What Constitutes Songwriting? The Million Dollar Question in the Music Industry

songwriting

What constitutes songwriting? As an entertainment lawyer, it is the single question I get asked the most. And without a doubt, its one of the most important and complex questions in the music industry today.

While most musicians know very well how to write a song (whether the songs are good or not is another story!), what is less known amongst musicians is: which elements of the finished song count as songwriting? Should the tambourine player or backup singer be included as writers? What about the drummer and bass player? If the song is co-written with a friend, what percentage should each writer receive? How do we decide what constitutes songwriting?

Songwriting is Complex

The answers are not always straightforward, and I’ve found that the issue of songwriting and publishing is one of the most confusing for musicians. This is due in part to the fact that there is no “right” way to divvy up songwriting. As you can imagine, this creates much uncertainty in the music business…and uncertainty leads to misunderstanding…which leads to conflict…which leads to litigation. Songwriting disputes create a lot of work for entertainment lawyers, myself included. In a way this makes sense: the amount of revenue flowing to songwriters has never been higher. While the amount of recorded music being purchased continues to decline, the amount of music being used (in film/tv, on the internet, on radio, in video games, etc.) continues to escalate. Music is being used more today than ever before. The revenue generated from the use of music goes to the writers of that music.

Most songs in the world have multiple songwriters, so understanding the concept of co-writing is one of the most valuable things you can do for your career.

What are the “parts” of a song?

Most popular songs are comprised of vocals/lyrics, melody, chord structure, and instruments. The melody can be comprised of chords, instruments, vocals, or all of the above. In hip-hop, the vocals and beat take precedence (and instruments are often sampled). In jazz, the instruments are the focal point, with vocals often taking a back seat. Then in rock and roll, guitars and drums are more important than in country. In electronic music, the beat takes center stage, with some sort of melody coming from chords or vocals. So as we see, the “parts” that comprise a song – and the importance of those parts – can change from genre to genre and song to song.

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Which “parts” constitute songwriting? 

Generally speaking, any significant contribution to melody, lyrics, or structure can count as songwriting.

We generally think of a songwriter with their guitar writing the songs and strumming chords, and the melody coming from a combination of those chords and the vocal. But a signature guitar riff (like Keith’s famous lick in “Satisfaction” or the riff in “Smoke on the Water”) might count as songwriting. Or the bass line on Queen’s “Another One Bites the Dust”, or drum intro on their classic “We Will Rock You”. It’s hard to imagine these songs with any other bass line or drum beat, and they form as much of the structure and in fact melody of the songs as the guitar and vocals. A great example is the Procol Harum case, wherein organist Matthew Fisher sued the band for past royalties due from their massive 1967 hit “A Whiter Shade of Pale”, on which he played the main organ theme. Mr. Fisher was never given songwriting on the song, and felt that his organ riff was a critical part of the song’s structure and melody. At trial, his contribution to the song was deemed to be 40%, which amounted to millions in retroactive royalties since 1967. Sadly for him, he lost it all on appeal, with the court declaring his delayed claim “excessive and inexcusable” (he had waited 38 years to make claim, as he knew it would be the end of his tenure in the group!).

However – generally speaking – adding a guitar solo or drumbeat or organ over an existing song structure (and not contributing to the actual structure or melody of the song) is not typically considered songwriting. As you can see, what constitutes songwriting is very much a question of degree. Let’s look at some real world examples to provide some clarity.

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How do the pros do it?

Chris Martin of Coldplay splits the songwriting equally with his band mates, even though he writes the music, lyrics, and melody. R.E.M. and The Red Hot Chili Peppers divide songwriting equally amongst the band members regardless of who wrote what for each song (and look how happy R.E.M. looks!). In U2, Bono claims the lyric credits but splits the music credits equally between him and the rest of the band. Professional songwriters in Nashville generally operate under a “gentlemen’s agreement” where the songwriting is split equally between whoever is in the room while the song is written (so they make sure the right people are in the room!).

The flipside of this is a band like the Rolling Stoneswho split the songwriting 50/50 between Mick and Keith and “hire” other members like guitarist Ron Wood to be in the band, and pay them a fee. Often, this fee is structured as a “work made for hire” arrangement, where the band member forgoes any songwriting credit he/she might be entitled to, as a condition of being “employed”. So even if the Stones record a song to which Ron Wood materially contributed, the songwriting would still be assigned entirely to Mick and Keith (no wonder Ron keeps recording solo albums!).

Then there is more “traditional” singer/songwriters like Neil Young and Bob Dylan, who typically write the entire song themselves, and bring the completed song to their backing band for additional instrumentation. In most cases, this additional instrumentation does not count as songwriting, so all of the songwriting stays with Neil or Bob. Both of these writers have definitely co-written songs over the years, but that usually involves a more overt effort to sit down with another writer for the purpose of co-writing (as opposed to simply bringing completed songs to a band to play instruments over).

So it really is a question of how the songs come about. With the Chili Peppers, the songs come about in a jam-based situation, where the music is created from the jams and Anthony Kiedis completes the lyrics later. With the Stones, it’s more Keith and Mick hanging out writing the songs, and bringing the mostly-complete works to the band. With Dylan and Young, they bring the songs to their band nearly complete.

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How Should YOU Divide Songwriting?

The R.E.M./Chili Peppers method of songwriting splits is great if everyone in the band is crucial to the sound and success of the band. But if one or more members fail to carry their weight on a regular basis, then you’ll only resent them and be unfair to your own input by giving them an equal share of the songwriting.

The Rolling Stones/Neil Young songwriting approach works if you have enough money to “hire” your band mates, assuming your band mates are willing to give up their creative rights in exchange for a fee. Most bands, however, cannot afford to hire band mates, particularly in the early years. If this is your reality, and your drummer/guitarist/singer simply does not contribute at all to the songwriting process, you’ll want to have a candid discussion on songwriting splits and whether or not they’re going to be included. It could be the most important discussion of your music career.

It is important to remember that you want an arrangement that will keep everyone in the band happy, and more importantly, keep the songwriting juices flowing.

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When is a Good Time to Determine Songwriting Splits?

The best time to decide songwriting splits is early in the creative process. Whether you’re sitting down in a Nashville-type co-writing situation or with your band mates, a discussion should be had in the early stages as to how things will be split. This is the tough part: sometimes you don’t know who deserves what until the co-writing has occurred. That’s fine — have the discussion shortly after the song(s) are written. The longer you wait, the more complicated things become (just ask the Procol Haram organist!).

A major benefit of having the discussion early is that everyone will have similar expectations in terms of songwriting splits, and this will create a more natural writing environment going forward. Now, the discussion may turn into an all-out fight when everyone’s true colors come out and they don’t happen to match. But maybe not. What I tell my fellow musicians is that it’s better to have that fight sooner rather than later. It will make all the difference.

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Conclusion: What You Need to Know Now

1) SOCAN Registration is Not Enough. Most songwriters register their songs and songwriting splits with SOCAN and think this protects them legally. It does not. Or at least not in a way that will protect you in a songwriting dispute with your co-writer. SOCAN makes no representations that what their members register for songwriting splits is accurate. SOCAN administers and protects the performing right of its members, but does not administer or protect reproduction rights (mechanical rights, synchronization rights), print rights, translation rights, moral rights or neighbouring rights. So songwriting splits on SOCAN are not the law (in fact, I’m sure there are thousands of improperly registered songs on SOCAN). So you still want to register with SOCAN to get your performance royalties, but you need to protect yourself further with a Co-Writing Agreement.

2) Sign a Co-Writing Agreement. The best way to protect your rights in a song and to clearly articulate the songwriting splits between you and your co-writers is with a Co-Writing Agreement. This agreement outlines: the splits for each song; who has admin rights to the songs (i.e. who can sign off on the use of the songs for film/tv/commercials/etc.); whether the songs can be changed without the consent of the others; and a host of other important points. Also, if you hope to get your songs placed in film and tv, music supervisors need to know they have “one stop clearance” for the song…so without a signed Co-Writing Agreement handy, they will move on to the next artist and you’ll lose the opportunity.

3) Register with the Copyright Office. While copyright ownership in Canada is automatic upon the creation of a song, it is still important to have evidence that establishes ownership and date of creation in the possible event of infringement. To register a musical work claim in Canada, complete the form from the Copyright Office website (part of the Canadian Intellectual Property Office) and send it back to the office along with the filing fee.

4) Go forth and write. And write. And keep writing. And contact me along the way, with legal or music questions. I’ll listen. And I might have some answers for you. Good luck.

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14 thoughts on “What Constitutes Songwriting? The Million Dollar Question in the Music Industry

  1. I’m in a dispute right now. I have someone who beat only. I wrote the lyrics and the melody. He feel entitled to get 50% of publishing rights n royalties. I know he gets nothing but I do believe he should at most get 25% if SONGWRITER royalties. Am I being unfair

    • Hi Keda,

      It really depends on many factors. In hip-hop and pop, the producer often gets 50% of the songwriting, if they are brining all the music to the table and you bring the vocal and melody. This is why these issues should be discussed ahead of time with something put in writing. It really comes down to what the two of you can negotiate now, hopefully without the need for lawyers.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  2. Hi Kurt, a couple years back a drummer friend joined my band and presented me (the guitarist) with a CD he had already made with some cool guitar riffs he composed. As none of these “songs”, as he calls them, were complete I then proceeded to compose fairly extensive bridges, a chorus, transition riffs, modifications etc to what would eventually become the 3 songs in question. Typically he came up with the main chorus and verse riff but one tune only has one riff of his. The other members added lyrics, vocal melodies, bass lines, drums and we all had a part in the overall arrangements. Very much a group collaboration to be sure!
    These songs have been performed live and recorded on Iphones so far.
    Problem is, the drummer left a few months ago and has threatened to sue us if we perform or record any of these songs that he now claims “he wrote”. He suggests that we just “write new ones”, which we have.
    Is this not an unreasonable demand to make as we have already spent a great deal of time writing, rehearsing and performing this music to date?
    Does he have a legal leg to stand on or should we just continue playing these songs that were created by all the members of the band?
    We will give him credit as a cowriter and he is certainly entitled to his share of any money we make.

    • Hi Chris

      It sounds like your drummer is definitely a co-writer of the songs in question (especially because he had the original “creative spark”, which courts have ruled is crucial). How much a % he is entitled to is a question of fact; I would have to hear his demos vs the current version of the songs to make an educated assessment.

      So you really need a Co-Writer Agreement that gives you (the band) the right to use/exploit the songs going forward. He will stand to gain from it (monetarily, and otherwise). But without something in writing, he can indeed stop you from exploiting the songs, because he is a co-writer.

      Email me to discuss further.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  3. Great article Kurt. Thank you for writing it. I was redirected from a reddit thread I started asking the question of how to split things. If I have any questions moving forward I’ll definitely pose them here. Thanks again.

    • Right on David, thanks for taking the time to comment, and thank you for the kind words. Good to know I’m trending on Reddit!! 🙂

      Kurt Dahl
      Entertainment Lawyer

  4. If an artist has been issued a non exclusive license/lease on a beat, is the producer entitled to publishing for that? Does it matter if it’s been licensed several times?

  5. Hi Kurt,

    Does fact that producer/recording engineer is paid based on pre-determined rate have an impact ?

    Thanks,
    Theo

    • Definitely Mason. Sometimes, the higher the fee being paid to the producer, the less likely they are to demand songwriting. The same goes for low rates…they often cause producers for ask for backend revenue (from songwriting).

      Email me with any questions.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  6. Hey 🙂 Someone brought me a backing track they had composed and I wrote a whole song to it, lyrics and melody. We agreed then to split that version 50/50. That was 12 years ago and nothing happend to that song. I2 years later I am using the lyrics and melody I wrote on a completely different backing track. Do I still recognise the original creator of the original music and still give 50% to him. Or what should I give him, if any?

    • Hi DJ,

      This is a very interesting scenario. Check out my article on What Rights You Have in a Co-Written Song. It’s hard to separate the music and lyrics once they’ve been put down on a recording.

      Email me to discuss further.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

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