“Nobody writes alone in Nashville.” That might be a slight overstatement, but most musical compositions (or "songs") -- regardless of where written -- are the product of more than one songwriter. Unfortunately, even many career songwriters do not fully understand the legal implications of co-writing.
When two or more writers (or “authors” in copyright parlance) intentionally join forces to create a new song (e.g., during a writing session) the scenario is pretty straightforward. 17 U.S.C. § 201(a) provides that the resulting musical composition is a joint work if, at the time of creation, the authors intend for their contributions to be merged into a single work. Absent a written agreement (e.g., a “split letter”) to the contrary, the authors own the composition collectively as tenants-in-common, with each owning an equal and undivided interest in the entire song. In short, an “undivided interest” means that no author owns exactly what he contributed, but as a joint work, each author owns an equal share of the entire song, unless otherwise agreed in writing.
Each author (or the author’s assignee -- typically a music publisher) may enter into non-exclusive licenses regarding the entire composition, subject to the continuing obligation to account to the other owners for their share of revenue from the commercial exploitation (use) of the work. Labels should obtain a mechanical license from each owner if it is a first use of the composition; however, as a practical matter, most record labels will record the song, and once the copyright owner accepts royalties, it may constitute an implied license. Few people object to having a song cut and being paid.
Determining if a song is a joint work can be trickier if it was created from contributions by authors at different times, instead of during a co-writing session. For instance, if a lyricist writes lyrics and a composer sets those lyrics to music, without the lyricist’s knowledge or intent to create a joint work, the result is not likely a joint work, but rather a derivative work, which raises copyright issues beyond the scope of this article. Most courts require that each author contribute at least enough creative expression to make the contribution protectable under copyright (i.e., not merely an idea or title), and where the contributions are made at different times, there must be an agreement in writing demonstrating the parties’ intent that the contributions were intended to be part of a joint work. Also, although each joint author must contribute some creative element to the final product, each author need not contribute the same amount.
Most professional songwriters adhere to the standard practice of scheduling dedicated co-writing appointments, which limits potential ambiguity over copyright ownership. When ownership of a particular work is questionable because of time or geographic distance between the authors’ contributions, it is best to clarify each author’s intent early and in writing. It's also a good idea not to wait until a song is a hit to work out an agreement, as writers who were friends when writing may become quite disagreeable when money is at stake.
I love bands. I’ve been in bands virtually my entire musical life and I can tell you firsthand, when a band is comprised of individuals who share mutual respect and a passion for their music, the experience can be great. However, almost invariably, when things go bad in a band, they go bad quickly and irreparably. Although nothing can guarantee that a band's members will always get along and keep making beautiful music together (sorry, I couldn’t resist), there are steps that bands can take to foster growth and facilitate a prompt resolution when things do go bad.
One of the most common challenges that new bands encounter is that they typically are so focused on their music that they never get around to discussing how they are to operate. Emerging bands are focused initially on trying to put together their repertoire, and then they start performing and recording and just never seem to get around to formally memorializing their inner workings. Unfortunately, this often leads to confusion or, even worse, mistaken beliefs among band members. Indeed, very successful bands have operated for years with no formal agreement on such critical issues as division of income and ownership of band assets. This is a recipe for disaster that all-too-often catches up with band members eventually.
If a band fails to formally organize as a business entity, it operates as a partnership by default. Although a partnership is a legitimate business structure, it might not be the best form for a particular band. Indeed, many bands choose to formally organize as corporations or limited liability companies (a/k/a "LLCs"). The choice of business structure should always be considered carefully and with the advice of legal counsel. Because of the possibility of conflicts when representing bands, lawyers should advise each band member of his or her right to retain independent counsel. Also, because the various business forms carry different tax consequences, band members should also involve their individual accountants or tax advisers in the decision-making process.
Regardless of the business structure that a band ultimately adopts, its members should discuss among themselves how the band will operate. This discussion should take place very early in a band’s formation and during an official band meeting, not during a band rehearsal. Rehearsals are for rehearsing and band meetings are for conducting band business. I am convinced that if bands would devote even one-tenth of the time they spend in rehearsals for band meetings, many more bands would survive rather than deteriorate because of internal conflicts.
After reaching consensus among members (assuming that all members of the band are to “own” the band), the members should memorialize their agreement in a written and properly executed document. If the band is to operate as a partnership, this will take the form of a “band partnership agreement.” If the band is to operate as a corporation, this information will be contained in a “shareholders’ (or stockholders’) agreement” and if the band is to operate as a limited liability company, the information will be put into an “operating agreement.”
The following is a non-exhaustive list of some of the issues to discuss and include in the written agreement: division of ownership and voting rights; division of income; ownership of master sound recordings; writing credits and copyright ownership for musical compositions written by the band members (if applicable); ownership of trademarks and service marks, including the band name and logo and brands developed for ancillary uses, such as band merchandise; and issues related to departing band members, including the continuation of the band following such a departure, the departing member’s right to use his or her name in association with the band name after departure, and continued payments to the departing member from certain income streams.
As suggested above, in many instances one individual will actually own a band -- directly, or through a separate business entity -- and will hire band members through separate employment or subcontractor agreements. This, of course, raises many other issues that should be discussed with counsel.
The bottom line is that band members need to give their band’s business the consideration and time that it requires. Meet, discuss, agree, memorialize, then focus on making great music with a feeling that all is well with the world -- at least until the drummer and the lead singer’s girlfriend decide to run off together . . . wait, that’s a different story for a different article.
Welcome to The Levine Entertainment Law & Business Monitor. When I set out to create this blog, I asked myself a critical question -- "How many words can I fit in the name without losing readers' attention before they get to my first post?" After weeks of intense research, I settled on six. And after significant internal conflict over whether ampersands really count, I decided to add "the" to the beginning -- an addition that I'm sure you'll agree communicates authoritativeness and class, with just enough pomposity to remind you that it's a blog written by a lawyer.
But seriously, my primary goal was to create a useful source for information about the legal and business aspects of entertainment, delivered in a casual, easily understandable, and frequently irreverent style. I hope you will subscribe and share your suggestions for topics. Thanks for visiting.
P.S., My research also suggested that including cat photos on my website would boost its search engine rankings, so please enjoy this picture of my assistant, Buddy. What he lacks in motivation, he more than makes up for in loyalty.
L. Kevin Levine is the founder of L. Kevin Levine, PLLC (go figure), a boutique entertainment, copyright, trademark, and business law firm in Nashville, Tennessee. A lifelong musician who grew up in his family's music store, it was inevitable that Kevin would build his legal career in entertainment and business.