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Carefully Co-writing without Creative Commons

July 29, 2006

Co-writing with your producer, friends, band mates or [other] professional songwriters is a good thing. But remember–you’re creating a piece of property when you write a song (or record a master for that matter, but that will be the subject of another post). This time that property is intellectual property. Like any other form of property, intellectual property has certain rules of the road that can have some twists, turns and dangerous shoals. You wouldn’t build a house with a partner if you didn’t understand the legal issues of co-owning real estate, and neither should you create a piece of intellectual property with someone without knowing at least a bit about intellectual property law, and particularly the law of copyright.

The other thing you should be clear about is that when you record a song, there are two separate and distinct copyrights in play (no pun intended): the sound recording copyright in the recording (registered with the Copyright Office on a Form SR) and a separate copyright in the song (registered with the Copyright Office on a Form PA) . Different people can own the two separate copyrights. For example, if you are an independent artist and you record your own performance of a song you co-wrote, you would probably claim ownership in the sound recording 100% for yourself, but each writer would claim their own share of the song. A writer of the song would not get a share of the sound recording, and vice versa (unless by coincidence one of the writers is also an artist).

When you write a song with someone else, each of you have the right to license the part of the song you contribute–called your “contributory share” of the work. (If you read the U.S. Copyright Act, you will find a reference to “nondramatic musical works” in Section 115, for example. That’s how you describe a song in the Act.) This all sounds fine and way egalitarian.

Some of you may have heard about something called a “Creative Commons” “deed” or “license” to give away your songs. This “license” has achieved some notoriety but is actually poorly thought out if you are trying to make a living at being a songwriter or recording artist. The first thing you should do is read the license. The way Creative Commons sets up the user interface on their webpage, it’s entirely possible that you could release some works without ever having to read the actual license itself. (Creative Commons is also an organization that was at the forefront of the recent anti-copyright legislation in France and is lead by the hardest working man out of show business, the dynamic and oh, so very soulful Professor Lawrence Lessig, whom we affectionately refer to as Larry Love, the Nutty Professor whose nonprofit fiefdom is busily trying to overturn the Copyright Act of 1976.)

Creative Commons is part of a world-wide organization (Friends of the Commons) that is actively trying to increase the number of works in the public domain. Public domain means that no one can claim rights to the work. So if you put your songs out under a Creative Commons license, the anti-copyright crowd is happy, but will you be when you find out you have given up your rights?

You should make sure that anyone you co-write with DOES NOT use or intend to use a Creative Commons license, as this will have some big problems that I will identify. The general point is that Professor Lessig and his fellow travelers in the anti-copyright movement have come up with what they think will be a music industry equivalent of a “free software” license (aka the “GPL”) without having any experience in the music industry or knowledge of how we work. So it’s fair to say that this Creative Commons world is fine for academics and amateurs, but has no role whatsoever in world of the professional musician. Plus–if you really do want to give your work away, you don’t need Creative Commons to do it.

The first problem with Creative Commons is there is no Creative Commons “legal code” for a song. Given that Creative Commons and their fellow travelers the Electronic Frontier Foundation, Public Knowledge and other front groups don’t have a clue about the music business for one thing and what a song is for another, this is not surprising. Next time you come across one of these people, count how many times they use the word “song” when they mean recording, and vice versa. (“Legal code” is what Professor Lessig calls the Creative Commons license. Cute eh? Computer code, human code, get it? They are nothing if not austere. I for one find something truly odd about the geek tendency to try to express human emotions and actions in terms applicable to machines. Makes me wonder what is going on inside those pointy heads for machines–unlike humans–are not responsible for their actions. Just ask Grokster.)

Another of the many problems with Creative Commons is that there is no concept of co-writers. Reading the license, you will see a reference to “Original Author”. That’s Original Author singular. In the Creative Commons world, there are no co-writers, I guess. Dealing with co-writers would make it a bit complicated, as what if one author wanted to give their share of a song away and others didn’t? What would that mean exactly? Confusing, to say the least. This is yet another reason why you are better off not to co-write with anyone who wants to use a Creative Commons license for their share of a work.

It is also not clear to me if the “original author” retains any rights under a Creative Commons license. For example, if the “original author” puts the work in what is effectively the public domain, does that mean that the original author can still exploit the work commercially? Or more accurately, why would the “original author” want to exploit the work commercially if everyone else could use it for free? I don’t know, but if anyone figures it out, please let me know.

There is also a rule of copyright law that is similar to rules regarding real estate. If two or more people own an undivided interest in a piece of land, then any one of them can grant non-exclusive licenses in the entire piece of property, so long as the terms of the license are “reasonable” and the co-owner granting the license accounts to their other co-owners for their share of the license fee. The same applies to copyrights. So if you have one writer who grants a Creative Commons license in the entire song….What does that mean? I have no idea, but do you really want to take a chance?

Fast forward to the day you sign your first record deal (indie or major). You will be asked to grant a “mechanical” license to the record company, i.e., a license to mechanically reproduce the song in the records you make. This concept of “mechanical reproduction” also includes digital downloads.

Even if the rights you are going to be asked to grant stopped right there, you would have a problem if you don’t control 100% of the song. If the recording you make of the song is the first time that the song is released on a record (or a “phonorecord” as defined in the Act), then that use requires the consent of all the writers. Once the song is released on a phonorecord, the song is subject to the compulsory mechanical license (and just the mechanical license is compulsory) under Section 115 of the Act. That means that your co-writer can stop the initial recording, but no recording after that.

Your co-writer can, however, refuse to take a reduction in the statutory royalty rate provided under Section 115 of the Act, and your co-writer can also demand pretty much whatever they want in the way of a fee for any other use of “your” song. That means that if you have a falling out with your co-writer, they can make your life miserable. Or, worse yet, if your co-writer should happen to die or fail to be compos mentis, your co-writer’s heirs may suddenly be making those decisions–enter the crazy spouse problem.

If you sign a major label record deal, you will be asked to agree to a controlled compositions clause. This is a contract provision that says we don’t care what the Act says, here’s your deal on mechanical royalties. That statutory rate? Not for you. Your rate is going to be 75% of that rate. 17 songs on a CD? Fine–but we’re paying you for 12 (or more likely 11). Free goods? We don’t get paid, so you don’t get paid.

And that co-writer? If the co-writer insists on full statutory calculated outside of the controlled compositions rate, that’s fine–but we take the excess out of your mechanicals.

If you have a few co-writes and they account for 25% or more of the songs, you really start to feel that dip. And it’s all in the control of your co-writer.

Let’s say that you have an opportunity to get tens of thousands of dollars plus much more in promotional value by having a song in the end titles of say Miami Vice. Let’s say your co-writer (or the crazy spouse) hates mohair. It’s all over as a practical matter, because the film will require 100% of the copyright in order to issue a license and if they get wind that there’s a mohair hater in the wings, they’ll move on.

Another problem–splits. What if you thought that you wrote the song 50/50, but oops…turns out it was 75/25 in the mind of your co-writer when there’s money to be made. Or at least that’s what he told ASCAP when you checked the song registration a year or so after you wrote the tune. Not fun.

And what if you put a work out into the world under a Creative Commons license? No problem, unless you have an issue with not being able to terminate that license for 35 years–duh, of course you do, so don’t use the Creative Commons license unless you are absolutely sure you are never, ever, ever going to want to commercially exploit that song–such as recording it for a major label. This is assuming you can figure out which of the Creative Commons licenses apply to songs, and if you do, please let me know because I’m not smart enough to figure it out. It also assumes that you have a perfect vision of the future, which I for one do not. Just in case the only hit you ever write is the one you gave away under the Creative Commons license, better to avoid those people altogether.

So how do you avoid all this stuff as an artist-writer? It’s actually pretty simple but it requires a bit of discipline and some attention to detail. You sign a simple co-writer agreement that covers some basic points:

1. Say what the splits are–in writing–and divide up music and lyrics;

2. If you get a record deal, your co-writer agrees to take your controlled compositions rate, subject to an obligation to pay your co-writer or arrange to have her paid;

3. If you want to license for a film (or one of your own music videos), you have the right to negotiate and contract for 100% of the song, subject to an obligation to pay your co-writer or arrange to have her paid;

4. You get to record the song first; and

5. Never write with anyone who wants to use a Creative Commons license.

Note that if your co-writer already has a publishing deal, you will need to get that co-writer to get their publisher to approve whatever the co-writer is agreeing to, since the co-writer has way more than likely given up those rights to their publisher.

There are some other bells and whistles that should go into one of these documents, which is why you really should consult a lawyer to come up with the form for you (and DON’T change it), leave the splits blank, though.

If you take a little bit of time to get this done when it’s all warm and fuzzy, you will be so glad when if it all falls apart later, but you want to be able to use your songs.

  1. September 22, 2008 at 05:47

    Can you give me a rough guideline of how songwriting percentages should be distributed? in other words, does the music writer get 50% and the lyrics/meldoy writer get 50%? what if one person wrote the verse and bridge and the other person wrote the chorus and outro? i’ve been looking all over the web, but can’t find any info on this, so thanks for any light you can shed…

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  2. July 21, 2009 at 20:12

    Here in Nashville, TN, where I live and write songs, the general rule is an even split among all songwriters. So if if co-writer #3 only contributes one line to the song, he/she is still the 1/3 owner of the entire song. After all, who's to say that the song would have been any good without that crucial line? I know a guy here who won a Grammy as the third co-writer of a hit country song, and he never wrote one word or bit of music to that song: he did, however, come up with the idea for the song. So there never would have been a song without his contribution of the song concept.

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  3. July 24, 2010 at 16:58

    Exactly. You create the work together. All contributors have rights to the song, so you need permission from all parties before you can license the work to any other party under such terms. Since assigning the rights to the public could damage the interests of the other owners, I doubt one of the owners can legally use any of the commercial or derivatives-allowed licenses offered by Creative Commons.*With recordings, I think the simplest license is the CC-BY-NC-ND (non-commercial, no derivatives). That would allow fans to trade copies of the recording, but not allow them to modify your work.A more permissive license (say, sharealike) would presumably allow the public to do things like create sheet music, or do their own recordings of the song, or other activities that would conflict with the copyright you hold over the song itself.Your questions are partially answered "here". "Make sure you have the rights," and "Know what you're licensing" are good advice.You equate CC licensing with "the public domain." Don't. There's a reason their tagline is "Some Rights Reserved."It's poor advice to say, "Don't ever, ever, ever collaborate with someone who favors Creative Commons licenses." Better advice: Get agreement on how you'll handle your respective interests in the song, and specify whether those expectations are compatible with different kinds of Creative Commons Licenses.** Then, get it in writing.You argue that CC licenses are worthless, since you don't "need" them to give away your work. You can go it alone, just like you could build your own guitar from scratch. Similarly, writing legalese yourself is time-consuming and dangerous. Is that what you're advising your readers to do rather than use CC?Yes, CC is set up so that people might give away some of their rights without reading the exact legalese under which you're licensing your work. But they make a herculean effort to get people to understand how copyright works and exactly what rights they're giving away. They're not trying to trick you. But they understand that–for layfolk–legalese is both incomprehensible and eye-gougingly boring. But even if your livelihood depends on you getting your licensing perfect, you can still use Creative Commons licenses to good effect. But not only should you read the license, you should get a lawyer to read it with you and explain its full implications. Sounds like a burden, yes. But having your lawyer write something equally suited is prohibitively expensive.If you truly want your fans to trade your songs and promote your work, a CC license is faster, easier, and safer than any alternative you can suggest.* They could, however, use the Public Domain license, since all it does is remove the licensor's claim on the work. Other owners are still free to enforce their rights.** You complain about how hard it is to choose a license. Here's my advice: slapping a non-commercial, no-derivatives license on a recording is extremely safe. Beyond that, get a lawyer. You still have to know what you're getting into. CC lowers the bar, but it doesn't eliminate it.

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  4. July 24, 2010 at 16:59

    You argue that CC licenses are worthless, since you don't "need" them to give away your work. You can go it alone, just like you could build your own guitar from scratch. Similarly, writing legalese yourself is time-consuming and dangerous. Is that what you're advising your readers to do rather than use CC?Yes, CC is set up so that people might give away some of their rights without reading the exact legalese under which you're licensing your work. But they make a herculean effort to get people to understand how copyright works and exactly what rights they're giving away. They're not trying to trick you. But they understand that–for layfolk–legalese is both incomprehensible and eye-gougingly boring. But even if your livelihood depends on you getting your licensing perfect, you can still use Creative Commons licenses to good effect. But not only should you read the license, you should get a lawyer to read it with you and explain its full implications. Sounds like a burden, yes. But having your lawyer write something equally suited is prohibitively expensive.If you truly want your fans to trade your songs and promote your work, a CC license is faster, easier, and safer than any alternative you can suggest.* They could, however, use the Public Domain license, since all it does is remove the licensor's claim on the work. Other owners are still free to enforce their rights.** You complain about how hard it is to choose a license. Here's my advice: slapping a non-commercial, no-derivatives license on a recording is extremely safe. Beyond that, get a lawyer. You still have to know what you're getting into. CC lowers the bar, but it doesn't eliminate it.

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  5. July 24, 2010 at 21:30

    I don't think I said that Creative Commons Corporation licenses are worthless, I think I said that they are ambiguous and internally inconsistent. Also that there can be some unintended consequences in the co-owner situations. I agree that anyone with a meaningful catalog needs to have advice about how best to relinquish their rights which I would imagine is what happened in the case of the handful of superstar artists who have used the Corporation's license.The Grateful Dead actually posted a policy about noncommercial uses of their recordings (which I think was misrepresented in the Grokster case) and they left it at that as far as I know. My recollection is that it was less than 100 words. I'm willing to be educated otherwise, but I believe that it has served them well in its brevity.

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  6. July 26, 2010 at 13:23

    Bryce, take a closer look at this statement which I think is fairly the predicate for a number of conclusions you draw:"All contributors have rights to the song [correct], so you need permission from all parties before you can license the work to any other party under such terms [correct/incorrect]."Assuming "you" is the licensee, your second statement is correct–but it seems that you're thinking of the licensor not the licensee as the licensee would be the "other party". Assuming "you" is the licensor, this is where you are not correct and this is a nonobvious point of the law. Co-owners of an undivided interest in property (such as co-writers of a copyright) can grant a non-exclusive license in the whole at on commercial terms (or at least not economic waste) subject to a duty to account to their co-owners. There is no duty of notice to or permission from the co-owners (however reasonable it would be to get permission, which it would be).It is exactly here and for this reason where the Corporation license starts to fall apart. While I don't criticize you for not being up to speed on this concept, it is something that is taught in a 1st year property class in law schools where the common law obtains. So I expect lawyers to know the point and be able to explain why it is not a problem.If someone can explain to me why this principle does not apply in the US to the Corporation's licenses, I'm all ears. It hasn't happened yet.

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