If you are a song co-writer, you have certain rights. But so does the other song co-writer. What rights do each of you have in the co-written song? Can you make further changes to the song without the co-writer’s consent, or sign off on the use of that song in film or television? Can you record a version of that song with musicians other than the co-writer? Can you release a recording of that song on iTunes or YouTube?
As we’ll see here, the answers aren’t as simple as one might think. As an entertainment lawyer, song co-writer disputes are one of the most common issues in the music industry.
Here are the key principles of co-writing that I’ve summarized and drawn from years of experience, to make it a touch easier on you.
1) There are always 2 copyrights in a recorded song, no matter how many Co-Writers are involved.
As we examined in detail here, there are two distinct copyrights in each piece of recorded music: one in the musical work or composition, and one in the sound recording of that composition. Within those two types of copyright, there are typically three parties that have control of the copyright: the writer, the performer, and the producer (known as the “maker” under the Copyright Act). The writer has copyright in the musical work, while the performer and producer are often granted a copyright in the sound recording. If the songwriter is also the performer on the sound recording, they are granted rights in both the musical work and the sound recording.
2) When More Than One Co-Writer is Involved, a Joint Work is Created.
When more than one song co-writer creates a composition, it is considered a joint work under the law. This means it is a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” A song acquires copyright protection when it is “fixed in any tangible medium of expression from which it can be perceived, reproduced”.
In other words, when you create lyrics or music, intending that someday they will be part of a song, your creation becomes part of a joint work when it is recorded on tape or written on a lead sheet along with someone else’s lyrics or music. Even though your individual contribution might have been separately protected under copyright law and suitable for copyright registration on its own, the song that results from the merging of the individual contributions of the songwriters is then granted copyright protection in its joint form.
3) Song Co-Writers each own undivided, equal interests in the whole song.
Unless you agree to some other division of ownership and income participation with your song co-writer, you will each own an equal share of the song (i.e. one-third each if three writers, one-quarter each if four, etc.). These fractional interests apply to the entire song, and separate lyrical and musical ownership rights to jointly created songs do not exist without a written agreement among the songwriters. In other words, it will be difficult in the future to separate the lyrics from the melody from the music, if you find yourself in a conflict with your song co-writer. You will both simply own half of the entire song.
4) Contributions to a joint work cannot be separated.
Without the consent of the other song co-writer involved, one writer can’t simply remove another co-writer’s contribution and get a new collaborator to replace it, because the original song co-writer will still own an equal share of the original composition, and that composition cannot be changed without that owner’s consent. The ownership share of the original collaborator may not be reduced by the addition of new writers without consent.
5) Each Song Co-Writer can grant non-exclusive licenses without the consent of the other co-writers.
Non-exclusive licenses are permissions for the use of a song that are not exclusively transferred to the party receiving the license. For example, most synchronization licenses for the use of a song in a motion picture or television program are nonexclusive, because the owner of the copyright usually reserves the right to license the use of the song to some other television or motion picture producer.
6) No Song Co-Writer may assign an exclusive right to a song without the consent of the other writers.
No song co-writer can deal with the publishing rights (that is, the ownership and administration rights) of the other songwriters. It is quite common for one song co-writer to assign his/her share of general music publishing rights, giving a particular publisher the same fractional interest in the entire song that the songwriter possessed before transferring the music publishing rights. For example, if you own 50% of the composition, you can transfer that 50% to a publisher in a publishing deal, but cannot transfer any portion of the remaining 50% that belongs to the other writer.
Other exclusive transfers of rights to the entire song are also forbidden. For example, no single collaborator can grant to a print music company the exclusive right to print sheet music of the song or grant to a sub-publisher in Italy the exclusive administration rights to the Composition throughout Europe.
7) All Song Co-Writers have a legal duty to account to each other for any monies earned from any use or exploitation of the song.
In its most basic sense, this just means each writer has to pay the others their equal share of monies received, but the “receiving” writer should also provide information about the source of the monies and a copy of any accounting statement received by that writer along with the payment.
8) Each Song Co-Writer also has a legal duty to give credit to the other writers wherever a printed or visual credit appears for any of the writers.
This would include on album inserts, iTunes, YouTube, in film credits, etc.
It is crucially important to sign a Co-Writer Agreement anytime songwriting occurs with more than one writer. Film producers will drop a song from being used in their production if a clear line of ownership cannot be established. If no Co-Writing Agreement can be shown, the producer will simply move on to the next song. The same can be said about songs being considered for advertisements (Apple has ‘made’ several careers), video games, etc.
The agreement itself is quite affordable, and will open doors for you for years to come. Contact me today to discuss further, and to discuss your favourite Eagles vocal.