Traditionally, the elements that constitute a “song” are the lyrics, the melody, and the underlying musical composition (i.e. chord progression, supporting melodic lines, etc.).  While it may seem easy to identify the parts of the song that are covered under copyright, there are actually a number of scenarios that can make it difficult to determine when to consider someone a co-writer.  Being part of a band, working with a producer, or having another artist record your song can all lead to confusing co-writing situations. 

There are varying schools of thought on co-writing.  Some experts say that changing a word or note here and there does not make a person a co-writer; whereas others say that any influence over the creative process, such as being present during the writing of the lyrics and/or melody is enough to make someone worthy of co-writer status.  According to entertainment attorney Adam Barnosky, there is no one simple answer.  “As a practical matter, it is improbable that there will ever be a bright line rule establishing the amount of notes, chords, or lyrics required to be a co-writer.”  Easy or not, since songwriting is a major revenue source for artists, it is important to be educated on this topic.

In the most basic definition, a song is made up of lyrics and melody with underlying musical composition, with accompanying musical parts being considered part of the arrangement.   Artists who use this as a golden rule can run into issues, though, because there are instances where an accompanying musical part can be considered an integral part of the song.  Barnosky explains, “Non-structural elements like bass progressions, guitar solos and keyboard riffs are not typically considered co-writing, but this depends highly on its importance to the song’s structure.  Here’s a basic example:  If you write a twelve-bar blues progression with lyrics and your bassist mimics your chords or even creates an interesting progression underneath, he/she is likely not a co-writer.  However, if your bassist comes to the group with a line that becomes the backbone of the song (think Queen’s “Another One Bites The Dust”), your bass player has earned co-writer status.  The same example could be applied to guitar riffs and drum beats. ”

Among bands, this can be a touchy subject.  Often there are one or two band members who do most of the songwriting, and in cases where the band gets big, those members become a lot richer than the others.  This can cause problems within the group, especially as success rises.  Some bands choose to avoid this issue entirely by sharing all songwriting credits (bands such as Coldplay and R.E.M. are known for this).  Other bands choose to do a publishing share, in which songwriting members share a percentage of their publishing royalties with the band (usually outlined and agreed upon in an intra-band agreement).

If you do not have a blanket songwriting agreement within your band, then it is important to be fair about songwriting credit.  In a famous case involving British rock band Procol Harum, the band’s organ player sued the band’s two credited songwriters, claiming he deserved co-writing status for the band’s 1967 hit “A Whiter Shade of Pale,” for which he contributed the organ part.  In this case, a British court ruled that he was due 40% of the songwriting credit, although an appeals judge later decided that he was not due royalties due to his failure to seek legal action for over 38 years.  The key message to learn from this case is that properly assigning songwriting credit is important, and it should be addressed as early as possible.  Barnosky explains, “It’s not too difficult to understand the court’s reasoning in ‘A Whiter Shade of Pale’ – just listen to the track.  The 8-bar organ track introduction repeats in variations throughout the song (more pronounced than any underlying chords) and is, essentially, the songs instrumental hook.  Songwriting credit was due because the organ part is essential to the song, rises above a standard non-structural instrumental, and its absence would significantly alter the composition.”  Even if 90% of your band’s songs are written by the same one or two members, there may be instances where other band members deserve songwriting credit, and it should be something that every member of the band is aware of.  “The ruling should be a wakeup call for bands to not sit idly by regarding the business side of the industry,” says Barnosky.

It is also important to note that since accompanying musical parts can sometimes create a co-writer status, artists should take steps to protect themselves when working with studio musicians.  Ronald Bienstock, Intellectual Property and Entertainment Attorney at Bienstock & Michael, P.C., explains, “In the past, when music was recorded primarily by major labels using union studios, this was covered under union agreements.  The dissipation of the majors means that anybody can have a studio.  It is important that every studio have a general work-for-hire agreement on file.”  Under a work-for-hire agreement, everything composed during the session becomes your intellectual property.  With the rise in independent and home studios today, it is important that artists be aware of this, and have the appropriate paperwork in place.

Next month, we conclude this topic by outlining some of the basic legal steps you and your fellow songwriters can take to protect your work, including how to draft a basic split sheet.

Pamela Ricci is an artist manager and consumer marketing manager in the Boston area.

Special Thanks:

Ron Bienstock is a practicing attorney specializing in intellectual property and entertainment law.  He works with many high-profile clients at his New York and New Jersey practices.

Adam Barnosky is a practicing attorney and writer specializing in entertainment law and business development. He has worked with musicians, actors, and playwrights in Boston and New York City.