written by: David Frazee
You’ve just finished writing a new song, and you think your band should play it at your next gig. After you play the song for the other band members, your lead singer comes up with a great a bridge and your bassist suggests some great chords. You make those changes and run through it a few times. Your drummer’s friend, who was just hanging out, suggests that you pick up the tempo. After he leaves, you try it, and it takes the song to the next level.
Who is the author(s) of the final song?
This is one of the first question in any copyright lawsuit, and it is an important question because only an owner (or “author”) is endowed with the initial rights that come with a song, as discussed in my earlier articles.
There are two things that you should know:
- what can you copyright, and
- who are the authors of the final song
Since I am willing to bet that, when a great song idea comes to you, you do not stop and contact a copyright lawyer before writing it down or playing it for your band, let’s cover these basics before you begin writing your next song. Let’s get started.
To Be Copyrighted, It Needs To Be Original
Before we cover ownership, you need to be able to identify when you have a work that can be copyrighted. For a song or work to be copyrightable, it must be original. Originality has two ingredients:
- creativity, and
The “creativity” required is minimal, but it does mean you come up with something more than minor, inconsequential additions to common phrases. Whether it is the melody, harmony, or rhythm, you need something to distinguish your music.
Second, you need “independence.” Independence simply means you cannot copy someone else’s work. It must reflect your own contributions and thoughts.
creativity + independence = originality
originality is needed for copyright
copyright is a sign of ownership
Seems easy enough, right? It’s not always so clear cut; your subconscious can trick you into thinking you did not copy someone else’s work when you really did. This happened to singer and songwriter Michael Bolton. Bolton had grown up listening to artists like the Isley Brothers, who had created and copyrighted a song titled “Love is a Wonderful Thing”. Nearly thirty years later, Bolton unintentionally created a hit song of the same title and with a similar sound. Even though Bolton was convinced that he had not copied the Isley Brothers’ song, the court ruled in favor of the Isley Brothers, saying Bolton’s subconscious had tricked him into thinking he wrote an original song. The unintentional trick was not enough of an excuse, and the jury awarded the Isley Brothers all profits from the song and some of the album profits (for a grand total of over $5 million). Yikes!
To avoid originality problems, try playing the song for someone else to see if they think it sounds similar to anything they’ve heard before.
Why is Ownership/Authorship So Important?
The author is the person who actually created the work, who translated an idea into a fixed, tangible expression. This process of creating and fixing entitles the author to copyright protection.
Because of the rights that come with ownership, it’s a key topic during many copyright lawsuits. Reasons for this include:
- Unless you agree to other terms, co-authors are given equal ownership in the resulting work, regardless of how much originality and creativity they actually contributed.
- A co-author is permitted to continue recording and performing the song without fear of infringing the copyright. This generally applies even if you leave the band or the band splits up.
- One co-author can agree to give other performers (or companies) a non-exclusive license to play and record the song without obtaining the permission of the other authors. However, the only way to give away the exclusive rights of the song to another would be to get permission from all the co-authors.
As you can see, there are huge benefits to being named a co-author, as well as huge benefits to maintaining sole authorship. Unless details are set ahead of time, things can get pretty messy in court.
To avoid these issues, many bands enter into a contract with each other called a partnership agreement. The agreement can address how to split songwriting income and how to decide authorship when only one or few members help write the song. Additionally, they can prevent one co-author from providing a non-exclusive license to another without the other authors’ consent. You should consult with a copyright attorney before signing or entering into any partnership agreement with your band members to protect your rights.
Determining Who Owns the Copyright
Now that you understand what can be copyrighted and why copyright is so important, let’s discuss ownership, namely how to know if you own the song solely or share ownership with someone else. We’ll assume you didn’t have a partnership agreement, and we’ll use an actual case to illustrate this issue.
During a recording session for his hit song “Izzo (H.O.V.A.),” Jay-Z was joined by a guest, Demme Ulloa. While she was visiting, Ms. Ulloa spontaneously created and began singing a countermelody to the song. Jay-Z heard the countermelody. Ms. Ulloa left the studio with an agreement that she would get credit if Jay-Z decided to use the countermelody, which he did decide to do.
Jay-Z had created the song. Logically, he would be the sole owner. However, that countermelody throws a wrench in things. Had it not been used, Jay-Z would unquestionably be the author of the song. But it was used; furthermore, their agreement didn’t discuss ownership or authorship… just credit. After Ms. Ulloa discovered that Jay-Z had used her countermelody, she filed a lawsuit against Jay-Z and other defendants, claiming she was a co-author of the song.
So, does Jay-Z now have to share ownership of the song with Ms. Ulloa?
Let’s go back to our criteria for ownership: it must be copyrightable, so it must be original. Like a melody or rhythm in a composition, countermelodies generally can be copyrighted on their own, separate from the song’s other parts. Even though Ms. Ulloa’s countermelody was based on the original underlying melody, the court said it contained enough originality to be copyrightable.
However, having something that is copyrightable did not automatically mean that Ms. Ulloa and Jay-Z were “co-authors” of the song. For Ms. Ulloa to share in ownership, her situation must qualify as one of the exceptions to sole authorship:
- the joint work exception, and
- the work created for an employer exception
It was over these exceptions that Jay-Z, the other defendants, and Ms. Ulloa argued during the lawsuit. Let’s look a little closer at them.
The Copyright Act defines joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”
For joint ownership to be present, the individuals involved must intend to be co-authors of a song. This is more than simply working together; it’s the intent to be co-authors of a copyrightable work.
In the Jay-Z case, Ms. Ulloa claimed that she was a joint author in “Izzo (H.O.V.A.)” because she added a countermelody. After Ms. Ulloa sang the countermelody for Jay-Z, they discussed the possibility of incorporating it into the work. However, she did not sign a contract or discuss any terms beyond receiving credit as the vocalist (if her countermelody was eventually used). The court decided that Ms. Ulloa’s claim for authorship had no basis because there was no evidence that Jay-Z intended to share the authorship of the track with her. Briefly working together was not enough to show the needed intent.
Interestingly enough, you can be co-authors with someone you have not even met. While it may be easier to conclude a joint work has resulted if the authors have met in person or know each other, it is not a requirement. All that is required is the authors intend their work to be joined with the work of another.
How does joint authorship work with people who haven’t met? Imagine a musician, John, composes some new music; John takes that music to a publisher to find someone else to add lyrics. The publisher buys John’s music and asks Lauren, who John does not know, to compose lyrics to accompany John’s music. Although John and Lauren had never met before, when their work is merged into one song, they become joint authors in the final composition. This is because both understood and intended their work be joined with another person’s work.
US Copyright Law also molds an exception for employees hired to create songs for their employer, called “work made for hire.” Instead of staying with the author, the author’s employer owns the rights to the work. Generally, this occurs because the author signed a contract (containing a clause to that effect) before the song was created.
Here are two examples of “work for hire”:
- Let’s say John is hired as a writer and composer of advertisement jingles at ABC, Inc. The copyright for the jingles John creates will likely not be John’s but will belong to ABC, Inc. This meets the work for hire criteria, specifically “work prepared within the scope of employment.” It is John’s job to create these jingles; it is why he was hired.
- Now, say ABC, Inc. wants to place the same advertisement in Spanish. They hire Ben on a limited basis to translate the work. Even though Ben altered the lyrics, the copyright to the Spanish version remains with ABC, Inc. This is the second category of the work for hire exception, called “specially commissioned work.”
While different, both derive from the same concept: you can give away your rights to a song before you even write it. So, if you try to claim it as your own, it is stealing your employer’s property.
Now, there are exceptions to the “work for hire” concept. Let’s say that, while employed writing jingles for ABC, Inc., John wrote songs for an album. His employer would not own these songs unless the employee contract John signed gave ABC, Inc. rights to the songs in addition to the jingles.
Now, back to the Jay-Z case. Jay-Z argued that Ms. Ulloa was an employee because she signed a tax form with his company. To Jay-Z and the other defendants, this was enough to make the countermelody company property. However, the court did not agree. Even though Ms. Ulloa was somewhat inexperienced and filled out a tax form, the court found that she independently possessed the skills necessary to produce an original work and had only filled out the tax form to contact the defendants.
Now that you have some basic concepts, let’s go back to the scenario that started this article.
As we discussed, the most important question is whether you and your band intended to be co-authors at the time you wrote the song. Chances are the court will find that you intended to be co-authors with your band members, especially if you have co-authored songs in the past.
However, if you and your band have a written agreement that the authors are only the members that contributed copyrightable work to the song, then you, your lead singer, and your bassist at the very least will be co-authors. Remember, unless your agreement says otherwise, each member who contributed to the song will have equal ownership regardless of how much originality and creativity they actually contributed. However, if you and your band previously decided all songs created by band members were the bands collectively, each member will have an equal ownership in the song regardless if they contributed to the song at all.—
But what about your drummer’s friend who suggested you take the songs up tempo? More likely than not, your drummer’s friend is not going to be a co-author because his suggestion is not going to be considered “copyrightable.” Additionally, like Ms. Ulloa in the Jay-Z case, there is no evidence that you or your band intended to create the song with your drummer’s friend.
Disclaimer:The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.