Co-Songwriters: Basic Music Law

Co-Songwriters: Basic Music Law

by Susan Basko, Esq.

"Beautiful - The Carole King Musical" is a wonderful stage play about Carole King, one of most successful and beloved songwriters in the United States.  The show traces her songwriting partnership with Gerry Goffin.  In their partnership, Gerry Goffin often wrote the lyrics, while Carole King wrote the melody, composing on piano.

Songs are a very important factor in U.S. musical history and form the basis of much of music law and music copyright law.  Music Copyright law in the U.S. is largely based on the concept of songs.

What is a song?  A song is a short piece of music, with lyrics and melody.  Lyrics (the words) and melody (the tune) are the two components of a song that are recognized in U.S. Copyright law.  Music and lyrics are what traditional American songwriting are all about.

Today, there is a lot of nontraditional songwriting, largely due to the use of electronics and computer music editing being used to create "songs."  Many rap or hip hop songs are created by making a beat, which is a short piece of sound, which may then be repeated over and over, with words spoken or sung to it.  Often, the beat is created by a beatmaker, who sells it or licenses it to a producer or music artist.  Many times, such songs are created without anyone playing any musical instrument, and there might not be a discernible melody, as such.  Often times, such a "song" is a product of creation on music editing equipment, rather than being lyrics that are written and a melody that is composed, which is then recorded.

Music law and music copyright law were created to meet the needs of traditional songwriting, in an era before electronic music creation existed.  This blog post is about how music law and business treat the traditional song.

As stated, U.S. copyright law considers a song to be two elements: lyrics and a melody.  What does copyright law do with pieces of music that are drums or other sounds, with words spoken over them?  Copyright law gets confused by that.

Traditional songwriting in the U.S. has often involved co-songwriters.  Traditionally, this was two people -- one who was good at writing lyrics, and the other who was talented at composing, usually on a piano or sometimes on a guitar.  It has been traditional practice in the U.S. songwriting industry that co-songwriters are each given an equal share of Copyright ownership over a song.  This is particularly true if they are a songwriting team.

Another basic element of music Copyright law is that a recorded work of music has 2 Copyrights: one is for the songwriting (lyrics and melody) and the other is for the Sound Recording.  Traditionally, the songwriting copyright is owned by the songwriters and assigned to a publishing company for a period of time.  Traditionally, the sound recording is owned by a record label.  One song might be recorded over and over by many different recording artists, so the Owner of the Copyright on the Sound Recording will be different on each one, while the owners of the Copyright on the Songwriting will remain the same.

U.S. Copyright law gives the songwriters the right of first recording.  This means that the songwriters get to choose who will be allowed to first record the song.  This is a factor featured in "Beautiful: The Carole King Musical." In the show, Don Kirschner, the music publisher and producer, buys or licenses the rights to songs written by Carole King and Gerry Goffin and then places those songs for first recording with different music artists that he thinks can turn them into hit songs.

One special nugget in U.S. Music Copyright law is called Compulsory Licensing.  This law says that  when any song subject to U.S. Copyright law is first recorded and released, then afterwards, anyone else may make a recording of that song.  It is called Compulsory Licensing because the songwriter or publisher must allow anyone to record a cover version of the song, if that person sends them notice and pays the royalties that are due.  One need not wait for permission or approval from the songwriter or publisher, and none may be sent. After notice is given and the royalties paid, the person can record their own version of the song, as long as they do not substantially change the lyrics or melody.  This is called a "cover song" or "cover version."  The person wishing to record a cover version can send this notice on their own -- if they can locate the publishers and find the required wording, which is contained in the U.S. Copyright law  -- or they can pay a fee to a music lawyer or music cover song licensing company.  It can be very difficult to accurately locate all the publishers that might share control on one song, so it can be well worth it to pay for a licensing service.

The statutory royalties are, at this time, about 9.1 cents per copy to be made of a song under 5 minutes.  Royalties are higher on a song 5 minutes or over, which is why most American popular songs are under 5 minutes. The law, the royalties, and the industry are geared toward songs being under 5 minutes. That's something to keep in mind if you are writing songs and want to make your own path easier.

The licensing required to make a cover recording of a song is called Mechanical Licensing.  Mechanical licensing is obtained directly by giving notice to the songwriters' publishers, or by paying a licensing company to do that for you.  PROs (performing rights organizations), such as ASCAP, BMI, and SESAC, are not involved in mechanical licensing.

Record companies that will be making and selling many copies of a record will negotiate with the publishing company to give them a lower rate per copy.  Most publishing companies take 50% of the songwriting royalty -- which is why some songwriters today run their own publishing company.  Let's say you buy a digital copy of a cover version of a song.  If full royalties have been paid, the songwriter who has signed to a publishing company will get half of 9.1 cents of your purchase -- or about 4 and a half cents.  If the song has been co-written by two people, they each get 2 and a quarter cents.  Thus, you can see that it is very hard to make a living writing songs.  "Beautiful: The Carole King Musical" accurately portrays this, as Carole and Gerry have hit songs playing on the radio, but still live with Carole's mother in her New York apartment and cannot afford to get their own place.  Later in the play, after they have many hit songs, they are finally able to get their own place in the suburbs of New Jersey.

The Compulsory Licensing law came about to benefit songwriters as well as the public.  Songwriters wanted their songs to be recorded by multiple artists.  Sometimes publishers were putting a stranglehold on recordings by holding the songs ransom for the highest bid.  Having an equal royalty amount for each copy leveled the playing field while guaranteeing the songwriters some income if their songs were recorded.  This system allowed the traditional songwriting practice to flourish.  If a song was attractive, with good lyrics and a catchy melody, many music acts would want to record it.  Until the rock band era of the late 1960s, when a good song was written, it would be recorded by many popular artists of that time. When the rock band era came in, the idea was often that a song "belonged" to a certain group and could not plausibly be replicated by another group.  Legally, anyone could make a cover version of, for example, a Led Zeppelin song, but this was rarely done.

Compulsory licensing requires the same amount of royalty per copy, regardless of who the songwriter is.  You can record a song by the famous Beatles writing team of John Lennon and Paul McCartney for the same price as you can make a cover version of an obscure song written by some schmoe who plays only at the local open mic night.

Sometimes in a rock band, there is an egalitarian approach to songwriting, where all members of a band are given Copyright on the songwriting.  This would be the subject of a band contract where this is spelled out.  If they are all actually participating in creating the song, this might be fair.  It can certainly be a headache for anyone trying to give notice to make a cover version, since each songwriter might be represented by one or more publishers!  If there are 4 or 5 songwriters to the song, there can be many publishers to identify and track down.  To make matters more complicated, may songwriters change publishers numerous times through their career, and they may have different publishers handling the song in different parts of the world.

Many of the most famous parts of songs are actually created by studio musicians in the process of recording a song.  Usually, they do not share songwriting credit or copyright.  Louie Shelton is a guitarist who has created many famous riffs on rock songs.  Carol Kaye is a studio bassist who created many of the most famous bass riffs in rock music.  Studio musicians are usually paid very well, but are rarely given songwriting credit or copyright, unless that was something they had negotiated for in advance.  Studio musician work is generally Work for Hire -- meaning, they are paid, they perform, and the ownership of the recording belongs to the record label that hired them for the session.  This fits with the way songwriting is viewed in the traditional American sense -- that a song is the lyrics and melody, not the clever bass riff.

A song that is created using parts of an old song is called a Derivative Work.  To make a derivative work, you have to get permission for the Copyright holders on the original work.  I covered this topic in this blog post on Derivative Works.  The fun part about derivative works, if you can get permission to create one, is that you can share songwriting credit with the original songwriter.

Another means to being a sort of Co-writer is to create an arrangement of a song.  If the song is still under copyright, that would be a derivative work.  If the song has passed into the public domain, meaning the song is over 80 years old, then you can create your own arrangement of it without getting permission.  This is pretty special because you can register Copyright with yourself as Arranger on a piece of music by Johann Sebastian Bach  -- or any other musical composer who wrote long ago.  There are reputable websites online that list songs that are in the public domain -- older classical music and many traditional folk songs.  Basically, any song written before 1938 will now be in the public domain -- but do your research on each song before assuming it is in the public domain.

Also - be aware that a more recent arrangement of a song in the public domain will not  itself be in the public domain.  You may be familiar with an arrangement of an old song, but the arrangement may have been created much more recently by someone who still holds copyright on that arrangement.  For example, the traditional folk song "Greensleeves" is in the public domain. But, there have been many arrangements of it.  The version you know and love may have been created by someone who registered the Copyright on their arrangement.  While you would not need a mechanical license to record Greensleeves, you might need one to record a particular arrangement of it.  The same is true of such classical favorites as Pachelbel's Canon.

A few years ago, CD Baby put together a list of Christmas Carols that are in the public domain and a list of Carols that are not in the public domain.  To make a cover version of the songs that are on the "not in the public domain" list, you need to get mechanical licensing, which is done by giving notice and paying royalties -- or paying a licensing service to do this for you.  These lists can be surprising, since songs we might think of as "belonging to everyone" actually are owned by the people who wrote them.

If people are co-songwriters, each one has the right to be listed on the Copyright registration.  If one of them registers the song, but fails to list the other songwriters, those who are left out can petition the Copyright Office to amend the registration to include them.

The best way to start off a Co-Songwriting partnership is with a CONTRACT that is in writing and signed by both people.  The contract should spell out that each is an equal partner, that each will equally own the Copyright, that each will be listed on the Copyright registration.  The contract should also state who will have the right to administer the song -- meaning, who will have the right to assign the song to a publisher or licensing company or to a record label or music artist.  There are many other simple provisions for such a contract, particularly, what happens if and when the relationship goes sour or dies out or one of the parties wants to write on their own or with a different partner.   Co-songwriting is much like a love relationship, and it often is tied in with one, too.  Spelling it all out in a contract in advance can protect everyone's interests down the line.