Who Wrote That Song?

By Gary M. Schuster, Esq.
ART TIMES September 2006

Collaboration, which is a fact of life in the music business, may have unintended consequences for songwriters. A songwriter commonly writes lyrics, creates a melody and adds a few underlying chords.  The songwriter then takes this basic structure into the recording studio where, frequently, many people contribute to create a richer, more interesting and (it is hoped) commercially viable recording. A bass player may create a bass line.  A drummer may modify the rhythm. The singer may make minor modifications to the lyrics.  The producer may add background singers, horns and strings, all of whose music must be composed and arranged.  The final product is truly a collaborative work.  The question then arises, who wrote that song?  Are all those collaborators also songwriters, entitled to register the song for copyright protection, issue licenses to use the song, and receive songwriter royalties? The quick answer is No. The explanation is a bit lengthy.

There has long been a distinction between works created by a single author and works created by more than one author, the latter referred to as "joint works". Under the law prior to 1978, there was some confusion as to when a joint work was created. The 1976 Copyright Act, which took effect on January 1, 1978, clarified the law. A joint work is now defined as one prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.¹   Therefore, an essential element is the intention of the songwriter.  If the writer does not intend that the bass player, the drummer, the singer and the rest contribute to the song, then the song is not a joint work. Those other people are not songwriters or entitled to songwriting credit.  This is true even if the bass player, drummer, etc., do intend to contribute a joint work - the required intent must exist among all parties.

Even if the unanimous intent to create a joint work is lacking, the inquiry does not end there, because of the remaining issue of copyright infringement.  If a person, without permission, copies the protected work of another, then the copier is a copyright infringer. If our songwriter in the recording studio, without permission², incorporates into her song (i.e., copies) the work of another person (i.e., the bass player, drummer or singer), then the songwriter may be a copyright infringer.  What determines if there is copyright infringement?  The answer rests on whether the contribution would be capable of being registered for copyright when standing entirely on its own. Only an original “musical work” or “literary work” can be registered for copyright. Some creations of musicians will not meet the test of being such a “musical work” or “literary work”.

For example, imagine the singer changes a few words of the lyrics, representing perhaps just 5% of the entire lyric. Those few words, taken entirely on their own, would not be capable of being registered for copyright. They do not amount to a “literary work”. So the singer cannot claim to be a joint author of the song.

Suppose the singer contributed an entire sentence. It is generally accepted that a sentence is too short to be a “literary work” entitled to be registered for copyright. (But what if the song consisted of a single sentence, repeated several times? Or, what if the single sentence was the song’s crucial “hook”? Arguably, these would be more entitled to be considered literary or musical work.)

Suppose the singer contributed an entire verse - 4 lines that rhyme. Now you’re getting somewhere. A 4-line verse would likely be recognized as a real, if short, poem, and a genuine “literary work” entitled to be registered for copyright. Moreover, since most songs have just 2 to 4 verses, a single verse would represent a substantial portion of the entire song (i.e., 30% as contrasted with 5% in the example above. ).

A drummer who changed the rhythm of the song would probably not create some entirely original rhythm that has never been heard before. It would probably be a rhythm heard in hundreds of other songs. Since the rhythm would likely not be new and original to the drummer, it would not be capable of being registered for copyright and the drummer could not claim to be a joint author.  Even if the rhythm was something new, rhythm alone lacks the other traditional hallmarks of musical works, i.e., melody, harmony and frequently, words. Registering a bare rhythm for copyright protection would be difficult.³

As for the bass player, bass lines are commonly the very simple repetition of just a few notes, hardly worthy of being called a melody. On the other hand, some bass virtuosos like Charles Mingus or Jack Bruce created very original and complex melodies, clearly entitled to being registered for copyright. Whether a particular bass player makes a contribution to a particular song that could be entitled to copyright protection must be determined on a case-by-case basis.

As for the background singers, horn section and string section, similar analysis applies. Some background arrangements are sparse, plain and simple. Others are complex, original and inventive.⁴ Again, it is a case-by-case analysis.

As can be seen, drawing a bright line between the contributions of collaborators that are capable of being registered for copyright, and those that are not, can be tricky. For that reason, the best business practice is to eliminate all doubt by the use of contracts.

Songwriters who collaborate on songwriting can negotiate and sign collaboration agreements. Such agreements allocate percentages of ownership and royalties to each writer, and address such matters as who has the right to issue licenses for the use of the song.

In the recording studio, a songwriter should have all the singers and musicians (and record producer, if any) sign releases that assign their creative contributions to the songwriter. These releases usually provide that the creative contributions are "work made for hire", a phrase from the Copyright Act meaning that the songwriter will be deemed to be the legal author and owner of the musicians’ contributions.

By knowing the rules of the game and using the proper written agreements, songwriters can maintain maximum ownership of their songs for themselves, their children and grandchildren.⁵

1.  Consider Rodgers and Hammerstein, each toiling alone in their respective posh Upper West Side apartments, one working on lyrics, the other on music. When Hammerstein finished his lyrics, he called a messenger to bring it to Rodgers, and vice versa. Although they spent much of their working time alone, it was always their intention that their independently created works be “merged into inseparable or interdependent parts of a unitary whole”. Contrast that with a situation where a composer takes a Shakespearean sonnet or other pre-existing poem and writes music to it, creating a song. Since the poet did not intend to create a song, the song is not a joint work.

2.   A rule of copyright, essential to this inquiry, is that all agreements pertaining to copyright must be written and signed. There is simply no such thing as a “verbal agreement” pertaining to copyright. If our songwriter left the recording studio with the “verbal permission” of the bass player to incorporate his contribution into her song, then the songwriter really left with nothing. The bass player did not give legally enforceable consent, and the songwriter could be infringing. As a result, the bass player could prevent the release of the recording or demand an exorbitant price for his written and signed permission, possibly compelling the songwriter to re-record the song or (in this digital age) delete and replace the bass player’s track.

3.  This has not prevented the growth of a vibrant business, in the world of hip-hop, of creating, selling and registering for copyright “beats”, which are short rhythm tracks that underlie songs. While the practice is widespread, and the Copyright Office apparently accepts registrations of “beats”, it remains an open question whether, upon a direct legal challenge, “beats” will be held to be “musical works” entitled to being registered for copyright. On the other hand, this might be another area in which the law needs to catch up with the progress of culture.

4.   Recall the arrangements of Nelson Riddle for Frank Sinatra, Peggy Lee, Dean Martin and others. His compositions never made him the equal of, or a joint author with, the great American songwriters like the Gershwins, Cole Porter, Sammy Cahn and Jule Styne, who kept songwriting credit to themselves.

5.  The duration of copyright is now “Life + 70", expiring seventy years after the death of the author (or last surviving author of a joint work). This means royalties from a song will be paid to the songwriter for her lifetime and then to her heirs for 70 more years after her death. That could represent a significant bequest to the songwriter’s heirs. Songwriting credit is well worth protecting.

(Gary M. Schuster, Esq., a frequent contributor to our ‘Speak Out’ section, is with the offices of Jacobowitz & Gubits, LLP, Walden, New York gms@jacobowitz.com)

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