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Trends: Deals, data and disputes – when copyrights are co-owned

By | Published on Monday 31 October 2016

Copyright Ownership

Bob Geldof was recently sued by a former bandmate over the copyright in what is arguably his most famous song outside the Band Aid project, the Boomtown Rats hit ‘I Don’t Like Mondays’.
Geldof has always been listed as the sole writer of that work and therefore has received 100% of the song royalties. But the band’s keyboardist Johnnie Fingers, aka John Moylett, reckons he actually contributed to the song, but was persuaded to go without a credit when the record was first released in 1979.
Thirty seven years on, he wants his share. But what does copyright law say about ownership and co-writes, and can someone really arrive on the scene claiming to be a co-owner of a song so many years after it was written?

In most countries, including the whole of the European Union, copyright is automatic. Which is to say, unlike other forms of intellectual property, such as trademarks and patents, copyright owners do not need to register their work with any statutory body in order to enjoy control over their IP. The copyright exists as soon as a song is written or a recording made, providing certain criteria are met as set out in the local body of copyright law.

DEFAULT OWNERSHIP RULES
Because it is automatic, the law has to tell us who the default or presumed owners of any new copyright are. Default ownership rules vary from country to country, and according to the ‘kind’ of copyright.

In the UK, the default owner of the song copyright (which is actually two copyrights, the lyrical right and the musical right) is the songwriter. The default owner of the separate sound recording copyright is whoever pays for the recording to take place, what copyright law unhelpfully calls the ‘producer’ (it doesn’t mean record producer).

There is an aside worth noting here. Although writers and composers – and for that matter, artists and photographers – are the default owners of the copyright in any literary, dramatic, musical or artistic works they may create, if they do that work as an employee of a company, the copyright goes to the employer. Though there needs to be a true employer/employee relationship for that rule to apply.

Then there is assignment. The default owner of a copyright can transfer ownership to another party by contract. So where a company hires someone on a freelance basis, rather than as a true employee, the company can still take ownership of the copyright in the work they commission, providing the freelancer agrees to sign an assignment contract.

In the music industry, artists often assign the rights in their recordings to record companies and songwriters often assign the rights in their songs to music publishers (and, technically, their collecting societies too). They do this to access money and services, and will often assign the rights in both existing and future works.

Once assignment has occurred, the third party to whom the rights have been assigned becomes the copyright owner, and all the controls of the copyright now belong to that third party. The artist and songwriter may retain some controls – and usually a right to share in any future income generated by their works – via the assignment contract, though that’s for the contract (and possibly industry conventions) to set out; ie those rights don’t come from copyright law itself.

Copyright law does also provide moral rights for songwriters who have assigned their copyrights to third parties, and these exist beyond any assignment contract. Though in the UK, moral rights are pretty weak and can be waived by the assignment contract anyway. Meanwhile recording artists enjoy performer rights over the recordings on which they appear, even when they are not the copyright owner. The most important of these is the ‘performer equitable remuneration’ due on performing rights income.

CO-OWNERSHIP
When two people collaborate on a piece of work, they co-own the resulting copyright. Such collaboration is very common in songwriting, which means that it is very common for the copyright in songs to be co-owned by multiple parties.

Where you have multiple owners, they each separately enjoy the controls of the copyright. That means that if a third party wants to exploit those controls – say they want to sync a song to an advert – they must get separate permission from each and every co-owner, any one of which can say “no”.

Actually, in the US, the default position is that any one co-owner can say “yes” on behalf of everyone, providing they then share any income with the other co-owners. This is often called 100% licensing. Though most songwriters who collaborate will have agreements that say they won’t exercise this power, so in practical terms a US licensee still needs to get separate approval from each co-owner.

Of course, a key question co-ownership poses, is what share of the copyright does each co-owner get? Say four people collaborate on a song, do they get 25% each or do they each get a different slice of the pie?

Generally speaking, copyright law doesn’t have an opinion on this. It simply says that co-created works are co-owned by the creators. It is then for the collaborating creators to decide on their respective splits. Providing this is agreed – and it’s best for that agreement to be written down – the law will generally enforce the agreement.

There is no right or wrong way for creators to decide on how copyright ownership is split. Technically, where one person writes the lyrics and one person composes the music, each collaborator actually owns a different copyright – the lyrical right and musical right being separate copyrights. Though you might lump them together anyway and then split the combined song rights 50/50.

But is an equal split between collaborators the best way? Some songwriting teams simply agree that whatever happens during the songwriting process, they’ll split any resulting rights equally. This is particularly common where you have bands who create new songs together, and there is an argument that an equal split of song ownership creates less tension within the band than one band member getting the majority of the publishing rights (and therefore the publishing income).

Others would say that each collaborator’s respective split should be based on their contribution. If one band member brings songs pretty much written to the studio, and then other band members simply add a few extra elements, then perhaps the primary writer should own the majority of the resulting rights. Though such arrangements may need to be agreed on a song-by-song basis.

And, realistically, sometimes fame is a key factor. Which is to say, if five people go into a room and collaborate on a song, and one of them is a popstar, they may well get a bigger slice of the copyright than their actual contribution possibly deserves. The legal cliché in relation to popstar co-writes is “write a word, get a third”.

AGREEING AND LOGGING SONG SPLITS
While there is no right or wrong way to decide how the copyright in a song is split between collaborating songwriters, it is important to decide. After all, those splits will usually dictate how subsequent income is shared between the collaborating writers, especially where money comes in through the collective licensing system.

Songwriters are notoriously bad at having the song split conversation, partly because no one likes to talk about money, partly because there’s a fear such a conversation might create tensions, and partly because once a new song is written, the writers want to party rather than sit down and talk business. Sometimes there is also the issue of deciding exactly when the song is finished; might another party be brought in down the line to add an extra something, and only then will you have the finished work.

Collaborating songwriters – or their managers and/or publishers – need to have the song split conversation as early as possible, and preferably not a year later when the song is logged with a collecting society and no one can quite remember what was agreed. And once song splits have been decided they should be written down.

There has been a lot of talk about bad music rights data in recent years, and the impact it is having on the effective payment of royalties, especially in the digital domain. One of the reasons for bad data is that confused song split conversations can mean you have contradictory information out there as soon as a new work is created.

Because there is no formal copyright registration in most countries, the databases that record song split information are owned by the publishing sector’s collecting societies, so PRS in the UK. Once a new song is published each co-owner – or their publisher – needs to log both the work and the writer’s respective share with their collecting society; the aim being that each society now representing the song agrees on how ownership is split.

The music data start-up Auddly is specifically aiming to address this particular data issue, by providing collaborating songwriters with a project management and messaging platform that also offers a channel through which song split conversations can take place and, whenever an agreement is reached, what is agreed can be automatically logged with everyone’s collecting societies.

DISPUTES
What happens if co-ownership of a song is not properly agreed, the work becomes a hit, and then there is a dispute over who owns what? Well, it goes to court and a judge decides how to share the copyright and the money. This is an expensive and time-consuming process, and not a desirable option, but it does happen, most often where bands routinely co-write and no proper agreement is ever reached.

Quite how the judge decides what to do depends on the copyright law of each jurisdiction. Some systems start with assumed equal ownership, so the question is who definitely contributed something? In the UK there is no such starting position, each party must argue about their respective contribution, and it is for the judge to decide how to split the copyright, who will often do so based on the importance of each co-writer’s input, rather than going for an equal split or basing any arrangement on relative fame.

Though where there is an agreement in place, usually the judge will enforce that agreement. Unless there is something dubious about the agreement, which is more a matter for contract law than copyright law. An unwritten agreement is going to be harder to enforce, and courts are more willing to meddle if it seems that one side of the deal was inexperienced and badly advised, or strong-armed into the arrangement.

In the ‘I Don’t Like Mondays’ case, Moylett claims that he was unfairly pressured into allowing the song to be published without him being credited as a writer for the good of band relations. Which means the judge will have to first decide whether Moylett’s claims to have co-written the song are credible, and then – if they think that they are – will then need consider what was agreed back in 1979 and why.

With this case there is also the issue of so much time having passed since the song was published. Geldof, who denies Moylett’s version of events, has already hit out at the legal action on this point, arguing it’s not fair to try and revisit events and conversations that occurred so long ago. Cases like this rely on distant memories of key people involved in the hit, some of whom may no longer be alive.

Some legal systems would block Moylett’s litigation on the time delay point. Deadlines for taking action under law are sometimes referred to as statutes of limitation, and some deadlines of this kind do exist in UK law. But what about copyright cases?

Moylett will rely on the precedent set in the high profile Procol Harum case, launched in 2005, in which that band’s organist Matthew Fisher claimed that he co-wrote their most famous record, ‘A Whiter Shade Of Pale’, 38 years after the fact.

That case took a long time to work its way through court, and on appeal Fisher’s claim to a share in the song’s income was rejected specifically on the basis that he had waited too long to act. When the case subsequently reached the House Of Lords, Fisher won, the then highest court of appeal in the UK rejecting the lower court’s concerns around the delay.

This means, in theory, the fact it took so long for Moylett to sue Geldof shouldn’t be an issue in his case, though it could impact on what royalties he receives from the song should he prevail in court, in that judges may not award him a share of the work’s income all the way back to 1979.

Whatever happens in the ‘I Don’t Like Mondays’ case, the ‘Whiter Shade Of Pale’ action and various other disputes over song ownership confirm one simple fact: when songwriters collaborate on a new song, they need to agree who the co-owners are and what the respective splits are, and then write down what is agreed and log the information with all relevant collecting societies.



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