After your band has written and recorded a song, who actually owns the song? This simple question does not necessarily have a simple answer. How many people were involved in the writing process? Were there other people involved in the recording process? Did you hire a producer? Did you use other background vocalists or musicians in the studio? Did you use “work made for hire” agreements with individuals involved in the process? Do you have a band agreement? The answers to these and other important questions help determine who actually owns the copyrights in any given song.
In general, the individual who writes or records an original song owns the copyright in the musical work or sound recording. So if only one person is involved in the writing and recording process, then that person owns the resulting copyrights.
Of course, it is more common for two or more individuals to be involved and contribute to the writing and recording process. Co-authors of a song or recording co-own the copyright in that work. Absent a written agreement otherwise, co-authors of a song each jointly own an equal undivided interest in the copyrights (i.e., 2 co-authors each own 50%, 3 co-authors each own 33.3%, and etc.). Thus, even if one co-author actually wrote 90% of the song and the other co-author only wrote 10% of the song, if they don’t agree in writing otherwise, they each own 50%.
Whether an individual is an author (or co-author) generally depends on whether the individual has “control” over the creation process—that is, whether that person was the “mastermind” behind originating the work. Where there are two or more creators of a copyright, the creators are co-authors and joint owners when the authors intend their contributions to merge to become part of a whole. Accordingly, individuals who write or record music together are generally co-owners under copyright law.
When joint owners have not entered into a written agreement otherwise, each co-owner has the authority to grant a non-exclusive license to a third party without the co-owner’s consent. A non-exclusive license means that others can also use or exploit the work at the same time as the third party. If a co-owner attempts to convey exclusive rights to a third party, an exclusive license effectively becomes a non-exclusive license. A joint owner of a copyright cannot sue a co-owner for infringement. But a joint owner can bring a claim against a co-owner for an accounting on any profits earned by the co-owner from the joint work.
In certain situations where the individual author is acting as an employee or otherwise under a “work made for hire” agreement, his or her employer or principal will own the song as a “work made for hire.” In the case of a “work made for hire,” the employer/hiring party—not the individual writer—is the “author” and owns the copyright.
Whether someone is “employed” for purposes of determining whether a song is a “work made for hire” does not require a formal employment relationship. Rather, “employment” is generally determined by whether the “employer” has control over the creation of the work (i.e., has the work done at the employer’s location and provides equipment or other means to create the work) and control over the “employee” (i.e., controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, etc.). The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created in the scope of that employment will be a “work made for hire.” Examples include a musical arrangement written for a music company by a salaried arranger on the company’s staff, or a sound recording created by salaried staff engineers of a record company.
Where there is not an “employment” relationship, a work may still be a “work made for hire” where the parties enter into an agreement signed by each party that expressly provides that the work is a “work made for hire.” However, under copyright law, only specific categories of works can qualify as a “work made for hire” this way. In particular, Congress did not include sound recordings in the specific categories—so, a sound recording alone can’t be a “work made for hire” absent an “employment” relationship.
Because there can be uncertainty over whether a work is created on a “work made for hire” basis, music contracts will typically provide “work made for hire” language and alternate copyright assignment language. We will discuss copyright assignments and transfers in a future Music Law 101 post.
In short, where more than one individual is involved in writing and recording a song, copyright ownership can be complicated. The individuals may be joint owners with equal undivided interests, or ownership could be determined on a “work made for hire” basis. The best practice is to enter into agreements with co-creators to make sure that everyone’s intention as to ownership is agreed upon and clearly specified in writing.
Now that you know what copyright law protects, and how ownership of copyrights is determined, stay tuned for our next Music LAW 101 post, in which we will explain the different exclusive rights a copyright owner has in his or her work.
The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.