Who owns the copyright of a song that I wrote with someone else?
It’s often the case that more than one person has a hand in writing a song. Think of all the famous songwriting partnerships: John Lennon and Paul McCartney, Mick Jagger and Keith Richards, Bernie Taupin, Elton John, and so on.
It’s not difficult to understand that a song can have multiple authors when you realize that each member of a rock band will often have input over the portions of songs that they contribute to. Even though one or two people produce the lyrical and melodic background of a song, many band members develop and refine their instrumental parts during recording.
When a singer who isn’t a musician (like Mariah Carey) approaches a producer or production team (like Swizz Beatz) to write a hit song, it’s often the case that the singer will still have input into the musical direction of the song, or at least contribute to the lyrics. For example, Madonna writes melodies and lyrics, and her co-writer, Pat Leonard, “figure[s] the rest out.” [ Peter DeVries, The Rise and Fall of a Songwriting Partnership]
The credits on some rap albums can read like laundry lists. Just looking at a random song Kanye West released in 2010, “So Appalled” (featuring Kanye West, Jay-Z, Pusha T, Prynce Cy Hi, Swizz Beatz, The RZA) had a whopping nine people who shared songwriting credit:
Ernest Wilson
Terrence Thornton
Shawn Carter
Cydell Young
Robert Diggs
Mike Dean
Manfred Mann
Kaseem Dean
Because of how collaborative the music-making process is, songs that have multiple authors are just as common as those with a sole author.
A similar situation with multiple authors arises when songwriters collaborate with producers. If the producer rewrites some of the songwriters’ lyrics, he could considered an author of the song.
How copyright law will treat a co-songwriter partially depends on whether or not you have an agreement with your co-write. It also depends on both the nature of that agreement (what the agreement actually said) and whether it was written or oral.
If you don’t have an agreement
There are no statistics to confirm this, but it’s almost certain that the vast majority of songs written by multiple writers and musicians are not subject to any agreement regarding the ownership of the song. Without an agreement, a song written by multiple people is subject to the default rules of the Copyright Act.
Absent any agreement to the contrary, you and your co-writers are joint authors in the work. Joint authorship is a bit difficult to understand conceptually. It does not mean you and your co-author are 50/50 owners in the work. You and your co-authors are actually all 100% owners of the work. Everyone who adds to the work, as soon as they add enough material and input to meet the requirements to get copyright protection, has a full right to exploit the work in any of the ways that sole owner could.
Joint owners of songs are subject to several additional obligations to the their co-owners that sole owners aren’t subject to. For example, although any co-author can license a song and make money off of it without the knowledge or consent of any of the other co-authors, the co-owner has a duty to account for the money made with the work and share that money with the other co-authors.
If you have an agreement
While the majority of all songs written do not have agreements between the co-writers, the majority of commercially-released, major label songs have agreements in place either before or after the song is written.
Although it’s best to have an agreement in writing before you begin writing songs with another person, the idea that you have to draft and sign a contract each time you sit down with someone to write a song is not only impractical, but also a pretty big buzz kill.
That said, agreements are written at this stage mainly so everyone in the room knows, in advance, what they are entitled to when the song is finished and how ownership interests will be divvied up. Getting everyone on the same page ahead of time is a goal that you should strive for even if it isn’t written down.
For songs that you know ahead of time will released commercially, several things should be understood in advance: payment, credit, rights.
Payment and credit are straightforward. For the former, you should know how much money will each person get if the song is a financial success. For the latter, you should know who will be named as writer(s) of the lyrics and writer(s) of the musical composition for the song.
These agreements can be reached informally and orally, but when the potential for commercial success is great, it may be wiser to work this out in writing. What can’t be agreed to orally is a transfer of rights. Rights (who actually owns the song) is something that can only be exchanged in writing.
Whenever co-writing a song, you must be concerned about rights. Without an agreement otherwise, co-writers are joint copyright holders who both have equal rights to use the work for whatever they desire. However, the share of ownership may differ, so they could be 50/50 owners, 30/70, or whatever.
Always find out if your co-writer is registered with one of the Performing Rights Organizations (BMI, ASCAP, etc.). If you are part of a different Performing Rights Organization you may need to separately register the song to get royalties for public performances of the song. Even if you are a part of the same Performing Rights Organizations it's always a good idea to make sure your co-writer registered the song properly.
Additionally, be aware that with a recorded song, there are two separate copyrights at work: one for the actual song and one for the sound recording of the song. If you’ve written a song that’s never been recorded, then you own the copyright to the song so long as you’ve written it down. But, if someone records your song and pays the standard royalty amount, then they own the copyright to that cover recording.
As for the recording itself, don’t assume that you own it simply because you are paying the producer a fee for his time. There may be a clause in the producer's standard terms of business that states that he owns the copyright, or possibly a share of it. It’s also possible that the legal system wherever you live might automatically grant the producer copyright, like a wedding photographer keeps copyright in their photos, even though they have been paid to take them.
It is in your best interests to not share any of the copyright in the recording with the producer. Instead of granting the producer a portion of the copyright, it would be better to pay a fee to the producer for his work. Or you could agree to give the producer a royalty.
If you are a musician with questions about who owns the copyrights a song that you cowrote with another songwriter or you need help drafting an agreement with your cowriters, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
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