Who wrote this? Best Practices for Songwriters | Arnall Golden Gregory LLP
Humans have been creating and performing music for thousands of years. Some of the earliest songs discovered date back to the ancient Sumerians with musical notations inscribed on clay tablets and tomb walls. Indeed, the history of music is inextricably linked to the history of mankind and songs have long been used to tell and communicate knowledge, in addition to contemporary stories and folklore. In the words of Henry Wadsworth Longfellow, “Music is the universal language of mankind”, capable of connecting diverse peoples across time, geography and culture. From Mesopotamia to Greenwich Village, songwriters have transcribed the vibrations and sounds emanating from their heads in an effort to share these creations with others. For legal purposes of copyright, the act of writing or recording the original lyrics and melody is the threshold required to trigger copyright ownership in favor of the author.
Under US copyright law, the author (writer) of the song owns the copyright in that song at the time it is fixed in tangible form. But what about when two songwriters collaborate on writing a song? Or when a studio producer, band member, or session musician contributes a lyric, riff, or arrangement? The answer is “it depends”. Applicable law provides that in the absence of a written agreement to the contrary, when two or more authors collaborate on the writing of a song, then that song is considered a “joint work”. This means that each individual writer owns equal shares of the song, regardless of the actual contributions of those involved. Moreover, even de minimis contributions from other participants, such as band members or even a street visitor, may be sufficient to confer equal ownership on contributors.
The best way to avoid these unintended outcomes is for writers, producers, and recording artists to record their intentions and expectations in signed writing – preferably at the beginning. In most cases, a so-called split sheet can be used to describe ownership splits, in addition to other related terms, such as administrative and publishing rights, terms and restrictions for uses by third parties, the first recording rights and the permissions to modify the lyrics and/or the arrangement. In some cases, songwriting shares and ownership rights can be addressed in a producer agreement, band member agreement, or the often inaccurately titled work-for-hire agreement. Although the format is generally less important, the requirement that the intent of authors and contributors be documented in signed writing is both necessary and indispensable. In other words, the failure to get a deal signed means the songwriter and his very lucky housemate could be considered Lennon and McCartney (50/50 co-owners) for the purposes of that song they were playing yesterday. evening.
Creatives often hate talking “business”, especially when the proverbial creative juices are flowing. Nothing can kill the bright flow of inspiration quite like a lawyer and a contract. However, the best time to determine ownership shares of a song is either before the writing session begins or in “real time”. Later is too late and, potentially, a recipe for heartache and regret, if not a legal battle. The default “joint work” rules established by the Copyright Act can be hugely unfavorable to the songwriter, and that roommate who suggested a few words for the chorus has little incentive to give up her share of equal ownership after the song airs. Humanity’s musical catalog is a surprisingly vast treasure trove of songs and verses. Unfortunately, this catalog is also littered with the sad stories of far too many unprepared songwriters. Be ready!
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