fast policy? If you had agreed on the fee beforehand, you could pursue the producer for breach of contract. – phoog May 31 '18 at 15:29
  • What was this "expectation" based on? Did they indicate they were going to pay for it? Or did you just assume that since you charge for recordings, they would pay for it? – Acccumulation May 31 '18 at 20:30
  • @phoog this is often the case with sound engineering work for film/tv. Rates for branded content are often fairly standard and if a producer does not request either a quote or a ratesheet, then default rates and T&C apply. It is exactly the same as if you called out a plumber to your house to fix a tap. They rock up, they fix the tap, you pay them. – Mark May 31 '18 at 23:08
  • @Acccumulation the expectation is based on the fact that I am a professional engineer. This is my livelihood. It's how I generate my income. Just like a plumber, electrician or other tradie. My expectation is always that I will be paid for my services unless otherwise agreed. – Mark May 31 '18 at 23:10
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    @Mark I never allow a plumber or other worker to work for me unless I know how the charge will be determined. – phoog May 31 '18 at 23:54

The law does indeed say that "the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of this Part", with the exception of when a "person makes, for valuable consideration, an agreement with another person for the making of a sound recording by the other person", and the recording is pursuant to that agreement. The law does not impose a burden on the engineer to secure copyright in the recording, it imposes a burden on the person hoping to override the engineer's copyright. If there is no agreement, or if there is no consideration, then the engineer would retain copyright. However, "consideration" need not be money: it could also be publicity, e.g. a line on the album cover saying "Sound engineer: Mark Jones". In which case, the question that would have to be resolved in court is whether there was such an agreement. The other side would have to establish that there was such an agreement.

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