It is a good idea to have a written agreement with session musicians that covers issues such as copyright in the music and recording, moral rights, performers’ rights, and whether or not they are entitled to any additional payment for their contribution (either as an additional up-front payment or as a downstream royalty).

Note that, for recordings made after 1 January 2005, unless the recording is commissioned or the session musicians otherwise agree, they will also have a claim to a share in the copyright of the sound recording.

Performers also have some very limited rights in relation to recordings made before 1 January 2005. Even for future recordings, performers’ rights are likely to be very limited in practice as a result of a number of the provisions. In particular, if a recording of a performance is made for a fee (for example, a record company contracts with a production studio to produce a master recording), the performer will have no rights.

If a session musician is improvising for a recording, or their improvisation is recorded at a live gig, they could be a co-writer of that particular version of the material. In a case in the UK, a session violinist was able to establish he owned copyright in a riff he had created in a recording session and on that basis was able to claim a proportion of the royalties in that piece.

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Band names are generally not protected by copyright, although other laws may apply. A band name may be registrable as a trade mark, and may need to be registered as a business name. If someone has established a reputation in connection with a band name, they may be entitled to prevent others from using the same or a similar name in a way that is misleading or confusing. For example, a band which has established a reputation in Sydney may be able to prevent another band in Sydney from using the same, or a deceptively similar name.

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If the tune is still protected by copyright and no special exception to infringement applies, you will need permission from the copyright owner, because this involves a reproduction of the music.

If you are doing this privately to sharpen your listening skills, you may be able to rely on the “research or study” exception to infringement.

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You cannot copy print music merely because you own it. You will need permission from the publisher, unless all relevant copyrights have expired, or a special exception to infringement applies.

AMCOS has published guidelines for choirs and community choral groups, private music teachers and music students which list the following examples of situations in which music publishers which are members of AMCOS would allow the copying of music without the need to obtain their express permission, provided you own the print original:

• enlarging a page of music because you have poor eyesight;

• copying to overcome a difficult page turn (to use in conjunction with the printed copy); and

• giving a photocopy of a piece to an eisteddfod or competition adjudicator or an examiner, provided certain formalities are followed and the copy is destroyed afterwards.

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Even if music is out of print, it may still be protected by copyright. You will usually need the publisher’s permission, unless copyright has expired or a special exception to infringement applies.

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The “research or study” exception in the Copyright Act is likely to include copying a piece of music in order to practise it for an exam. However, under this exception, you could generally only copy up to 10% of the number of pages if the work has been published in an edition of at least 10 pages. If you wanted to copy more than that, or if the music you want to copy is not published in an edition of at least 10 pages, you can only copy what is “fair” in all the circumstances.

If the piece of music you need is readily available for purchase, it will not normally be “fair” to copy all of it.

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