Music Law 101: Who owns the copyright in a song?
Who owns the song after your band has recorded it? This simple question doesn’t always have an easy answer. What was the number of people involved in the writing process? Did other people participate in the recording? Was a producer hired? Did you employ other background singers or musicians to help in the studio? Are you using “work made available for hire” agreements to deal with people involved in the project? Are you a member of a band? These questions will help you determine who owns the copyrights to any song.
The copyright to the original song or sound recording is generally owned by the person who wrote or recorded it. If only one person were involved in the recording and writing the song, that person would own the copyrights.
It is much more common for more than one person to contribute to the recording and writing process. Co-authors share the copyright for a song or recording. Without a written agreement, co-authors of a song own equal and undiluted rights in copyrights. For example, two co-authors own 50% each, and three own 33.3% each, etc. Even if one author wrote 90% of the song while the other wrote 10%, each co-author owns 50% if they do not agree in writing.
The definition of author or co-author depends on how the individual had “control” over the creation process. This means that the person responsible for the creation was also considered an author. If there is more than one copyright creator, the creators will be co-authors or joint owners if they intend to combine their contributions into one whole. Copyright law clarifies that individuals who record or write music together are coowners.
If joint owners do not have a written agreement, each co-owner can grant a nonexclusive license to third parties without their consent. Non-exclusive licenses allow others to use the work or exploit it simultaneously as the third party. A coowner who attempts to transfer exclusive rights to another person’s work becomes an exclusive license. Coowners of copyrights cannot sue one another for infringement. A joint owner of a copyright cannot sue a coowner for infringement. However, a coowner can file a claim against the other coowner to get an accounting of any profits made by the coowner through the joint work.
If the author is an employee or another under a “work for hire” agreement with the principal, the employer/hiring party will own the song and the copyright.
Someone does not need to be employed to determine whether a song has been “worked for hire”. “Employment” is determined by the extent to which the “employer has control over the creation and execution of the work. This means that the employer has access to the location where the work is done and can provide equipment or other means for creating it. The employer also has control over the employee’s work schedule, the right to assign the employee to other tasks, etc. A closer relationship to regular, salaried employment means that it is more likely that work created within the scope of that employment will become a “work made available for hire.” This could be an arrangement for music written by a salaried arranger for the company or a recording by salaried engineers for a record company.
A work that isn’t an “employment” relationship can still be considered work made for hire if the parties sign an agreement that specifically states that it is work made for hire. However, copyright law only allows certain types of works to qualify as “work made available for hire”. Particularly, Congress didn’t include sound recordings within the specific categories. Therefore, a sound record alone cannot be considered a “work made to hire” without an “employment” relationship.
Music contracts typically include “work made to hire” language and alternate copyright assignment language. There can be uncertainty about whether a work was created on a “work for hire” basis. In a Music Law 101 post, we will talk about copyright assignments and transfer.
Copyright ownership can become complicated when more than one person is involved in creating and recording a song. One option is to have the individuals be joint owners with equal undivided rights or work-for-hire ownership. It is good to work with co-creators to clarify ownership intentions and agree on them.