All writers have rights relating to the works they create. Rights cover a number of areas, which creates a potentially complex problem when things go wrong. As songwriter disputes are one of the most common legal issues experienced in the music industry, we’ve rounded up the key points for you to digest.
There are two distinct types of copyright involved in music:
- Musical Work / Composition copyright
- Sound Recording copyright
There are usually three different parties involved in controlling these copyrights:
- Producer (known as “maker” in the US Copyright Act)
The writer owns the copyright of the musical work. That said, with modern working practices and industry norms, it is not unheard of for producers to be included as a co-writer, or to be granted some portion of the songwriting royalty as some or all of the producer’s payment.
The performer and producer are typically granted copyright for the sound recording. Where the songwriter is also a performer on, or producer for, the sound recording, they will hold copyrights for both the musical work and the sound recording.
According to the Copyright Act Of 1976, 17 U.S.C. § 102, copyright protection subsists in:
“original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.”
The moment that the work is fixed, the song acquires copyright protection. A work is considered to be “fixed” when it is captured in a sufficiently permanent medium for more than a short time.
If there are two or more co-writers involved in creating a creative work, it is legally known as “a joint work”. A joint work is defined as:
“work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”
This means that when lyrics or music are created with the purpose that they will become part of a song, they do not become part of a joint work until the moment that the parts are combined in an audio recording, or they are combined in a lead sheet as words and music.
Up until the moment the parts are combined, from the moment of its creation, your work will have copyright protection and be eligible for copyright registration in its own right. At the moment the parts are merged together, copyright protection is then granted for this newly created joint work.
Co-writers of songs each own an equal interest in the whole song. You can agree to a different division of the ownership and the income percentages with your co-writers, however, if you don’t have a different agreement in place all the co-writers will each own an equal share of the song.
For example, if there are 4 co-writers, each writer owns a 1/4 share of the entire song.
It’s important to get your head around that it a percentage of the entire song, not the lyrics, or melody alone. All co-writers own a percentage of all the parts of the song if there are two co-writers each owns 50% of the lyrics and melody.
Separate ownership rights for parts of the song can only happen if there is written agreement. This is true for any deviation from the default co-writer terms that are in place when no agreement has been drawn up.
This means that if you ever find that you can no longer work with your co-writer it will be very hard to split the melody from the lyrics. Instead, you would both own half of the song.
Once a joint work has been created, one writer can’t simply remove a part of the joint song without the permission of all co-writers.
For example, if the melody writer decided to work with another collaborator to replace the lyrics they need written permission from the existing co-writers to do so. The original co-writer still owns their percentage of the resulting work. Their ownership is a percentage of the overall song, and the original co-writers percentage share of ownership of the song cannot be reduced by introducing a new writer without the original co-writers consent.
Any change, including the removal and replacement of their lyrics, is seen as a derived work of the original joint work.
To be clear, the joint work cannot be changed in any way without the express permission of ALL the owners of the copyrighted work.
Granting Exclusive and Non-Exclusive Rights
Exclusive rights cannot be granted by individual co-writers. This includes exclusive sync rights, the rights to create derivative works, recording rights, print rights or any other exclusive rights.
All co-writers have to consent to the granting of exclusive licenses. This is because song co-writers cannot administer the publishing rights of their fellow co-writers.
An individual co-writer can transfer their share of the publishing rights of a co-written song to a music publisher to administer on their behalf, but only their share. Of course, the other percentages can be administered by the owner or transferred to the same or different publisher.
Non-exclusive rights are licenses giving permission for specific usage of a song by a user. Each co-writer can grant non-exclusive licenses without getting permission from other co-writers. Non-exclusive licenses are common with sync licenses (used for movie and television) mainly because owners tend to want to license their work to more than one production. Sync licenses are quite lucrative sources of income.
All co-writers have a legal duty to account for any monies made from a song. If any money is received for the use of a song, all co-writers need to be given their fair share of that money. They should all also be told of the source of the income along with a copy of related accounting statements
Each co-writer also has a legal duty to accredit their fellow co-writers in all visual credit for any of the writers, this includes in print, on the internet, in film or anywhere else.
A Co-writer Agreement should be signed every time the writing of a song is shared.
Co-writing agreements are vital if you want your song to be used. The lack of appropriate documentation will cause production companies to drop your work immediately. This is true for advertising, television or film.
The point is, talk it over with your co-writers and get it down on paper. A songwriting split sheet is a start, but it’s not all you need. You would be wise to put together a full agreement that all the co-writers agree to.
Split Sheets / Co-writing Agreement
As a useful starting point:
Register With A PRO
If you are pretty serious about writing songs, it is a good idea to make sure you and your co-writers are registered with a collection society (PRO).
USA – BMI
USA – ASCAP
USA – HFA (Sync Rights)
UK – PPL (Sync Rights)
You can find a full list of PROs here.
PROs distribute royalties to registered songwriters from around the world (based on the PROs in other countries that they have collection agreements with. When your song is performed On the radio or TV, or in a venue You should be due a royalty payment.
The exact mechanism varies from country to country, but essentially venues and broadcasters pay PROs a license fee to broadcast music. Each performance of a song gets recorded (automatically or manual reporting) and a royalty gets distributed The amount depends on audience size.
Songwriters have to register each song with their PRO.
For joint works, any royalty payments are distributed amongst all co-writers.