Complex copyright dilemma

[novakain1]

Hi guys. Here's the situation. Our record label (in NJ)is about to release a new single on Itunes (and other digital vendors) by our new artist (let's call him Singing Guy). He wrote and recorded the song about 5 years ago with his former band and it was never formally released, physically nor digitally. He wrote the lyrics and the other 4 musicians wrote and performed the music . The band registered the copyright and the split was: Lyrics by Singer Guy (50%) and music by the other 4 guys (50%). The band broke up and Singer Guy is signed to our label. We can't find some of the ex band members. Do we release the song as recorded (it sounds great) and wait for them to hear the song and come to us or do we bring in new musicians to replay the music (interpolation), have Singing Guy redo the vocals and fill out an SR form? And, if we do redo the music, are the original writers due any mechanicals from us, the record label. Do we need their permission and written agreement to release the song as is? Do we need their permission and written agreement to release the interpolation? There is no publishing company involved except for ours (and maybe their own personal companies set up with Ascap and BMI). What's your take?

[FlyingRon]

I'm presuming Singing Guy hasn't secured rights to the entire song from the other guys.

You can't use the previously made recording without those rights.

Now as for rerecording it, if the song was released before, then yes you can use the make the new cover and dig up the old guys and send them their share of the mechanicals. If the song was never released, there's no compulsory mechanical license and you'll need explicit permission.

[novakain1]

Can't an author make a derivative work without permission from the other authors. Also, what if only one of the music writers is found and gives permission? With his and Singing Guy's stake, that is atleast 60% controlling writing interest of the song. Isn't that enough to atleast get the song released if we get the song redone?