Who is the producer of a music recording?

Imagine this: you are a musician or DJ and discover years later that one of your old recordings has been sampled in a well-known song. You believe you are entitled to compensation for the use of that particular recording. But who legally holds the rights to that sound recording - the so-called neighbouring right of the phonogram producer (not to be confused with copyright)? Is it you as the creative mind behind the track, or is it the record company that funded the recording at the time?

This question was the focus of a Court of Cassation ruling of June 13, 2025. The case, brought against a Ghent music company, sheds light on the distinction between creative producer and phonogram producer, and the evidence involved.

The facts: what was the discussion about?

The case revolved around an artist (Martin Luna) and his licensee (High Fashion Music Bv), who claimed to be the holders of the neighboring rights to a 1990 master recording of the music track "In the Mix". According to them, it contained song "Pump it Up!" by singer Danzel from 2004, released by the Ghent label NEWS, a sample from their original recording without asking permission. They therefore demanded a cessation of use and damages.

NEWS's defense was basic: they disputed that the plaintiffs were indeed the effective holders of the claimed neighboring rights.

The bottom line: the legal presumption for the producer

To fight an infringement of the phonogram producer's neighboring rights, you must first prove that you are the holder of those rights. Belgian law lends a helping hand here via Article XI.209, § 2 of the Code of Economic Law (CEL). This provision provides for a legal presumption:

"Unless the contrary is proved, any person shall be deemed to be the producer of phonograms or of first fixations of motion pictures whose name or acronym by which he is identifiable as such stated on the performance, on a reproduction of the performance, or in a communication to the public thereof."

This presumption is important and it significantly eases the burden of proof. If you are listed "as such" as a manufacturer, it is up to the opposing party to prove that you are not.

The opinion of the court of appeals and the Supreme Court

1. The statement "Produced by" is not always sufficient

The plaintiffs relied on the statement "Produced by Martin Luna" on the vinyl record of "In the Mix." However, the Antwerp Court of Appeal, in its ruling of June 14, 2023, did not follow this reasoning, and the Court of Cassation now confirmed that this decision was legally correct.

Why was the entry not sufficient? The court must consider the full context on the carrier and industry customs. On the label were other crucial entries:

• "Additional production by Tyree Cooper and Rocky Jones.
• "All tracks are original DJ International recordings.

The court held that the combination of "Produced by" and "Additional production" rather indicated the role of creative producer - the one who guides the artistic process. This is a different role than that of the producer of the phonogram. The latter is the person or company that bears the financial and commercial risk of the recording, usually the record company.

Because the statement "DJ International recordings" was also on the label, it was unclear who was now designated "as such" as the producer bearing the business risk. As a result, the legal presumption could not be applied. The burden of proof thus reverted entirely to the plaintiffs, who, according to the court, did not produce sufficient other evidence.

2. The relativity of agreements.

The plaintiffs also tried to prove their rights through a settlement agreement with Universal Music, in which Universal acknowledged that the plaintiff was the holder of the rights. This argument was also dismissed by the Supreme Court. The Court recalled the basic principle of relativity of contracts (the former Article 1165 old Civil Code - now Article 5.103 Civil Code): a contract only produces effects between the contracting parties. Since the Ghent label NEWS was not a party to that settlement agreement, its contents could not be invoked against it.

Practical implications for musicians, producers and labels

This ruling is an important wake-up call for anyone active in the music business. The key lessons are:

1. Provide clear contracts: Do not rely on assumptions. Establish contractually who is the producer of the phonogram (who bears the financial risk) and who acts purely as creative or artistic producer. This prevents discussions afterwards.
2. Be precise in your credits: Mentions on a physical release or on digital platforms are of capital importance. A vague listing may cost you the benefit of the legal presumption. Consider explicit mentions such as "phonogram producer" or "music producer," or using the ℗ symbol, which refers specifically to the neighboring right to the sound recording.
3. The risk of proof lies with the plaintiff: Without a clear presumption, you as the plaintiff must be able to make a hard case that you own the neighboring rights. For older recordings, where contracts have sometimes been lost, this can be a very difficult task.

Conclusion and how we can help you

The June 13, 2025 Supreme Court ruling underscores the crucial importance of legal precision in the music industry. A listing as "producer" is not a guarantee of the phonogram producer's neighboring rights. It is the party taking the financial and organizational initiative that is protected with these rights.

Do you have questions about your neighboring rights, drafting production or licensing agreements, or are you facing infringement of your intellectual property? Our firm specializes in intellectual property rights and is happy to assist you with expert and practical advice.