Music Law: Vol. 3

Music Law​is a semi-regular column where our readers receive expert legal advice fromrenowned entertainment lawyer Gene Goodsell.

Song Ownership: An Overview & Break-down

Q: When it comes to songs, who actually owns what?

It should come as no surprise that there are disruptive forces at play in the music industry at the moment. Technology – that great big proverbial snowball that just keeps gathering both speed and mass – is bringing out all kinds of good and bad in an industry that plays such an important part of our lives. First there were computers, changing both the recording and producing landscape, and giving birth to the rise of electronic music. Then came the internet, with its promise of connecting people from every corner of the globe with a single click of the mouse, subsequently changing the way in which music is bought and sold, shared, marketed and critiqued.

When it comes to musicians, composers, performers, producers, publishers and record labels (amongst a host of others), these changes have meant that the way in which ownership over music occurs is not as straightforward as it once was. Furthermore, the emergence of illegal torrent-sharing websites and the growing consumer preference to stream music rather than buy it, has meant that revenue from the actual purchase of music hasn’t been looking pretty for quite some time.

For these reasons, we felt it was pertinent to look at an often overlooked question: when it comes to songs, who actually owns what? This article will cover the key issues that anyone with an interest in a song or songs should be taking into consideration. The importance of knowing who owns what is that it will affect any money that the song makes via royalties.

Copyright

As was discussed in our previous article, Music Law: Vol 2, the key to understanding how ownership of a song works is copyright. Whether you’re a musician, composer, songwriter, singer, DJ, producer or even a sound engineer (or, as is often the case, a combination of some or all of the above), copyright is the main legal issue that gives rise to the rights and obligations that pertain to song ownership. It should also be noted, as with most areas of law that contractual arrangements can amend, enhance or altogether forfeit copyright protection in music.

How do you copyright your song, you ask? The good news is, you don’t actually have to do anything! As soon as you have written a song or recorded it in some way (i.e. turned it into a ‘material form’), the Copyright Act 1968 (Cth) provides you with automatic copyright protection. It is a common misconception that you need to include the © symbol on any of your songs or demos in order to protect them from illegal use (although there’s absolutely no harm in including the © symbol, your name and the date your work was created to remind anyone thinking of stealing your work that it is protected by copyright).

Ownership Break-down

So, you’re in your room with your guitar, jamming away. You’ve nailed a catchy riff with some lyrics to boot (that aren’t a rip-off of somebody else’s work). You record yourself on GarageBand and voilà! You are now protected by the Copyright Act. One song, one owner.

What if you’ve teamed up with a singer who’s written their own lyrics for the song that you’ve composed? Let’s say you’re a house music producer that’s just laid down a track from scratch and you’ve brought a singer into the studio to record some lyrics they’ve written over your song. In fact, thanks to the internet, the singer may be on the other side of the country and has e-mailed you a wav. file with their vocals. Here, you’d still own the copyright in the music, but the singer would (subject to any contractual arrangements) own copyright in the lyrics, which are classified as literary works. One song, two owners.

Looking at incorporating some additional live elements into your song? As an electronic producer, you might want a live sax solo or some funky guitar licks to give your song more of an organic feel. As a singer/songwriter, you might want some drum kit and bass for a fuller sound. Well, (again, subject to any contractual arrangements) whilst you still own the copyright in the music you’ve composed, each of these musicians will own the copyright in the recording of their respective performances. One song, three/four/five etc. owners.

Now, you’ve finally broken through the hordes of pretenders and gotten yourself signed to a record label. Often (but not always), record labels will be responsible for the final recording of a song that you’re going to release through them. In instances where the label has made this final recording, they will own copyright in the sound recording. One song, yet another owner.

So, as can be seen, any given song may have a composer, a lyricist, a performing artist and a record label all with legitimate rights of ownership. In reality, the ever-growing business of collaboration could mean that there are multiple composers, multiple lyricists and multiple performing artists.

Legal Take-out

As we mentioned above, contractual arrangements can change the way copyright ownership unfolds. In particular, composers, singers, performing artists and even producers can be brought in under a contract where they are paid a fee in return for their services, under the condition that they will not retain any ownership over any part of the song.

Session musicians are a good example of performing artists who make a living out of being paid to ply their trade on other people’s songs without retaining any form of ownership. A well-negotiated agreement will ensure that if a session musician is content with forfeiting any rights to their recorded work, they are compensated accordingly.

When it comes to bands, agreements between members will usually outline each individual’s rights and obligations, including how song ownership is apportioned. It is crucial that this is done at an early stage; bands are usually formed with a view to continue to play together for the long-term. An early agreement will ensure that each member knows where they stand from day one.

In conclusion, any arrangements relating to song ownership will always be a matter of preference, but it is always best to know exactly what it is you’re agreeing to. Agreements should always be in writing and subject to careful review by an entertainment and commercial lawyer with experience in the industry. You just never know how successful a song may be…

Editor’s note:

Goodsell Lawyers is the only Australian music and entertainment law firm with an alliance with a leading Hollywood entertainment law firm. Goodsell Lawyers has worked with prominent US booking agents, such as Paradigm in Beverly Hills. It hasalsoworked with artists such as Chingy and T-Pain.

To read more about Gene Goodsell and get in contact, visit the firm’s official website:http://www.goodselllaw.com.au.

Gene tweets at:@GoodsellLawyers