Photo by Kuba Okan. Left to right: Savannah Ré and RALPH, co-writing a song at a SOCAN Song Camp in 2018 / De gauche à droite : Savannah Ré et RALPH, en pleine création d'une chanson au camp d'écriture de la SOCAN en 2018

Sound Advice: Legal considerations when co-writing a song

Story by Matt Gorman | Thursday September 2nd, 2021

Please note that:
(i) the views expressed are those of the author and not of SOCAN;
(ii) it is not legal advice; and
(iii) you should consult with a lawyer before entering into one of these arrangements.

Two or more songwriters sit down… armed with guitars and a notepad… intending to change the world with a great song (or at least make some money).

Whether you co-write with your co-writer(s) in your living room, spontaneously in the studio, during a song camp, or via Zoom, you need to consider all the ”legal stuff.” What constitutes “songwriting”? What rights do songwriters have? Can a co-writer record the song, or sign a synchronization license, without the consent of the other co-writers? How do co-writers “split” songs? What are the benefits of signing a co-writer agreement?

This area of the law in Canada is often misunderstood, and songwriter disputes are, in my experience, quite common. As such, I want to take the opportunity to break down some key legal points when it comes to co-writing songs.

What is a “Work of Joint Authorship”?

Under the Canadian Copyright Act, a “work of joint authorship” means a work (i.e., a song) “produced by the collaboration of two or more authors, in which the contribution of one author is not distinct from the contribution of the other author, or authors.” In other words, if you write a song with a co-writer, unless you sign an agreement to the contrary, the co-writers will own the entire song jointly (the lyrics and melody will not be distinct parts, for example, unless agreed otherwise).

A frequently used analogy is that co-writing a song is like cracking an egg and watching the egg white (lyrics) and yoke (melody) mix together in an irreversible way. Subject to an agreement to the contrary, the co-writers do not, for example, own the egg white and yoke separately – they each jointly own 50 percent of the entire pan of scrambled eggs.

If you co-write a song, provided you don’t assign your interest in the song to a third party (a music publisher, for example), your interest in the song will pass to your estate upon death. Remember, copyright in a song lasts for the life of the author  plus 50 years. As such, you and the beneficiaries of your estate could enjoy songwriting royalties for many years.

What Constitutes Co-Writing?

This question is more complicated than you would think (sorry).

A “joint author” of a song needs to establish that they made some significant original expression to the song, keeping in mind that the contribution need not be equal to that of the other co-writer(s). The conventional Canadian legal test for joint authorship also requires that there must be “joint labour in carrying out a common design.” One court case involving a dispute over Sarah McLachlan songs held that, in addition to the above, each songwriter needs to intend the other co-author to be a joint author.

However, not all Canadian courts have adopted the “common intention” test. The federal court of Canada, for example, rejected the common intention test that co-authors be joint authors. In one case, the court found that the Sarah McLachlan decision followed American law, which imposes a requirement that collaborators also intend to regard each other as joint authors (this requirement is actually baked into American copyright legislation, but not into Canadian copyright legislation).

Therefore, any significant original expression made to a song, such as lyrics, melody, memorable guitar riffs, cord progression in the chorus, etc., could constitute “songwriting,” and attract co-authorship status, if such contributions to the song are deemed to be “significant original expression” and are carried out in furtherance of a common design to create the work. Whether each co-writer also needs to intend the other to be a co-writer is, in Canada, an open legal question. Every case will be decided based on its unique facts.

However, it’s fair to say that minor suggestions like, “Hey girl, you should put a capo on the first fret of the guitar,” probably won’t attract co-authorship status. Signing a co-writer agreement with your co-writer(s) is always recommended, to clarify, among other things, co-authorship splits, and avoid disagreements down the road as to what constitutes “songwriting”.

What Rights Do Co-Writers Have?

Again, this question is more complicated than you would think…

In Canada, the law suggests that composers of joint works can’t exercise their rights independently of each other. This is significant, as it means that one co-writer, for example, couldn’t grant a synchronization license, commercially exploit the song on a recording, or approve any other kind of use of the song without the consent/approval of all co-writers. In the U.S., however, the case law seems to suggest that a co-writer can grant a non-exclusive license for the use of the song by a third party without the consent of the remaining co-writers, as long as the co-writer exploiting the song ensures that they pay royalties/fees to the other co-writer(s).

Because the law in Canada isn’t crystal clear on this issue at the time of writing this article, a co-writer agreement is recommended to confirm the rights of each party. For example, one co-writer may want the right to administer, or sign licensing agreements, on behalf of the other co-writers – which that co-writer normally couldn’t do, without an agreement among all the co-writers.

How Do Co-Writers Split Songs?

There are lots of different ways to do this. To clarify,  – when I refer to “split”, I’m referring to the co-writers’ copyright ownership split of the song, and their corresponding share of publishing revenue flowing from such ownership. (This is different than copyright in the sound recording.).

For example, if two songwriters co-write and agree that the “split” will be 50/50, this means that each co-author owns 50 percent of the copyright to the composition, and each will each receive 50 percent of all publishing revenue flowing from the exploitation of that song ( such as public performance royalties, mechanical royalties, synchronization fees, etc.). That, of course, is subject to either or both co-writers having a deal with a music publisher.

With respect to how to split songs among co-writers, there are no hard and fast rules. For example, a common approach in the industry is that lyricists are given 50 percent and creators of music/melody are given 50 percent, but this isn’t always the case, and is sometimes, practically, difficult to divide so cleanly. In a four-piece rock band scenario, for example, the band might decide that all four members split songs equally, or alternatively might decide that the “core”  one or two band member songwriters split compositions/publishing among only those core members. In a scenario where a hip-hop producer is involved in producing a track, depending on the deal, she may take “publishing”/a co-writing share as producer, particularly if she created the “beat”/underlying rhythm section of the song, which is often a substantial contribution to a hip-hop track.

The Co-Writer Agreement

As you can see, this is an annoyingly complicated area of the law, and the answers to questions like “who owns what” and “who has the right to do what” aren’t always clear, unless a written agreement is signed among co-writers. A co-writer agreement might confirm things like:

  • The composition ownership (and corresponding revenue split) among co-writers.
  • Whether any one co-writer will have the administration right to sign licenses on behalf of the other co-writers. If not, and if there are multiple co-writers, a synch deal, for example, would require the signature of all co-writers. This could be problematic if it takes time to obtain the signatures of the other co-writers, who either may not agree with the placement of the song, or may unintentionally hold up the process and risk killing the deal.
  • Whether all co-writers are entitled to perform and/or record the song, or whether that right will be reserved for a particular artist/co-writer.
  • Whether one co-writer can use the name/likeness of other co-writers for promotional and marketing purposes.
  • Whether one co-writer has the right to make alterations to the song, such as to the melody, lyrics, song structure, etc.
  • Confirmation that all contributions made by co-writers are original, and don’t infringe upon the rights of any other party.

This is a non-exhaustive list of things you may want to confirm in a co-writer agreement. Because the law isn’t crystal clear in this area, and given the possibility of future disputes if things aren’t clarified (particularly if big money is on the line), co-writer agreements are recommended to ensure that everyone is on the same page.

Conclusion

Co-writing is an incredibly common part of the music industry. Whether you’re a solo folk/pop artist, rock band, or hip-hop artist working with multiple producers, you’ll likely find yourself in a situation in which you’re co-writing songs over the course of your career. As such, make sure you know your rights, and set yourself up for a successful (and hopefully lucrative) songwriting career.

Matt Gorman is a lawyer based in Halifax, and owner/operator of the music law firm Ocean Town Music. Please reach out to Matt with any questions: matt@oceantownmusic.ca

Copyright © 2021 Ocean Town Music

Avoid tax season blunders: Ensure your SOCAN tax info is accurate before Dec 1st

Story by SOCAN | Thursday November 4th, 2021

Each year, SOCAN issues tax slips to its members, whether T5 (for Canadian residents), Relevé 3 (for Québec residents), or NR4 (for non-residents of Canada). The tax slips for 2021 will be issued to members, and remitted to the appropriate tax authorities, by Feb. 28, 2022.

It’s important that you let us know about any life changes that have taken place over the past year. Did you change your name, create a business, or decide to re-locate? Keep in mind it’s the member’s responsibility to ensure that their tax information is accurate and up-to-date In SOCAN’s database.

If you’re a SOCAN member, and there are changes in your life or company that affect your tax status, please contact member services to ensure that those changes are accurately reflected, going forward.

If a payment has been received in error, these amounts will be reported on your 2021 tax slip, unless the earnings in error are returned to SOCAN before Dec. 1, 2021. In this case, please contact Member Services, at members@socan.com, or 1-866-307-6226.

The Canada Revenue Agency (CRA) and Revenu Québec (RQ) maintain strict rules decreeing that tax slips cannot be re-issued, and as such, SOCAN is unable to re-issue them. Any changes that will impact your tax slip must be completed before Dec. 1, 2021, in order to have them accurately reflected in your 2021 SOCAN tax slips.

So please let us know if things have changed, to avoid any tax season blunders!

Composers’ and Writers’ Share Royalties

Story by SCGC / SOCAN | Monday July 19th, 2021

Screen composers are a vital part of SOCAN’s membership. Approximately half of the company’s annual collections are from audio-visual works, and screen composers among the most passionate, productive, and engaged music creators in the SOCAN family.

Unfortunately, screen composers are also under siege.

Faced with almost daily threats and challenges to their livelihoods, whether one-time, take-it-or-leave-it “buyouts,” reduced opportunities, or even the reality of artificial intelligence automation, it’s hard out there for a screen composer.

SOCAN will never get in the way of our members working to make a living. We’re here to help, and one of the ways we assist our members is by providing them with the information they need to make the decisions that are right for them.

Information and knowledge are your most powerful resources.

Q: What is the SOCAN 50/50 Distribution Rule?
A: The SOCAN 50/50 Distribution Rule states that a minimum of 50 percent of the total share, or shares, of any registered composition must be allocated to the writer(s) of that composition. Put differently, a maximum of 50 percent of the total shares of any registered composition may be allocated to a publisher(s). This rule is a pillar of the organization. Any practice that breaches the 50/50 Rule is contrary to SOCAN’s policies.

Q: What would happen if a member broke the 50/50 Rule?
A: Every SOCAN member signs a Membership Agreement that requires them to act in accordance with the interests of SOCAN, and maintaining the 50/50 Rule is one of those interests. SOCAN trusts and relies on its members to provide accurate work registrations. Filing inaccurate work registrations risks a member’s good standing with SOCAN.

Q: If an audio-visual production company, its agent, or a third party demands that the producer, agent, or third party must have a portion of the writer’s royalty share, even though they’re not an author of the work, is that allowed?
A: When a music creator becomes a SOCAN member, they agree to the 50/50 Rule. A minimum of 50 percent of the total share or shares of any registered composition must be allocated to the composition’s writers. A non-writer demanding a portion of the actual composer’s 50 percent share would break this rule. Composers put in such a situation can push back against these potentially exploitative agreements, based on their member agreements with SOCAN and the 50/50 Rule.

Q: What can I do as a member if I see conflicting work registrations?
A: SOCAN members should monitor their royalty statements to ensure correct share allocation. If any share allocations or participants are incorrect, SOCAN has a policy for dealing with the dispute. The participants are encouraged to resolve the dispute themselves and arrive at an agreement on the correct share participants and/or allocation of shares. SOCAN must be notified by the participants of the outcome of their resolution to make any changes to the registration at issue. If participants are unable to come to an agreement, SOCAN will only hold the disputed shares of royalties from distribution if a legal proceeding is commenced.

Q: Where does SOCAN stand on the subject of “buyouts”?
A: When a writer becomes a member of SOCAN, they assign their performing rights to SOCAN for all works that may be created by them. A “buyout” of performing rights therefore contravenes a member’s agreement with SOCAN. SOCAN is always on the side of what’s best for a member to advance their career and livelihood as a creator and/or music publisher. Only they can decide. But so-called “buyouts” – for example, when a screen production company pays a composer a one-time flat fee for their work – are detrimental to the health of collective rights management societies and their members. Healthy collective rights management pays long-term dividends to music creators who rely on fair royalties for the use of their work. Having instant cash-in-hand can be alluring in the short term. However, in the long term, by ceding your rights to future royalties, you may be short-changing your future, particularly if composing is your chosen career.

Q: Is it legal for a production company, its agent, or a third party to buy out the performing rights in my work and then register it under its own names?
A: SOCAN members must be either a music creator, a music publisher, or a visual artist. Any person or organization that portrays themselves disingenuously will be refused or dismissed as a member. This is a condition of membership for all music rights organizations that are members of CISAC, the global confederation representing 231 authors societies in 121 countries and territories. Please refer to previous question and answer; accepting a buyout of performing rights means a contravention of a member’s agreement with SOCAN.

Q: I could really use the lump sum payment now, but am conscious of giving away future earnings for my work. What should I do?
A: Only you can decide what’s best for you and your career. Being informed will help you to decide. But what you don’t know can change the game for you and your future. Whether you write music for streaming services, television, film, or videogames, there are many opportunities to make money beyond a one-time initial composing or package fee. “Back-end royalties” are generated over many years, wherever and whenever your music is used. This includes airings on broadcast, cable, traditional and satellite radio plays, and streaming service performances. You can also receive royalties from consumer products, including interactive dolls and toys, electronic and physical greeting cards, holograms, stage shows, soundtrack album sales, advertising commercials – even online musical instrument lessons.

Q: Why do screen production companies seek one-time composing or package buyouts?
A: Just like you, they’re trying to gain revenue. Production companies understand that a one one-time flat-fee acquisition of your work and your rights is good business for them. We can assume that, through their research into the monetary value of your work, they’ve concluded that it’s advantageous to remove the original rights holder, the composer, from the picture. Once again, only you as a music creator can determine what’s best for your short-term and long-term gains.

Q: What more can I do?
A: If you’re not already a member, joining the the Screen Composers Guild of Canada (SCGC) or La Société professionnelle des auteurs et des compositeurs du Québec (SPACQ) adds to the solidarity of Canada’s vibrant music composer community. Like SOCAN, these member-based organizations advocate every day for your rights. As a member, you receive numerous benefits, while standing shoulder-to-shoulder with your fellow composers.

Further information:

 SCGC (the Screen Composers Guild of Canada) – The member-based non-profit that promotes the music, status, and rights of film, television, and media composers in Canada.

SPACQ (La Société professionnelle des auteurs et des compositeurs du Québec) – The member-based society created to defend the moral, professional, and economic interests of authors and composers in Québec.

Your Music Your Future – An extensive information resource for the global audience of composers.

Defining Buyouts – An important resource from the Screen Composers Guild of Canada.

Ivors Academy – The U.K.’s independent professional association for music creators, which recently unveiled its Composers Against Buyouts Campaign.