What constitutes 'songwriting'? What rights do songwriters have? Can a co-writer record the song or sign a synchronization license without the consent of the other co-writers? How do co-writers 'split' songs? What are the benefits of signing a written co-writer agreement? Does the legal stuff pertain to me?
Whether you co-write with your co-writer(s) in your living room, spontaneously in the studio, during a song camp, or via Zoom, you need to consider all the 'legal stuff'.
This area of the law in Canada is often misunderstood and songwriter disputes are, in my experience, quite common. As such, I wanted to take the opportunity to break down some key legal points when it comes to co-writing songs.
What is a 'Work of Joint Authorship'?
Under the Canadian Copyright Act, a 'work of joint authorship' means a work (i.e. a song) "produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors." In other words, if you write a song with a co-author, unless you sign an agreement to the contrary, the co-writers will own the entire song jointly (for example: the lyrics and melody will not be distinct parts unless agreed otherwise).
A frequently used analogy is that co-authoring a song is like cracking an egg and watching the egg white (lyrics) and yoke (melody) mix in an irreversible way. For example, subject to an agreement to the contrary, the co-writers do not own the egg white and yoke separately – they each jointly own 50% of the entire pan of scrambled eggs.
The case law in Canada suggests that the shares of a co-written work/song are held by the co-writers as 'tenants in common.' This is a fancy way of saying that, if you co-write a song, provided you don't assign your interest in the song to a third party (such as a music publisher), your interest in the song will pass to your estate upon death. Remember, copyright in a song lasts for the life of the author plus 50 years. As such, you and the beneficiaries of your estate could enjoy songwriting royalties for many years.
What Constitutes Co-Writing?
A 'joint author' of a song needs to establish that they made some significant original expression to the song, keeping in mind that the contribution need not be equal to that of the other co-writer(s). The conventional Canadian legal test for joint authorship also requires that there must be "joint labour in carrying out a common design."
One court case involving a dispute over Sarah McLachlan songs held that, in addition to the above, each songwriter needs to intend the other co-author to be a joint author. However, not all Canadian courts have adopted the "common intention" test. The federal court of Canada rejected the common intention test that co-authors be joint authors (see Neugebauer v. Labieniec [2009 FC 666]). In that case, the court found that the Sarah McLachlan decision (Neudorf) followed American law, which imposes a requirement that collaborators also intend to regard each other as joint authors (this requirement is actually baked into American copyright legislation, but not into Canadian copyright legislation).
Therefore, any significant original expression made to a song, such as lyrics, melody, memorable guitar riffs, cord progression in the chorus, etc., could constitute songwriting and attract co-authorship status if such contributions to the song are deemed to be 'significant original expression' and are carried out in furtherance of a common design to create the work.
Whether each co-writer also needs to intend the other to be a co-writer is, in Canada, an open legal question. Every case will be decided based on its unique facts, however, it's fair to say that minor suggestions like, "hey you should put a capo on the first fret of the guitar", probably won't attract co-authorship status. Signing a co-writer agreement with your co-writer(s) is always recommended to clarify, among other things, co-authorship splits and avoid disagreements down the road as to what constitutes songwriting.
What Rights Do Co-Writers Have?
In Canada, the law suggests that composers of joint works cannot exercise their rights independently of each other. This is significant as it means one co-writer couldn't grant a sync license, commercially exploit the song on a recording, or approve any other kind of use of the song without the consent/approval of all co-writers. In the United States, however, the case law seems to suggest that a co-writer can grant a non-exclusive license for the use of the song by a third party without the consent of the remaining co-writers, so long as the co-writer exploiting the song 'accounts' (i.e. ensures they pay royalties/fees to) the other co-writer(s).
Because the law in Canada is not crystal clear on this issue at the time of writing this article, a co-writer agreement is recommended to confirm the rights of each party. For example, one co-writer may want the right to administer or sign licensing agreements on behalf of the other co-writers, which that co-writer normally could not do without an agreement among all co-writers.
How Do Co-Writers Split Songs?
There are many ways this can happen. To clarify, by 'split', I mean the co-writers' copyright ownership split of the song and their corresponding share of publishing revenue flowing from such ownership. Remember that copyright in the song is different than copyright in the sound recording. For example, if two songwriters co-write and agree that the 'split' will be '50/50', this means (or it should) that each co-author owns 50% of the copyright to the composition and they will each receive 50% of all publishing revenue flowing from the exploitation of that song (e.g. public performance royalties, mechanical royalties, synchronization fees, etc.). That is subject to either or both co-writers having a deal with a music publisher.
With respect to how to split songs among co-writers, there are no concrete rules. For example, a common approach in the industry is that lyricists are given 50% and creators of music/melody are given 50%, but this is not always the case and can be difficult to divide. For example, in a four-piece rock band scenario the band might decide that all four members split songs equally or might decide that the 'core' one or two bandmember songwriters split compositions/publishing among only those core members. In a scenario where a hip-hop producer is involved in producing a track, depending on the deal, they may take a 'publishing or co-writing share as producer, particularly if they created the 'beat'/underlying rhythm section of the song, which is often a substantial contribution to a hip-hop track.
The Co-Writer Agreement
The answers to questions like 'who owns what?' and 'who has the right to do what?' are not always clear unless a written agreement is signed among co-writers. A co-writer agreement might confirm things like:
- The composition ownership (and corresponding revenue split) among co-writers.
- Whether any one co-writer will have the administration right to sign licenses on behalf of the other co-writers. If not, and if there were multiple co-writers, a sync deal, would require the signature of all co-writers. This could be problematic if it takes time to obtain the signatures of the other co-writers, who either may not agree with the placement of the song or may unintentionally hold up the process and risk killing the deal.
- Whether all co-writers are entitled to perform and/or record the song, or whether that right will be reserved for a particular artist/co-writer.
- Whether one co-writer can use the name/likeness of other co-writers for promotional and marketing purposes.
- Whether one co-writer has the right to make alterations to the song, such as to the melody, lyrics, song structure, etc.
- Confirmation that all contributions made by co-writers are original and do not infringe upon the rights of any other party.
This is a non-exhaustive list of things you may want to confirm in a co-writer agreement. Because the law is not crystal clear in this area and given the possibility of future disputes if things are not clarified (particularly if big money is on the line), co-writer agreements are recommended to ensure everyone is on the same page and that lawyers don't make money from unnecessary co-writer disputes
Conclusion
Co-writing is an incredibly common part of the music industry. Whether you are a solo folk/pop artist, rock band, or hip-hop artist working with multiple producers, you will likely find yourself in a situation in which you are co-writing songs over your career. As such, make sure you know your rights and set yourself up for a successful (and hopefully lucrative) songwriting career.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.