Songwriting Copyright Basics Part II
If you haven’t read my “Songwriting Copyright Basics” blog post, I suggest you do so before reading this one. Now, let’s say you co-wrote a song with someone else, or multiple someone-else’s. What’s the deal with the copyrights then? Let’s say you wrote the lyrics to a song and your songwriting partner wrote the music. You might think that you own the copyright to the lyrics, and your co-writer owns the copyright to the music. Actually, unless you agree otherwise, the law presumes that you each own an undivided equal share (in this case half) of the entire song – lyrics and music. If you are in a band and five of you write a song together, then each of you owns 20% of the entire song, regardless of the individual contributions of each member.
There are two ways this can cause problems. First, there can be a great deal of resentment and friction in a band if the individual songwriting contributions are not equal but the songwriting income is shared equally. Second, because each writer has equal rights to the entire song, they can do whatever they want with the song, as long as they pay their co-writers their share of any money the song earns. If one of the songwriters licenses the song for a hot dog commercial, and another songwriter is a steadfast vegan, there will be trouble. Guaranteed.
Fortunately, both of these potential problems can be avoided by using a “copyright split and administration agreement” (which is actually two separate agreements, but often combined in a single document). The legal presumption of equal ownership of the copyright by all the songwriters only applies if they have not agreed otherwise. The songwriters can agree to divvy up ownership of the copyright any way they want. So, for example, if one person is the principle songwriter, and writes all the lyrics and the main melody, which is usually the vocal melody or main riff and is called the “top line” melody, and the other songwriters build additional melodic and rhythmic elements that fill out the song, you might agree that the main songwriter gets 50% and the other songwriters split the remaining fifty percent. You can even split the copyrights with non-writers. For example, if the singer and guitar player write all of the songs, and the bass player and drummer don’t write at all, the writers may agree to give the non-writers part of the copyright as a matter of good faith. This can also be important to keeping the peace in a band; if a song starts to be very successful, you can quickly find yourself in a situation where the songwriters are rolling in money and the non-writers still have to work their day jobs. This can break a band up faster than you can say “royalty check.”
There is also an important distinction between songwriting and “arrangement.” In my practice, I see a lot of confusion about even the basic concept of what makes a song. In the simplest terms, a song (other than an instrumental or a cappella song) consists of lyrics and melody. If one person creates the lyrics and melody, they’ve written the song. Creating instrumental parts to go with the lyrics and melody is not “songwriting,” but merely arrangement. I recently had a producer insist that he should get 50% of the copyright because my client had “only written the lyrics and melody,” and he had “written the music,” because he did the instrumentation on the recording of the song. I had to explain to him that the “lyrics and melody” is the song, and that what he had none was merely a musical arrangement of the song.
Where you cross the line from “arrangement” to “songwriting” is not black and white. At some point, additional contributions that fundamentally change or enhance existing lyrics and melody are contributions to the songwriting. The issue of “who is a songwriter” is especially prevalent in the rap, hip hop, and EDM genres, where producers and beats-makers have a fundamental role in creating the music, and it is customary to give them significant splits in the songwriting. Also, when a “featured artist” or remix version of an existing song is made, it is a derivative work, with its own copyright to be split up. Depending on the clout and the contributions of the featured artist or remix producer, they can get anything from just a flat-fee and zero percent of the copyright to substantial up-front fees and a significant percentage of the copyright in the new version.
It is up to the people involved in the creative process to discuss their contributions and come to an agreement as to what they will receive for their efforts. It can be anything you negotiate, but it is extremely important that you figure this out up front, while everyone is still around and happy with each other. Trying to hunt people down and sort this stuff out months or years later is a nightmare, and it is way, way cheaper to just get it right, right then when you create the song, than to try to fix it later.
Now, back to the hot dogs and the vegan. Just like you can have a copyright split agreement, you can also have an administration agreement that specifies who can control how the song is used. Again, this can be whatever you can imagine, from a single songwriter controlling, to everyone having to agree on all uses, to everyone being able to administer the rights except as to certain “restricted uses” that everyone agrees are off limits or require unanimous approval, or any other arrangement. But, just like with copyright splits, the time to decide who will have administration rights over the song is at the time you create the song.
Working out copyright splits and administration doesn’t have to be a big deal. I know it’s difficult to think about “business” when you’re in the heat of creativity, but at some point in the process, like when you are finishing mixes and are sitting around the studio drinking beer and eating pizza, bring it up, talk it out, and write it down – I don’t care if you just scribble names and percentages on a cocktail napkin, but put it in writing. Then you at least have something to take to your entertainment attorney who can then put it into a proper agreement for everyone to sign.
Thomas A. Player
Entertainment Attorney