The Real World - Exploring Issues Raised by Readers
By Guy Betar - 08/29/2006 - 09:26 PM EDT
The Real World – Part 1
No doubt all my avid readers have been waiting with baited breath for my next missive! My apologies to all my loyal readers for the delay between articles – I would be happy to buy both of you a cup of coffee some time as recompense.
Let’s get back on track here. The real goal of this column is to provide some useful guidelines for composers and musicians to help you protect your valuable creative output, and get the most from the business side of your industry. Readers will already know that one of my favorite themes is the importance of understanding the basics of business and the law and how they affect what you do.
Some while back I received emails from two readers (hence knowing I have at least two readers of my column!!) who raised some very interesting and challenging questions to do with composing, recording and granting rights to others in relation to the compositions and recordings. I thought it would be valuable to consider the situations they were involved in, and review some of the questions and issues that were raised. With their kind permission I will give a brief summary of what happened, then go through the issues that they raised with me and also some additional points that are important to understand. Some of the important issues I will cover are co-authorship and ownership, licensing, and different types of copyright works.
Gary is a composer and performer, and wrote a song (lyrics and music) as a tribute to the relief workers who were involved in the aftermath of hurricane Katrina. A large Nashville church heard the song and asked if they could include the song on a DVD they were compiling to encourage help for the area. The DVD was to be mailed initially to 400 churches. Prior to making a recording of the song for the church, Gary played it for a singer songwriter friend who suggested a bridge and accompanying lyrics, the friend actually composing the melody and lyric for the bridge. The singer songwriter friend sang the now expanded song in the recording that was made for the church. Gary asked me about the copyright position in relation to the song, not least to be sure his friend was recognized as contributing to the song. He also asked about publishing. As the recording was for a charitable purpose, he said he was not so concerned about issues of money (But more on this particular aspect later).
In attempting to answer Gary’s direct questions, I actually had some difficulty trying to keep my answer succinct and to the point, as this fact scenario raised a huge number of important issues. What I will do in this and the following article (s), is work through these issues in as logical a way as possible, to highlight the more important ones and provide what I hope will be some useful guidance.
The first consideration is an extremely important one. What is the ownership situation of the song? In trying to answer this question, I realized there was an even more fundamental question that could not be ignored – which song were we concerned about? There were in fact two songs or pieces of copyright. The first was the original song that Gary wrote by himself, that did not have the bridge (either lyrically or musically). A second song, notably derived from the first, was co-written by Greg and his singer songwriter friend. The copyright in the first song is clearly owned by Greg. The copyright in the second song is clearly “co-owned” by Greg and his friend. The reason I have put the word “co-owned” in quotes is to emphasize that the issue of co-ownership can be difficult to sort out where there is no written agreement between co-authors identifying what their relative shares in the copyright are (Yes, you just knew I would manage to find a way to emphasize the importance of getting things in writing!!).
Copyright is a rather unusual pie – legally it can be divided up into all sorts of slices that vary not just in size but in type as well. You can cut it up into pieces that relate to markets (e.g. film, cd), or geographically (e.g. USA only), or you can divide it into parcels of ownership based on percentage. Where you have two or more authors/composers of a song, then in the absence of an agreement between the co-authors (preferably written), the law will assume it is owned in equal shares unless it is proven otherwise. As you can appreciate, the best result is for the co-authors to agree between themselves about their relative shares. Peoples’ sense of the magnitude and value of their contribution can change surprisingly when money is involved. If at all possible, co-authors should agree from the outset (i.e. when a song or piece of music has been written) what their relative shares are. There is no magic formula for this – it is totally up to the authors as to what they think is fair. You can decide on proportionate shares that are different and specific to each composition, or you can do a Lennon/Macartney and have a general agreement that covers all co-authored compositions. Even having reached such an agreement, it can always be varied at a later stage by the co-authors, either on a one off basis, or generally.
In this and so many other issues always remember the golden rule – PUT IT IN WRITING!
If we turn back to Gary’s situation, what are the key points to understand? Although it might have some relevance, we can put aside the fact there are actually two songs, one derived from the other. There are some technical legal issues to do with implied licenses, which I am happy to provide more information on if any reader is interested. For the moment, let’s concentrate on the second song. Clearly Gary and his friend are co-authors. For co-authoring to exist, each person must have contributed something by way of creative endeavor and output to the final version of the song. This is a “qualitative” issue not a “quantatative” one – in non legalese that means the literal size of the contribution is not as important as the “value” of it in terms of the specific composition. To give some context to this, if all a person does is suggest adding a single word, or changing a word or two, it is unlikely (though not out of the question) that they would not be deemed to have contributed to the song. At a very general level, it would seem Gary would be reasonably entitled to something more than half of the copyright in the composition, as his friend wrote one out of possibly three, four or more components of the song (e.g. introduction, verse 1, chorus, verse 2, bridge, end). On another view, the bridge might just have transformed the song from a pretty good one to a sensational one. It is therefore up to Gary and his co-author to reach a reasonable agreement that they are both comfortable with. Of course, they will put their agreement down IN WRITING!
As part of this issue, Gary raised with me the question of recognizing jointly owned copyright works with the US Copyright Office. He was concerned he might have filled out either the wrong form or filled it out incorrectly. The US Copyright Office has a very extensive website, and has all the forms available online as well as instructions. http://www.copyright.gov/forms/ . For sound recordings, and their underlying copyrights in the literary part, there is a specific form that provides for either a single author or multiple authors (Form SR). There is also a form to make corrections or changes (Form CA).
Some readers might be asking why all the fuss about copyright shares? In Gary’s situation the recording was made for a charity, and the proceeds will go to that end, so in one sense he is not concerned about any monetary benefit and how it is shared. Yes, that is indeed true. However, what happens if the DVD becomes more popular than expected? What if the church wants to distribute it nationally to 1000s of churches because of the demand? What if a major label wants to pick it up? These and a lot of other questions depend on the answer to one very specific and important question – What are the terms of the licence that exists between Gary and his co-author, and the church? Whether they knew it or not, by allowing the church to incorporate the recording on a dvd and distribute it, they have granted a “license” to the church. Now we have launched into the real business end of the music industry.
The problem here is, given the questions I have posed above and the likely difficulty in giving any precise answers to them, not least because no-one considered them, there will be difficulty in working out the nature and limits of the license. There is also an additional problem in this particular scenario. Who has the license been granted to? A “church” in a particular geographic location is not likely to be a legal entity. The law varies from country to country as to how it recognizes religious bodies, and they can be recognized differently for different purposes (e.g. tax, entering contracts).
In the next article I will go over issues to do with licensing and also touch on different types of copyright works, who owns them, and how they can be dealt with. In the mean time please feel free to email me any questions you have about this or any past article.
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