Songwriting

Songwriting is the process of writing the lyrics, as well as the music composition or melody to songs.  The person who writes the lyrics is a lyricist and the one who writes the music is the composer.  Songwriting requires a lot of time, patience and discipline.  Some universities supplement the old apprenticeship approach to learning how to write songs by showing how the metaphorical and rhythmical structures of language are combined with music, in history, theory, and practice.  To make a career in songwriting, one must have knowledge of modern music technology and business skills.  Certain Universities offer songwriting diplomas and degrees with music business modules.

While entering into a songwriting agreement with a music publisher, it may be wise to consult a lawyer depending on the amount of financial, time, and other commitments involved, about a number of issues.  The process of songwriting for a music publisher includes the nature of business, tape shopping, copyright matters, trade name registration, or even general advice about how the industry works and the legal decisions and choices that will confront an aspiring songwriter.  A song writing agreement can be a fifty page publishing contract, a one page letter agreement, or a simple oral promise, sealed with a handshake.  An attorney can play an active role in negotiating and drafting the terms of agreement to the songwriter’s benefit.

Legally, songs may only be copied or performed publicly by permission of the authors.  The legal power to grant these permissions may be bought, sold or otherwise transferred.  These rights are governed by copyright law.  Songwriting and publishing royalties can be a substantial source of income, particularly if a song becomes a hit record.  When a song is written, a property is created that can be exploited, by the writer or others, for profit.  Therefore, the rights to that property are subjects of legal maneuvering.  Whether a song is written alone, in collaboration with another writer, or as someone else’s employee, legal rights in the song are at risk.

United States copyright laws elaborate by granting copyright owners exclusive right to reproduce the copyrighted work in copies or phonorecords, prepare derivative works based on the copyrighted work, and distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending, and Perform or display the copyrighted work publicly.  However, these rights are subject to various limitations.  Generally, the songwriter is the author.  If two or more people collaborate in the writing, the law presumes that all the writers contributed equally, and therefore own the song and its copyright equally.  The ownership percentages can be well defined between co-writers.

The Copyright Act of 1976 provides that the copyright for songs created on or after January 1, 1978 lasts until the death of the songwriter, plus seventy years.  Thereafter, the work falls into public domain, with no copyright protection.  If the song was written by more than one collaborator, the term of copyright would be the life of the last surviving writer, plus seventy years.  In the case of songs “made for hire”, the employer, not the songwriter, is presumed to be the author.  The copyright life of a work for hire lasts the lesser of 95 years from the date of publication, or 120 years from the date of creation.  Characterization of a work as “made for hire” also determines the owner’s renewal and termination rights.  The copyright duration for songs written after January 1, 1978, is generally the life of the songwriter plus 70 years.

Copyright protection exists for original works of authorship as soon as they become fixed in a tangible form of expression.  An original song recorded on tape qualifies for copyright protection automatically.  Registration with the government is not mandatory.  The musical notations, transcriptions and a recording of the song mailed under a certificate to the songwriter with a return receipt stand as proof of the song’s copyright.  However, registration of a song with the United States Copyright Office establishes a public record of the songwriter’s copyright claim giving access to federal courts for infringement actions.  It shifts the burden of proof regarding the validity of copyright to the other side enabling the judge to award statutory damages, and recover author’s attorney’s fees if the infringement suit is successful.

A songwriter may terminate the transfer of copyright after 35 years with or without the publisher’s permission.  At that point, copyright ownership reverts back to the songwriter, who may keep it, or sell it to another publisher (even the original publisher), for the remainder of the copyright term after which the song or songs will become public domain.  A copyright assignment can be terminated by the songwriter through a notice to the publisher.  Such termination notice should state the specific date of termination which may be anytime within 35 to 40 years after the original transfer, and must be sent between 2 and 10 years prior to the intended date of termination.  The songwriter must also file a copy of the notice in the Copyright Office before the date of termination.

There is no “standard” song contract.  Usually, in a songwriter’s contract, 100% of the copyright is conveyed to a publisher.  In a co-publishing agreement, some lesser amount of the copyright is conveyed to a publisher, typically 50%.  The ultimate intention of a songwriter is to find users for the songs, issue licenses to those users, and to collect the resulting revenue.  The less copyright that a songwriter transfers away, the more of what is normally known as the “publisher’s share” of income will come back in addition to the amounts the contract sets aside as the writer’s share.  The term of contracts are usually set as one year.  However, the publisher may have two to four additional one year options to renew and extend the contracts.  The songwriter may have signed only a one year contract that applies to songs written over a one year period, but which transfers those songs to the publisher for the duration of copyright.  The author can regain his/her authorship by reversion.  Reversion might take place at the end of the term of contract, a certain number of years after the end of the term, or in the event the publisher is unable to obtain a major label recording of the song within a certain time frame.


Inside Songwriting