Who Wrote That? Best Practices for Songwriters

Humans have been creating and performing music for thousands of years. Some of the earliest discovered songs date back to the ancient Sumerians with musical notations inscribed on clay tablets and tomb walls. Indeed, the history of music is inextricably intertwined with the history of humanity and songs have long been employed to chronicle and communicate knowledge, in addition to contemporaneous stories and folklore. In the words of Henry Wadsworth Longfellow, “Music is the universal language of mankind,” capable of connecting diverse peoples by transcending time, geography, and culture. From Mesopotamia to Greenwich Village, songwriters have been transcribing the vibrations and sounds emanating in their heads for the purpose of sharing those creations with others. For legal copyright purposes, the act of writing or recording original lyrics and melody is the threshold requirement to trigger copyright ownership in favor of the writer.

Under the U.S. Copyright Act, the author (writer) of the song owns the copyright in that song the moment it is fixed in a tangible form. But what about when two songwriters collaborate in writing a song? Or when a studio producer, band member, or session musician contributes to 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 writers collaborate in writing 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 the persons involved. Furthermore, even de minimis contributions by other participants, such as band members or even a visitor off the street, can be sufficient to bestow an equal ownership interest for the contributors.

The best way to avoid these unintended outcomes is for writers, producers, and recording artists to memorialize their intentions and expectations in a signed writing — preferably at the outset. In most instances, a so-called split sheet may be used to outline ownership splits, in addition to other related terms, such as administration and publishing rights, conditions and restrictions for third-party uses, first recording rights, and authorizations for changes to the lyrics and/or arrangement. In some instances, songwriting splits and ownership rights might be addressed in a producer agreement, band member agreement, or the often inaccurately titled work-for-hire agreement. While the format is generally less important, the requirement that the intention of the writers and contributors be documented in a signed writing is both necessary and indispensable. In other words, the failure to secure a signed agreement means the songwriter and his very lucky roommate might be considered Lennon and McCartney (50/50 co-owners) for purposes of that song they were kicking around last night.

Creatives often hate to talk “business,” particularly when the proverbial creative juices are flowing. Nothing can kill the bright flow of inspiration quite like a lawyer and a contract. Nonetheless, the best time to determine ownership splits for a song is either before the writing session begins or in “real time.” Anything 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 acutely unfavorable to the songwriter and that roommate who suggested a few words for the chorus has little incentive to surrender her equal ownership share after the song hits the airwaves. The musical catalogue of humankind is an astoundingly vast treasure trove of songs and verse. Unfortunately, that catalogue is also littered with the sad tales of far too many unprepared songwriters. Be prepared!