“Help! my music was used in a production without my permission and I haven’t been paid for it!”
“I hired a producer to complete my album and now they won’t give me the instrumentals because they claim to own them.”
“My content was tagged as copyright infringement and taken down from a platform because my ownership is being disputed.”
Sound familiar? These stories are from actual emails I’ve received while working in music licensing over the last decade and while serving as President of Women in Music. These situations are all too common and were the inspiration behind Cosynd, a company I co-founded that helps creators protect their content and rights.
As we began to develop Cosynd, we conducted a small market study to uncover how people really felt about the process of copyright ownership and rights management. Three words kept popping up: uncomfortable, slow, and useful.
We can all agree that sorting out ownership is important, but for nearly half of the respondents in our study, the process felt fraught with awkward conversations or awkward silence, which leads to the unexpected costs of fixing mistakes.
It’s better to have an awkward conversation now than to have an expensive one later.
(Heads up, there’s some very not fun, but very important information in this section).
When collaborators combine their efforts into something that is meant to be one piece of content, that union is called a “joint work.” Examples of joint works can include:
- Songwriters and composers combining their work to create a musical composition.
- Musicians, engineers, producers, and artists combining their efforts to create a sound recording.
- Two YouTube creators combining their work to create one video.
- Two writers combining their work to create a script.
Most collaborators aren’t aware of the legal nuances of joint works and that can lead to a number of irritating problems. Under U.S. Copyright Law, the creators of a joint work by default have an equal claim of ownership, rights, and revenue unless there is an agreement stating otherwise.
Let’s use a practical example of two songwriters where Songwriter A has written far more of a song than Songwriter B. Without a proper ownership agreement in place, Songwriter B could claim ownership of 50% of the copyright of that song, 50% of the publishing revenue, and could license the entire song non-exclusively to others without Songwriter A’s permission.
Revenue is usually where things get messy. It’s harder and more expensive to have a conversation with your collaborators about ownership after your content is already generating revenue, since people are less likely to agree to change (particularly, reduce) their share at that point. You may need to hire an attorney to sort out any disputes.
A split sheet is an easy initial step that you can take to establish ownership.
Some creators think that documenting ownership is a complex process. However, the first step is as simple as a split sheet, a one-page agreement that includes (at the very least) the title of the copyright, the ownership breakdown, the names, writer/publisher information, and signatures of all of your collaborators.
Split sheets should be completed immediately. Waiting after a session can mean the difference between smooth sailing and complex, costly negotiations, so power through what may feel like an awkward conversation early on. Doing this now also keeps business and personal relationships intact, which is a necessity in this collaboration-centered creative era.
Ownership aside, there are other critical details to discuss.
A more comprehensive ownership agreement can cover additional issues such as:
- How/when will revenue be paid to your collaborators?
- How will your collaborators use your name, image and brand? Do your collaborators need permission to do so?
- How will disputes be handled? Will you submit disagreements through mediation, arbitration, or court?
- Will you and your collaborators indemnify each other? What will a collaborator at fault be responsible for? How will the others be protected?
The most crucial mistake I’ve seen collaborators make is to not decide who can license the content they have created together. When this isn’t decided early on, your content can be used in ways that you wouldn’t normally approve of, licensed for disappointing fees, or worse – without your knowledge and without ever seeing any payment at all.
Work for hire and producer agreements should be used whenever you hire others.
If you are working with a freelancer (musician, engineer, etc.) to create your content, simply providing payment may not be enough to prevent them from claiming ownership. You can use a work for hire agreement with these individuals, which clearly outlines the scope of their contribution to your content, how/when payments will be made, and waives their claim of ownership over your copyright.
If you have hired a producer, a producer agreement may be better suited for your needs than a work for hire agreement. A producer agreement will typically outline how and when a producer will be paid (advances, royalties, flat fees etc.), how the producer will be credited (if at all), how copyright ownership will be addressed, and other critical details. A producer agreement will clearly state if a producer will retain ownership of the music they created and if they will be permitted to license or re-use that music with others.
There are other steps you can take to protect your content.
Register your works with the U.S. Copyright Office: Mailing your content to yourself or publishing it on a content platform (a practice known as “poor man’s copyright”) does not grant you the same protections and rights of owners that registered with the Copyright Office. The difference is critical, especially when it comes to legal proceedings. Copyright owners that have registered may be eligible to collect a higher sum from lawsuits compared to copyright owners that have not registered. If you are only relying on “poor man’s copyright,” you may only be able to collect actual damages — even if you win your suit, you could end up owing more in legal fees than the sum you won. The additional benefits to having your content registered with the U.S. Copyright Office include:
- You receive a certificate of registration.
- Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
- There is a public record of your ownership, your collaborators’ ownership, and the other relevant details of your content.
- If registration occurs within 5 years of the publication of your content, your registration is considered prima facie evidence in a court of law.
- You can record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
Register your musical compositions with a public performance rights organization (ASCAP, BMI, SESAC, etc.): Registering your music with your performing rights organization (“PRO”) is an easy and necessary step for songwriters, composers, and music publishers to collect public performance royalties, which are a form of music publishing revenue that is generated when a song you own is performed publicly (played on the radio, at a venue, on TV, etc.). Your PRO will be able to collect these royalties for you internationally, too. You can register your songs directly on your PRO’s website or through a third party. If you don’t do this, you could be leaving money on the table.
Register your sound recordings with SoundExchange: Similar to performing rights organizations for musical compositions, SoundExchange is a rights collection society that collects digital performance royalties for sound recordings on behalf of artists and labels. SoundExchange will also collect these royalties for you internationally.
Regardless of who you are collaborating with, even the closest of friends, it’s imperative that you use copyright ownership agreements and register with the appropriate copyright societies in order to protect your content from being exploited and to protect yourself from incurring unexpected expenses.
ABOUT THE AUTHOR
Jessica Sobhraj is the CEO of Cosynd, an easy and affordable way for creators to protect their content with unlimited split sheets for free and more complex copyright agreements for as little as $10/month.
The information contained in this article is not intended to be legal advice. You should consult with an attorney for any legal matters. Cosynd provides information and self-help software at your direction only. Cosynd is not a “lawyer referral service,” a law firm, or a substitute for an attorney. Cosynd does not provide legal advice, opinions, or recommendations about possible legal rights or participate in any legal representation.