Outline of Main Issues for Songwriters
By Dean Sheldon Serwin, Esq.
The following sets forth a brief outline of the main topics that I am often asked by writers. The complexity of each topic cannot be over-emphasized and the chart below should be treated merely as establishing points for analysis and discussion.
Am I a writer?
If you are asking this, then the answer is likely, yes. A writer is an author of a work, in this case, a song. Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a signed, written agreement by which the author assigns the copyright to another person or entity.
Who owns the copyright?
You, but there can be instances where you do not. If the song is in fact written as a work made for hire, then no.
Who is the Publisher?
The copyright owner is the Publisher. As the writer, you are AUTOMATICALLY the Publisher of what you wrote, unless and until you assign that right to someone else. Do NOT let someone fool you into “letting them” act as the publisher because, the “already have a pubco set up at [ASCAP, BMI, SESAC]”.
How do I assign the copyright?
By any form of signed writing. While there is commonly used language, there are no magic words.
What is a PRO and why do I care?
performing rights organization (in the US, ASCAP, BMI and SESAC) license and collect for “small performance rights” which basically means a public performance by radio, TV, some internet, public places like bars and concert venues for example, and, very importantly, most streaming music services.
You can license these rights yourself, but why when the PRO does it so well?
Some users of music (like Disney) will require a “direct” license from you.
You sign up with one PRO as a writer and with the same one as a publisher. This is your publishing company or “pubco.” ANYONE can register with a PRO, you simply complete a form.
Why would I want a 3rd party Publisher (other than me)?
A Publisher is the party that deals with the business of the copyright: they license it, they collect the money, then enforce the rights. This is easy if your music is only used by a couple of people and you know who they are, but that is not how the music industry works. It is very complicated to make sure your music is properly registered and licensed around the world, and to then collect all of that money and make sure it is paid properly. Third parties work with lots of other writers and can “place” you with them. Also, if you are lucky, they will pay you an advance for the right.
Why would I not want a 3rd party Publisher?
They take all or a part of your copyright. They generally do not give it back. Most are not even close to perfect at doing their job.
What happens when I write with someone else?
Each co-writer is a co-author. Each is AUTOMATICALLY a co-Publisher since they are the Publisher of their share. Unless, that is, they sign away (assign) their copyright (publishing), to one of the other writers.
How do I make money?
Basically, from public performance; mechanicals; synch; grand rights. Broadcast mechanicals are not paid in the US, but can be an important source of income outside the US, which is why you want to have someone collect for you X-US.
How do we decide each writer’s share?
Under U.S. copyright law, each joint author’s share is equal to one divided by the number of authors. So, by default, if there are two writers, each owns an “undivided interest” in 50% of the song. Unless, that is, you all agree, in a signed writing, to alter that.
Do we need a “split sheet”?
If everyone agrees to equal splits, then you do not need to have a “split sheet”.
If everyone agrees to alter the shares (e.g., Jimmy only gets 5%), then you need to have a “split sheet” which is written document setting forth the name of the song(s), the names of the writers, and each writer’s share and which EVERYONE signs and dates. This is the best way to avoid disputes later.
Why agree to take less than your share?
There can be a lot of reasons, for example: (i) as a condition of being invited to the writing session; (ii) to be fair; (iii) because you are paid to; (iv) the producer required it; (v) you are convinced to; etc.
How do we determine splits other than pro-rata?
There is no easy answer and this is one of the most common arguments amongst co-writers. It becomes a negotiation. A track producer will commonly ask for 50% even if there are more than 2 total writers.
What if I already wrote the song before others made suggestions?
If you believe that you have a fully formed song, but want to share it with others for suggestions, you need to decide if you want to fight to retain a separate copyright in the “original” version. This can happen often with producers who pitch tracks for top-lining and can lead to conflicts, and should be discussed and agreed to before sharing the “original”.
When should I/we register songs with the PRO?
As soon as the songs are created and splits agreed. While not the same as filing for copyright registration, registering a new song with your PRO establishes a date that the song first existed.
Is my producer a songwriter?
Only if he/she contributes to the song. If the producer creates the instrumental track (as in EDM, most Pop, Hip-Hop and R&B), then he/she is almost certainly a songwriter. More and more, the producer is the artist and the vocalist is simply a featured performer hired by the producer. If the producer is a glorified engineer (as in most rock), then probably not, unless everyone agrees he/she is. This is why you need a signed producer agreement.
Do all co-writers have to agree on everything?
Not really. Each joint author can technically issue a non-exclusive license on behalf of the entire copyright so long as that writer provides written notice to the co-authors and pays them their share of the proceeds. Most synch licensees are nervous about this kind of thing, though.
What about the “first use” mechanical?
A mechanical license grants the right to reproduce a song by a mechanical means (which includes all physical configurations, downloads, and even streams). Once a song has been recorded and released in the US, anyone can re-record that song and secure a “compulsory” mechanical license. The “first use” mechanical is what it sounds like: the first right to record, and it can be withheld. There unfortunately is no clear answer as to if one joint author can issue the first use mechanical on behalf of the other writers.
What is metadata?
Information, including the name of each writer, the publisher and their PRO.
Why is it important?
Metadata is how people using your songs know whom to pay.
Can I sign away my “writer’s” share?
Yes, but it is uncommon, and requires specific language of assignment, or of services as an actual work for hire.
CALL DEAN AND ASK HIM.
About The Author
A graduate of UCLA Law School who began his practice of law in 1990, Dean Serwin works primarily in the entertainment industry. His experience prior to establishing his private practice included working for a sole practitioner with several platinum artists, as head of legal for a film and TV production and distribution company, and positions at the Director’s Guild of America, BMI and Capitol Records. Dean has lectured extensively for groups ranging from Art Center film students to Harvard MBAs and from California Lawyers for the Arts conferences to The Learning Annex. Dean’s Hollywood, CA based solo law practice began in 1994 and serves clients in all areas of the music, film, video, TV, internet and distribution businesses including record labels; music publishers; recordings artists; songwriters; music, television and film producers; managers; television, film and internet production and distribution companies; business executives and consultants; authors, clothing companies, as well as others involved within the entertainment industry.
Dean Sheldon Serwin, Esq.
1107 Fair Oaks Avenue
South Pasadena, CA 91030-3311
dean AT deanserwin DOT com
The forgoing materials contain abbreviated and generalized information presented purely for educational and general information purposes only and shall not be deemed either legal advice given by or a solicitation for business by Dean Sheldon Serwin, nor shall it create an attorney-client relationship. The materials should not be relied upon or construed as legal advice and may be out of date. Always secure legal consultation with a qualified attorney, licensed to practice in your state. NARIP and Dean Sheldon Serwin neither assume nor bear any liability or responsibility for errors or omissions in the contents of these materials.
© 2017 Dean Serwin, Esq., used by NARIP with permission, all rights reserved, duplication prohibited.