[HELPFULAW FOR THE INDIE ARTIST is a new advice column on legal matters pertaining to the music industry. If you have a question for our columnist, attorney and indie artist Christiane Cargill Kinney, please feel free to leave them in the comments section below or visit the website of her firm LeClairRyan.]
Q: I wrote a song with a friend of mine a few years ago. I wrote all of the music, and she wrote all of the lyrics. We released the song on an independent album, but nothing ever happened with it. Recently, I was approached by a producer interested in licensing an instrumental version of the song for a film. Since I wrote all of the music, do I need to include her in negotiations, and will I owe her any money if the song gets licensed?
A: Ah, the grand world of songwriting collaborations. So many famous pairs come to mind: Lennon and McCartney, Jagger and Richards, the list seems almost infinite. Unfortunately, good songwriting collaborations can fall apart almost as easily as a female pop icon’s reputation after a good head shave. Since you described this person as a “friend,” I’m going to assume that this is still salvageable, much like your reputation after having one too many on Karaoke night and doing that really bad rendition of “Freebird” on stage, complete with air guitar solo. But I digress. Getting back to your question.
To better understand the laws relating to songwriting partnerships, we need to explore an area of U.S. Copyright Law known as the “joint work.” Under the U.S. Copyright Act, a “joint work” is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” By this point, you may be thinking, “Huh? Can’t lawyers just write like normal people?” So let me help to break this down.
The most important element in determining whether the song is a “joint work” is the intention of the parties. If the two of you wrote the music and lyrics separately, but with the intention that they would be joined together into one song, your work is a “joint work,” regardless of which part of the song you may be licensing for film, and the laws related to joint works should apply (absent a written agreement otherwise).
Now brace yourself, this next paragraph is almost as long as the uncut version of “American Pie,” (the song!) but it gets to the heart of your question. Each joint owner of a copyrighted work may use, or grant a non-exclusive license for another person to use, that work in the United States without the consent of the other owner, as long as the use does not destroy the value of the work, and the parties do not have an agreement requiring the consent of the other owner for such use or licensing. (Again, huh?) All this dense legal jargon means you are probably free to negotiate with the film producer at this time without including your partner in those negotiations. However, if the music is ultimately utilized in a film, you will owe your partner half of the royalties you receive from the deal because, unless you both agree otherwise, a joint work is assumed to be owned in equal shares among co-authors, regardless of the actual contributions they each made to a particular song.
In practice, no one else wants to get sued, so the film producer may ask you AND your songwriting partner to sign off on the deal, or they may simply have you provide a “warranty and representation” that you are the owner of the work to be licensed (kind of like a triple dog pinky-swear), along with an agreement to “defend and indemnify” them in the event someone else suddenly appears later and says otherwise (kind of like agreeing to pay someone you hardly know an unlimited amount of money in attorneys’ fees and judgments on their behalf if they ever get sued for the use of your song; oh wait, it’s EXACTLY like that).
Now, you may be thinking to yourself: “Well, if intent is the most important factor in the equation, I can honestly say that I always intended that the music would be a separate work, at least when it was convenient to me.” (Cue Star Trek “Red Alert!!”) Here’s the problem with relatively subjective issues like “intent,” at least from a legal perspective: they invite dispute and litigation. And dispute and litigation invites you to spend a lot of your hard-earned money in pursuit of what is right or noble, and five years down the line, neither of you will probably remember what you are fighting about in the first place. So if there’s any doubt, save the headache, salvage the friendship, and pay your songwriting partner his or her share of the licensing fees.
One more word to the wise: songwriting collaborations can be wonderful. However, the best friendships can go terribly awry if you don’t communicate your intentions early on in the partnership. One of my favorite quotes from my filmmaker hubby (used and reprinted here with his express permission, of course) is this: “Contracts preserve the friendships that the business venture is based upon.” It is well worth the time and money upfront to enter into a written agreement with your songwriting partner, and to consider issues such as ownership and control over the songs, mutual consent to license joint works, percentages of ownership other than the standard 50/50 split, accounting obligations, and other important considerations.
In summary, unlike the songwriting partnerships themselves, the songs that collaborators write together are more like the marriages of the good ‘ole days of the Roman Catholic Church before the Reformation – the lyrics and music are often bound together for life (plus seventy years of the afterlife)! So, if you’ve written a song with a partner, you are both generally free to commercially exploit the work in the lucrative film licensing market, and to seek opportunities to license the music which are “non-exclusive” (exclusive licenses require the consent of all co-owners, but this is a topic for another time). And, absent an agreement otherwise, your partner is entitled to HALF (just like Eddie Murphy explains in Raw).
And now some fine print…
© 2012 LeClairRyan, LLP (“LR”). All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. LR does not represent or warrant that this Blog contains information that is true or accurate in all respects or that is the most current or complete information on the subject matter covered. Christiane Cargill Kinney is a Partner and Chair of the Entertainment Industry Team of LeClairRyan, LLP.