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.

songwriting

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.

songwriting

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.

songwriting

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.

songwriting

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.

songwriting

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.

songwriting

44 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

  7. VERY RANDOM QUESTION: There’s a FAMOUS feud that happened between two well known artists last year, a male rapper and a female country/pop singer. The rapper called the country/pop singer regarding a verse in one of his songs. He claimed PUBLICLY that the song idea was hers and that she “helped him write one of the verses.” A witness in the room, and also the rapper’s wife, confirmed that the country/pop singer “helped write the song.” THEORETICALLY, is the country/pop singer entitled to a co-writing credit in this FAMOUS song?

    • They would need something more substantial than hearsay but if they could prove it in court, you never know! Something signed in writing is always your best bet.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  8. Thank you for this great information! I am currently in a band where I am bringing songs I have written (complete in terms of lyrics, structure, melody), but definitely not a “finished” product. I share my songs with the lead guitarist, who puts his ideas in, and then we present this to our bass player and drummer so they can learn the songs. The lead guitarist (who is also the producer) says we all split everything 4 ways in terms of songwriting credit, but I feel I’m giving up my rights or claim to my song every time I bring a new one to the group. This is not a position I want to put myself in, but I’m not sure how to handle it. I can see splitting everything 4 ways if everyone is involved in the creation of the song, but I’m not sure how to handle this. It seems like what was once my song, I’m now sharing with 3 other people, and I won’t be able to perform it with another band if any of these 3 people object.
    By the way, I’ve only been working with the current band for about 3 months. Any insight would be greatly appreciated!

    • Hi Lynn,

      At first blush, it sounds like you and your guitar player are writers. Not sure on the split, I would need more info and perhaps to hear the songs. Maybe 75/25 in your favour, but again, I need much more info.

      But you need to discuss with everyone and be honest with your concerns. Ultimately, the 4 of you can agree on any arrangement you like, but it needs to accurately reflect how the songs are written. In other words, you need to have an awkward conversation or you’ll be stuck with the status quo.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  9. Hi Kurt,
    Im in the process of recording an EP and agreed to pay my friend 150 to produce/arrange the music in his home studio. I wrote them on an acoustic guitar. The lyrics, melody, and chord structure are mine and he’s adding drums, backing vocals, lead guitar etc. I said in passing that if the songs actually got big I’d give him credit. I just assumed by adding instrumentation/producing, he would be entitled to royalties. Now that Ive read up on it, its my understanding that is not the case. Would it still be fair to give a small percentage of royalties even though he’s already being paid a flat rate? What if I get signed and re-record the songs in a professional studio and none of his work even remains on the record? Then what would be the point of paying out royalties in that case?

    • Hi William,

      My initial reaction is: your friend’s contributions are not songwriting, but I would have to hear more. Also, record royalties and songwriting are two different things. You could give him points on the record (i.e. record royalties) and that’s entirely different than songwriting. Email me to chat further.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  10. Good day

    Hi I’m from South Africa,I found your website/blog very helpful.

    i’m about to record a CD, currently have 2 singles,the first guy never really mentioned anything about credits i just paid him,the second one talked about percentages and he is the one i’m hoping to record the rest of my songs with,i also paid him.

    I write my songs,and i sing them..then we always work from there..beats,drums,keyboard,so he produce.Please enlighten me how is he still part of the song even though i pay him to record,and how much percentage is he entitled to

    • Hi Noma

      It really depends on how much the producer contributes to the compositions. Like if a producer added drums and bass to a Bob Dylan song, they wouldn’t get part of Dylan’s songwriting, for example.

      Email me for more

      thanks

      Kurt Dahl
      Entertainment Lawyer

  11. Hi Kurt,
    I have asked a jazz trumpet player to record aan instrumental lead/hook to a house track i made. We are now talking about the compensation. The artist would like to get a composer credit when their contribution is “composition material” and would like to be mentioned as a featuring artist. Which i’m open to, but… the big question then is how do we split this? What is a normal percentage for such a contribution? Are there any guidelines?

  12. Hi Kurt,

    I am collaborating with this producer from Norway and am I from California. He sent me the track/instrumental that was “work in progress” and is still work in progress( According to his soundcloud) to write lyrics and melody to it and I did. After I emailed him the lyrics along with my song idea, music and lyrics recorded to his track, he wants me to keep ajusting the melody and lyric to fit his track because he does not want any vocals on the first part of the drop( chorus in EDM music). He only wants vocals on the 2nd half of the drop. After we keep exchaging files, and I keep making modifications to both music and lyrics and he adjust the instrumental to fit those changes I go and record professionally the voice. After I start talkig to him about my cut in this entire project, meaning my royalties and that’s when it gets nasty. So, After I wrote the entire lyric and music to his track, and made all modifications he asked me, went on and professionally recorded the voice and paid out of my pocket, he only wants to give me 20%, explaining that a label would give me 10%! But he is not my label, did not invest a cent in me, I even paid $400 to record vocals and will have to pay more to professionally produce the vioce, cause he never ever produced voice and it’s terrible at that. He’s track sounds really good, resemble Kygo. I also came with the idea of chopped lyrics on the drop, and he agreed. I have all messages we’ve exchaged. I have not copyrighted the song yet, but I have videos, emails we’ve exchanged working on this song, my protools recording how this song came to live to where is right now, from my idea and all the smalls changes he wanted, here and there. Now, I haven’t sent him my vocals recorded professionally because we need to negociate the split royalities. We are both independent and don’t have any previous agreement. I spoke to a very experienced songwriter who wrote for Neil Diamond and he advised me I should get 50-50 with this producer on music and the lyric would be 20 for him and 80 for me, since I wrote the lyric. I was a little surprised, but agreed to give him 20 on the lyric. What do you think about this split?? Also, this producer wants my voice on his track, wants my creation, but he won’t share my name on the name of the track, featuring, which I find ridiculous and unacceptable. So, he said he will alow me to publish the song on Youtube and monetise it. It’s ridiculous. As a co-writer, I should be getting 50-50 with him on the publishing royalties, right? We are both unsigned! What is your advice and how would you do the split royalties? Who owns the masters in the end. Usually the master goes to the artist sining on the track, or to the label is the artist is signed, or is it diffrent in this case! Looking forward to your replay and advice. Thank you!

    • Hi Koryna

      It sounds like you need to have a frank discussion with the producer RE songwriting splits. Whatever splits you agree on, you need that put into a Producer Agreement. Then all radio revenues etc through ASCAP/BMI will be split accordingly. You also want to discuss master ownership and revenue splits. You should own the master, but often the producer gets “points” on the master, 2-5%. Hope this helps

      thanks

      Kurt Dahl
      Entertainment Lawyer

  13. Hi Kurt,
    If I am the main songwriter, (wrote 100% of a song) I had a bass player play my song in a demo— and then recorded the same song somewhere else with a different bass player, but they play a very similar line, shoukd i give publishing points to the original bass player? That only counts as arrangement correct?

  14. Great Article, Kurt!

    A friend replayed the main baseline of an old electro song for me and added drums and other sounds in Fruity Loop to create an entirely new song (I am clearing the use of the bassline). The entire concept was mine and he brought it to life as I don’t play instruments or use music programs. I wrote the lyrics and I am arranging the song. What is a fair songwriter split? He wants 25/75, my favor.

    • Hi Ronald,

      Totally up to the two of you, and I would have to hear the original song and the new one. But 75/25 sounds fair at first glance.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  15. Hi Kurt.

    Very informative article. Thank you.

    I’m in a different position. I’m translating songs into a different language. Is there any precedent on that? Should I receive any sort of credit? The song is not mine, but only the translation.

    There is a company that likes my translation, and would like to produce my song. However, they want all rights to my translation, and I believe will not produce anything unless I sign away all rights to it. Would it be too much to ask for a small percentage, say 1-2%, of any sales of the song in the language of my translation? What do you think?

    Thanks for your help.

  16. Hi. My producer has worked with me on an ep. we have a production contract and he does not own any of the rights or will collect any royalties. On one of my songs that was not finished he contributed to a couple lines in chorus- lyrics only and not music. It felt collaborative for that part and he had other structural ideas. This was the only song I was considering listing him as a songwriter more as a good karma gesture- but I don’t think he’s expecting royalties- all music is mine and most of the lyrics also mine. I just want to feel like I’m being fair and honest in this process. I have a co-writer for my other songs who definitely contributed much more musically and lyrically so that seems much more cut and dry as far as crediting- even there my co-writer is not expecting 50/50 in royalties as it was my project and I invested more in writing and financially to get it produced and recorded. I’m not sure what best way to approach this one song. My producer seems only concerned with being listed as main producer on his own line and I’m listed below as a coproducer. I’m fine with that per our agreement. And he said nothing about songwriting credit but I wasn’t sure best way to be fair. I want to build trusting relationships. What do you think? Thanks so much!

    • Totally up to your instinct Anita. A small songwriting % can be a nice gesture if you feel its warranted. But it can complicate things in terms of registration etc. You can also give a higher % of record sales (points). Whatever you do, get a Producer Deal in writing so its clear.

      Kurt Dahl
      Entertainment Lawyer

  17. If I buy a beat with an unlimited lease and it has a hook already on it and I write the versus es tothe song. Can I still copyright the hold song and can I get it published even though the beat maker has it published?

    Thanks,
    Mark

  18. How much precent I’m i entitled to for writing the hook to a song.
    I was told 25% for writing the hook is what the standard is .
    But i had a conversation with the rappers manager who i wrote the hook for he told me the standard was 15% .
    Is this true or is he trying to pull a fast one on me ?
    (Is it 25% for writing the hook & 15% for writing a verse ? Or is it the other way around ? )

    • There is no set standard for these things. It all depends on how good the hook is, how important the hook/verse is, etc etc.

      Kurt Dahl
      Entertainment Lawyer

  19. Hi Kurt
    I am the singer in a band and sings come to me our of the blue. I quickly write down the lyrics whilst singing the melody cos they come together. The verses just glow out then a chorus and the structure is all there. I sing it to myself over and over again till it sounds like I like anc this could take a week, and I might change a couple of words then I will sit down with a guitar to try and work out the chord progression that fits the melody. I am not a good guitarist and only know limited chords but get there in the end. My songs are blues. I take them to the band and try to explain to the guitarist how I want it to generally sound, the vibe if you will.
    Anyway we just perform here and there and are not going to be famous or record or anything but I am getting a bit peeved that the bass player announces on stage and to anyone who asks that I write the lyrics and that the guitarist writes the music. This makes me sound like a lyricist or poet which I feel diminishes my musical talents in that I can hear the whole song with all the instruments whilst I am writing but cannot obviously actually play them alL. I feel that I am the songwriter in the band. How can I convince the others? Obviously I will back down if you tell me that I am not. The guitarist tells the bass player what to play as she is not very creative but that is not my problem. She keeps carrying on how hard he works because he has to write the music for guitar and bass. The guitar and bass are really just playing standard blues progressions and he will work out a lead. I hope you don’t feel I am being petty but I don’t like being touted as a poet who needs someone to write the music to my words.

    • Sounds like you have a special gift. Ultimately, you need to discuss with your band mates on this, as it’s more a personal distinction than a legal one. I would have to hear the before and after of the songs from your version to the final version to fully understand things, but you are definitely a writer.

      Kurt Dahl
      Entertainment Lawyer

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