Law Office of Alan Korn

Specializing in art, entertainment, intellectual property and business law.

CO-AUTHORS AND MUSICAL COLLABORATION

This column of the Fine Print explores some of the legal issues which may come up when two or more individuals create a song. Because of the amount of material covered here, our discussion of cover songs is deferred until next month.

WHAT IS A JOINT WORK?

Under the Copyright Act, a “joint work” is created when two or more authors intend to merge their original contributions into a single work. While the authors don’t have to be in the same place at the same time, there must be an intent to create a joint work at the time each contribution is made. To be a joint author, a person also needs to make an independently copyrightable contribution to the work. This contribution must be more than secretarial assistance, offering general directions or suggesting “ideas” (which are not protectable under copyright law).

In some circumstances, writers who are employed to collaborate on songs may be asked to create a “work made for hire,” in which the copyright vests in the employer (or music publisher, as the case may be). Be very careful whenever you see this language in a partnership or songwriter agreement. If a song is a “work made for hire,” you may be signing away your rights to any authorship and future income from this song.

HOW IS A JOINT WORK CREATED?

The early songs of Lennon and McCartney are good examples of jointly created works. In their early collaborations, Lennon and McCartney intended that their original contributions would be combined to create a single composition.

On the other hand, if Paul McCartney were to discover a pre-existing poem by John Lennon and set it to music, he would not be the co-author of the resulting work. This completed song would instead be a “derivative work” under the Copyright Act. This means Paul McCartney could be sued by the copyright owner if he used this poem without permission. (As I noted in my column on sampling, when creating a derivative work it is necessary to have the permission of the author of the underlying work, unless it falls within the public domain).

Unfortunately, musical collaboration in real life is not always so straightforward. Whether or not a song is a “joint work” depends on the factual circumstances. For example, imagine that a friend writes an instrumental dance track with a great keyboard riff. Later, you independently create a vocal melody and lyrics for this instrumental. Have you and your friend created a jointly authored work? The answer depends on whether your friend viewed the instrumental as a completed work when it was finished. If not, there is a strong argument that you helped create a joint work. However, if your friend had no such intention, then your friend would own the copyright to the original instrumental and you would own a separate copyright to the vocal melody and lyrics. If your friend refused to license or permit you to use the underlying music, you can be sued for copyright infringement if it later forms the basis of your derivative song.

Of course, it is not always easy to establish whether there was an “intent” to create a joint work. However, “intent” to merge contributions has been interpreted broadly by some courts. In one famous example, a court ruled that the song “Melancholy Baby” was a joint work, even though the music publisher hired a total stranger to write new lyrics. Because the original lyrics were originally contributed separately by the author’s wife, the court ruled it was sufficient that the author of the underlying music had “intended" to merge his music with lyrics at a later date. The court concluded that the author of the original music and the new lyricist hired by the publisher were co-authors of a joint work, despite the fact that they had never met.

WHO OWNS A JOINTLY CREATED WORK?

In a joint work, each author is considered the co-owner of the entire copyright. Any co-author has a non-exclusive right to perform, reproduce and license the work without the consent of the others, as long as they account to the others for any income received. However, a co-author cannot grant exclusive rights to the song without the written consent of all other co-authors. Unless there is a written agreement concerning how the income should be split, all profits from the song must be shared equally between the authors. This is why many bands address the issue of how to split songwriting income in their partnership agreements.

CAN A CO-AUTHOR TRANSFER THEIR JOINT COPYRIGHT INTEREST?

Yes! If a joint copyright owner dies, copyright ownership passes to that person’s heirs, rather than the surviving co-authors. Copyrights may also be considered community property between married couples in some States, creating a special form of joint copyright ownership between spouses. In addition, a co-author can transfer or sell their interest in a joint copyright to a third party. In each instance, someone other than a song’s co-author may acquire the ability to license the song without consulting the co-authors. Because a former band member’s heirs or ex-spouse can conceivably license your song to advertise denture adhesive, many bands include language in their partnership agreements limiting these business and artistic decisions to co-authors only.

IF I CO-WRITE A SONG WITH MY BANDMATES AND LATER QUIT, CAN I STOP THE BAND FROM PERFORMING OR RECORDING THAT SONG?

Not really. Because each author is considered the co-owner of a joint work, the other co-writers can continue to record and perform the work without your permission (as long as they account to you for your share of any income earned). Of course, you can also record and perform this song without their permission as long as you account to the other writers. These co-authors can also license the song to others on a non-exclusive basis as long as they account to you for any income received, but they cannot enter into any exclusive publishing or administration deal concerning this song without your written permission.

CONCLUSION:

Advances in technology continue to make possible new forms of musical collaboration. The invention of audio tape made it possible for jazz musicians to turn spontaneously improvised pieces into fixed compositions, and digital technology now permits individuals who have never met to spontaneously create and record new works.

No matter how the music is created, it is important for songwriters to know their rights as co-authors. Because misunderstandings sometimes occur, it is always advisable for songwriters to have a basic written agreement concerning songwriter credit and how any income should be split. Unfortunately, written agreements are usually the last thing a songwriter wants to deal with when collaborating with a friend or bandmate. This is one reason why partnership agreements between band members can be important. I will return to this issue of how songwriting income can be divided between band members in a future column on band partnership agreements.

Alan Korn
Law Office of Alan Korn
1840 Woolsey Street
Berkeley, CA 94703
Ph: (510) 548-7300
Fax: (510) 284-3750
email: alan [at] alankorn [dot] com
www.alankorn.com