A very common question I get asked by my musician friends and clients is whether they should give their producer songwriting credit on songs they’ve produced.
This question brings up a key distinction to be drawn between the Songwriting Copyright and the Sound Recording Copyright.
Record Points vs. Songwriting Points
Rather than give their producer songwriting points, recording artists would traditionally give their producer 2 to 4 points on the record. In simplified terms, this means that 2 to 4% of revenues generated from the sale of these records would go to the producer. So for each $0.99 iTunes sale, two to four cents would go to the producer. Only the sound recording copyright is involved here.
However, I’ve noticed an interesting thing happening in the last few years: as record sales (and therefore producer royalties) continue to decline, many producers are suddenly calling themselves songwriters. In some cases, it’s justified: I know a lot of producers that are also talented writers, and who sit down with the artists they record and help them take the songwriting to the next level. They might help write lyrics, add entire parts to the song, suggest structural changes, or change the chords and melodies.
If the producer is indeed a co-writer, they would be entitled to portion of the songwriting copyright, for the length of the copyright (the life of the writers plus 50 years in Canada). Once a songwriter, he or she will always be a songwriter of that song, likely for a hundred years or more. They will be entitled to revenue from radio play, use of the song on television, at sports games, and any other time the song is performed…for decades.
Giving up songwriting is a big deal, and a much deeper commitment than giving up points on the record. See my article on The Two Copyrights in a Song for a more in-depth comparison.
This leaves us with the million-dollar question: where is the line drawn between producing and writing?
Producer or Producer/Songwriter?
You as artist are paying – and likely a significant amount – to obtain the various services that a producer provides, such as offering their opinion of the songs, making suggestions on improving them, and suggesting changes to the arrangements. But do any of these things constitute producer songwriting?
For example, if a producer changes a single chord in the chorus of your song, is that producer songwriting? If they write all the lyrics to that chorus, is that producer songwriting? In my opinion, the answer to the former is no and latter is yes. Unfortunately, most contributions fall somewhere in between the two extremes, which creates a real grey area.
What does the law say?
In Canada, the question of whether the producer is entitled to songwriting was settled in the Sarah McLachlan case (see Neudorf v. McLachlan et al, BC Supreme Court). The court ruled that there must be proof of mutual intent between artist and producer that producer songwriting with the artist will take place, as well as evidence that such producer songwriting occurred. What this means is that bands and producers need to sit down before recording begins and discuss this important issue, and agree if the producer will get points on the record and/or on the song, or neither. Unfortunately, 90% of the time this does not happen, and things hit the fan when a song becomes a hit and the producer claims half of the songwriting.
While the issue of intent might be clear in some cases (i.e. was it discussed or not), finding evidence that producer songwriting actually occurred might prove to be difficult. See my article on What Constitutes Songwriting for more clarity. In the meantime, just know that as an artist, you should not be giving away any of your songwriting unless real co-writing is happening with your producer. And it should all be discussed before the “record” button is pushed.