Under the US copyright law, an author or
creator owns a copyright in his or her work the moment it is “fixed in a
tangible medium” (i.e., the moment the expression of an idea is written down or
recorded in some manner). When it comes to the recorded music business there
are two primary copyrights of interest: one in the musical composition or song;
another in the sound recording of that song. A copyright extends for the life
of an author plus 70 years, and in the case of collaborators on a copyright it
extends for the life of the last surviving collaborator plus 70 years.
This article will focus on the
collaboration between and among the co-writers of the musical composition or
song which is generally comprised of the music (e.g., melody, harmony, chords,
rhythm, etc.) and the lyrics (i.e., the words). The essence of collaboration is
working together to create a single work regardless of how or what each party
contributes. Collaborators may work together in the same room at the same time,
or not. The creative contribution of each co-author may be equal in quality or
quantity, or not. Both authors may work together on the music and lyrics or one
might write just music and the other lyrics. The long history of collaboration
has shown that there are endless combinations. Co-authors do not need to have a
written agreement concerning their joint work, but it is probably a good idea to
do so given the myriad issues that can arise and become a problem under such
circumstances.
Co-writers can divide copyright ownership
in whatever proportion they determine, and that ownership concerns both rights
(ownership and control) and revenues (income generated). In the absence of a
written agreement, under current case law concerning both copyright and
partnership law two or more collaborators are generally deemed to share equally
on a pro rata basis. This might be so even if it is clear that the contributions
of the authors were not equal since the Courts generally prefer not to make
decisions about the value of each author’s contribution to a copyright and
simply divide it by the number of authors (and we probably prefer that Courts
not be making decisions about whether the hook or chorus lyric has more or less
value than the chorus melody, etc.). Therefore, without a written agreement two
songwriters would be deemed to own the song fifty-fifty, three songwriters
one-third each, etc. A typical music business guideline for dividing ownership has
been to designate the music as 50% and the lyric 50% of the song copyright. Under
this scenario, if one person creates the music and two others write the lyrics,
they may agree to divide the ownership 50% to the music creator and 25% to each
of the lyricists. However, this concept does not have any legal significance so
if there is no written collaboration agreement then under this scenario each author
would own 1/3rd of the song copyright.
Beyond the issue of just dividing
the income there arises the issue of copyright ownership and control (sometimes
referred to as the administration right). Many songwriters prefer that there be
separate administration among the various writers and their respective publishing
companies, if any. In other words, each author retains control over its
respective share of the copyright. In this way each writer retains some control
over what happens with the song, the scope of the licenses and how much is
charged. Under US
copyright law, each joint copyright owner can exploit the song and also grant
non-exclusive licenses to third parties subject to the duty to account to the co-writers
for any money that is generated. Each writer could also transfer some or all of
their respective share of the copyright (e.g., to a publishing company) without
affecting the ownership interests of the any other co-writer’s share in the copyright
(although no one writer can grant an exclusive license nor transfer copyright
ownership in the entire song without the written permission of each co-writer).
All of these issues can be addressed
in a written collaboration agreement. There are endless variations depending on
the circumstances. Each author may retain his or her share of revenues and
ownership but grant the administration rights to one party (e.g., the
artist/co-writer and/or its label) so that the artist would have the right to
record and exploit the song and grant third party licenses. Particularly in the
world of synchronization licenses (i.e., using the audio with visual images
such as in film, television or video games), it is usually more convenient for
one party to have the right to grant licenses and to collect and divide all the
income. Licensing can become complicated when a licensee has to seek the
approval of, and document permission from, multiple writers and their
respective publishers. However, each different scenario and the co-writers
involved will need to determine and negotiate what arrangement works best for
themselves in that particular situation.
A collaboration agreement can be as
simple as a pie chart drawing made on a napkin at the dinner after the writing
session or as complicated as a writer’s publishing company dictates that it be.
Over the years there have been many stories of writers agreeing, however
reluctantly, to acknowledge a “co-writer” who did not even make a contribution
to a song (e.g., featured artists, producers, record executives, band members,
etc.). The exact contribution to a song is always a somewhat subjective
measurement and if the price of getting a song on the record of a multi-platinum
artist is to share writing credit then this pressure can be difficult, if not
impossible, to resist. However, keep in mind that once a “co-writer” is
acknowledged in writing it can be very difficult to undo. Most successful songwriters
rarely, if ever, share credit in this context and every writer should try to
follow this practice.
At the end of the day, if you
believe in yourself and your talents, give yourself the benefit of the doubt,
and invest in good legal representation - all the successful songwriters do.
Your lawyer can create a fair collaboration agreement for you to use or "translate"
the documentation presented to you and explain its terms and then help
negotiate more favorable terms for you as appropriate. My advice: never sign
anything - other than an autograph - without having your entertainment lawyer
review it first.
