This Article Originally Published June 1998
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?
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?