Pete Bott, music, media and entertainment solicitor at Blacks Solicitors, examines the mechanics of songwriting authorship and ownership. He explains why it’s good business sense for new and emerging artists to get their creative claims out in the open from the very start to avoid disputes down the line…
Take a quick look at the writing credits for songs in the current UK mainstream, indie, urban and dance charts and it’s clear that we live in an age of increasing musical collaboration. From traditional bands such as London Grammar, where all three members are credited as writers, to the successful partnership between writer/producer Naughty Boy and vocalist Emeli Sandé, songwriters are working together more than ever before.
While this collaborative spirit is to be celebrated, it is not without its complications particularly when it comes to songwriting splits and resulting income. Fundamental questions arise: if you write the main musical riff and the rest of the band add simple accompanying parts do you all still take an equal split? If you write the lyrics, are you automatically entitled to 50 percent? Where does songwriting stop and production begin? How do co-writes work when you have a separate exclusive publishing deal from your co-writer? Importantly, how do you resolve disputes?
The Copyright, Designs and Patents Act
Technically, under the Copyright, Designs and Patents Act (CDPA), a song will usually comprise of two separate works – 1) the musical work and 2) the literary work (in respect of the lyrics). The author of a work is the first owner of any copyright in it (except in the case that it is made by an employee in the course of employment). A work is deemed to be jointly-authored where it is produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other(s).
By referring to the CDPA, ownership of works embodied in a song can be determined easily where, for example, a hip hop producer creates the music and an MC writes the lyrics. However, ownership may become less clear when elements of the song are created in rehearsal rooms or co-writing sessions, or when changes are made as the result of criticism or review.
Blurred lines over ownership
This lack of clarity is exacerbated by the increasingly blurred boundary between the roles of songwriters and producers. In the past, these roles were usually well-defined. For example, producer George Martin is regularly acknowledged as making a significant contribution to the Beatles’ songs, yet he is not credited as the author and has no ownership of them. These days, especially in production-led genres of music such as hip hop and dance, the roles are far less clear and it may be difficult to determine whether the programming of sounds or rhythms constitutes authorship and therefore ownership.
It would be logical, however, to assume that if you identified the authors and/or any joint authors of works in a song, you could determine the appropriate ownership splits. Unfortunately, it’s not that straightforward. This is because: 1) the musical and literary works do not necessarily each constitute an equal 50 percent share of the whole of the song; and 2) the contributions of joint authors may also be unequal. A further complication is the commercial pressure which may be operating in the background. A high-profile artist may, for example, insist on an ownership split on a song despite having no involvement in the writing process. Elvis Presley was well-known for this practice.
As a result, while the starting point in determining splits is usually to apportion each co-writer’s contribution (musical or lyrical) to the song as a whole, an agreement is usually reached following commercial negotiation. This means that well-known writers may insist on a larger split, especially if that writer increases the chances of the song being successful.
Agree your splits and avoid falling out
The solution is therefore to discuss splits and reach an agreement between all co-writers, ideally before the writing process begins and certainly before any money or other deals are on the table. Be warned: if you don’t do this, disputes will almost inevitably follow! If you cannot agree exact splits in advance then you should at least establish a mechanism for calculating and recording splits once the songs are finished.
You should also agree: who controls the use of the songs (for example, do all co-writers need to agree to the grant of a sync licence?); who will register the songs with PRS for Music; who will receive income from exploitation of the songs; and how liabilities will be dealt with (for example, a liability may arise for all co-writers if the contribution of one co-writer infringes the rights of a third party). It is also sensible to nip any ego conflicts in the bud by setting out an agreed form of writing credit to be included in CD booklets and digital metadata - remember that these may not be the same as the splits, especially in the case of ghost writing.
Consider publisher contracts
In addition, you must consider how co-writing arrangements might be affected by contracts with publishers. If any of the co-writers have signed an exclusive publishing contract, then it is likely that their ownership in the songs will be automatically transferred to their publisher. You should therefore check that any such contracts will not prevent or restrict you from using the co-written songs as intended.
Get your house in order. Early
All of this may seem unnecessarily complicated and it is therefore tempting to put-off discussing co-writing splits, particularly when the creative process is going well. However, you can be certain that any awkwardness in talking business at the outset will be amplified substantially if you delay and money comes into the equation. Legal costs will stack up in resolving any dispute and a window of opportunity for use of the songs could be missed.
You should therefore do all that you can to agree matters in advance, get your agreement down in writing and check how your agreement may be affected by any relevant publishing contracts. You simply cannot rely on the CDPA or “standard” arrangements to accurately reflect your own specific co-writing relationship. If you get your house in order in this way, you will minimise the risks of a dispute and be able to concentrate on enjoying the creative possibilities offered by collaboration.
Pete Bott, solicitor, Blacks Solicitors LLP.