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by Donald S. Passman
Who Owns the Copyright?
Copyright ownership is pretty easy to determine if you sit
down at the piano and knock out a little ditty by yourself.
You, of course, are the owner, since you created it. But we
lawyers wouldn't have much to do if it were all that simple,
so let me show you how we've managed to fuzz it up over the
years.
How About Two People Writing a Song Together?
Suppose you and your cousin Louie sit down and write a brilliant
work together. Which one of you owns it?
As
you probably guessed, both of you own it. But there's more
to it than appears at first glance:
Who Controls the Song?
Suppose you want to put it on your next album, and Louie wants
to save it until he gets a record deal. Can he stop you?
The
Copyright Law, in Section 201-A of the Copyright Act, spells
this out pretty clearly. It says that you and Louie have created
a Joint work, meaning that it was created jointly by
the efforts of two or more people (keep the puns to yourself).
When you have a joint work, either of the authors/owners can
deal non-exclusively with the entire composition, subject
to the obligation to pay the other person his or her share
of the proceeds. That means you can give all the nonexclusive
licenses you want to record companies, film companies, etc.,
subject to paying Louie for his share of the song. And Louie
can do the same.
What Do You Own?
How about this one: You and Louie sit down together to write
a composition, and you write only the music while Louie writes
only the lyrics. Suppose you don't like Louie's lyrics and
want to take your music and write with somebody else. Can
you?
My
partner Payson Wolff once told me that creating a joint work
is like adding water to a ball of clay and squishing it; it's
not so easy to separate the two afterward. My partner Bruce
Ramer uses the analogy of scrambling the white and the yolk
of the egg together. As you may be starting to guess, the
law isn't what you would intuitively think. It says that,
even though two people create separate, distinct parts, they
each own an interest in the whole work, not just their own
contribution. Thus, Louie owns half the music and half the
lyrics, and so do you. So you can't just pick up and leave
him. Even if you add new lyrics, he still has a percentage
of the song.
Does
this sound like an absurd result? To some extent, yes; but
if you get into dividing up works where the contributions
aren't so easily defined as music and lyrics (which is 99%
of the time), the alternative is even more impossible. Think,
for example, about all the elements that go into making a
film. What part is the screenwriter's? The director's? The
producer's? The wardrobe designer's? Or what about a song
where three people work on the lyrics, while two work on both
music and lyrics?
What Makes A Joint Work Joint?
By now you're beginning to see that this is more complex than
it first appears. Which it is. But we're just getting warm--try
this one: A songwriting team consists of one person who lives
in California and writes only music, and another who lives
in New York and writes only lyrics. The California writer,
totally on her own, writes a piece of music and mails it to
her friend in New York. The guy in New York gets it several
days later, sits down, and writes the lyrics. Is this a joint
work? Did these two people create the composition together?
The
law says, to have a joint work, you only need an author who
intends , at the time of creation, to merge his or her work
with someone else's. In other words, when the musician wrote
the music in California, did she intend to have lyrics written
for it? That certainly is the case in our example, even though
the lyricist never physically got together with the melody
writer. (It's almost always a certainty that a lyricist intends
to merge the words with music, since he or she probably has
little call for poetry readings). So, to have a joint work,
you don't need to be in the same room (or on the same planet),
and you don't even have to know each other, as long as there
is an intent to merge the work at the time of creation.
If
you want to see how this can get carried to the ultimate,
get a load of the "Melancholy Baby" case. In that case, a
guy named Ernie Barnett wrote a song with his wife Maybelle.
Ernie wrote the music and Maybelle wrote the lyrics, and they
sold the song to a publisher. Well, Maybelle's lyrics were
apparently pretty awful so the publisher tossed them out and
had a new set written by a total stranger, George Norton.
The result was "Melancholy Baby."
Based
on these facts, the court held that "Melancholy Baby" was
a joint work because, when Ernie wrote it, he had the intent
to merge lyrics with it. The fact that the lyrics were ultimately
written by someone he never met was irrelevant. And this result
also meant the new lyricist held an interest in the music,
too (although the case didn't deal with that issue). Nice
coconuts, eh?
Donald Passman is a Los Angeles-based
music attorney with the firm of Gang, Tyre, Ramer & Brown.
Specializing in music business law for over 20 years, his
clients include major publishers, record companies, film companies,
managers, producers, songwriters, and artists such as REM,
Janet Jackson, Quincy Jones, Tina Turner and Green Day. On
a regular basis, we will be excerpting from Mr. Passman's
best-selling book, "All You Need To Know About The Music
Business."
From "All You Need To Know About The
Music Business" by Donald S. Passman. ©1991, 1994, 1997
by Donald S. Passman. Reprinted by permission of Simon & Schuster,
Inc.
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