If there’s one lesson that can be learned from the music industry’s past decade of delusion and disaster in the digital revolution, it’s that things in the real world often change much faster than the laws that govern them. Whether it’s sampling, or file sharing, or mash-ups, or social networking, the music business seems to keep finding itself facing issues that simply were not anticipated, or are not covered by the current legal structure of copyright law. Suddenly, one finds him or she playing in a game in which the old rules no longer apply, but there are no new ones to take their place. That spells anarchy– and that’s a dangerous place to be.
Here’s the latest example of that new game/old rules conundrum, which is impacting songwriters, producers and publishers everyday– even if most of them don’t know it yet. This one is so pervasive, and so complex that we’ll need two blogs to deal with it. Consider this blog the warning shot– to tell you what the problem is, and how it can put you at risk. In Part 2, we’ll talk about what you might want to do to try to protect yourself in what is essentially a land without laws. And it all starts with a simple question:
“You wanna write to my track?”
Sound familiar? In a sense, this simple, innocent question is the entry point to an entire quagmire of problems, in part because it describes a “new” way of songwriting that was never really anticipated in copyright law. In the past, most songwriting partnerships were collaborations between “composers” (who wrote the chord progression and most importantly, THE MELODY) and “lyricists” who wrote the words or lyrics to the composed melody. This relationship describes everyone from
Lorenzo Hart and Richard Rodgers
to Sondheim and Bernstein, from Hal David and Burt Bacharach to Elton John and Bernie Taupin. One writes the lyric, the other the melody, and together they make a song.
The key here is to understand that according to copyright law, a song is made up of MELODY and LYRIC. There is nothing in copyright law that expressly makes the chord progression, the drumbeat, the rhythmic feel, or the actual “sounds” of the instruments part of the “song”. Those are arranging elements that could potentially be made into a copyright-protected “arrangement”, but legally speaking, they are not technically part of the song. Except for one thing…
In the real world of the music business in 2009, those “arranging” elements are indeed an indisputably integral part of the song. In fact, the most common method of songwriting collaboration in today’s world, particularly in urban, pop and dance genres, is between a “track” writer (usually also a producer) who creates a “musical bed” made up of a drum program, a chord progression and a full arrangement of instruments (picture a fully produced master recording of the song minus the lead vocal line), and a “top line” writer, who creates the LYRIC and MELODY. Whether it’s Stargate and Ne-Yo,
Justin Timberlake and Timbaland
or Redone and Lady Gaga, most contemporary collaborations are between track and top line writers. Although there are numerous exceptions, most such collaborations are considered to be 50/50 splits– with the track writer taking 50% of the song, and the top line writer taking 50%.
Perhaps you’ve already begun to see the problem. Given the rhythmic nature of most contemporary pop music and the importance of the drum programming and the production values of the track, there’s really nothing unfair about the “track” writer getting half of the ownership of the copyright. It is certainly reflective of the importance of those production and arranging elements in today’s market. The problem is this: it simply doesn’t correspond to anything in actual copyright law. If you’re playing strictly by the rules (which almost nobody does), the top liner who wrote the MELODY and the LYRIC is the sole composer of the song. The producer is simply an arranger, with no actual ownership of the copyright. But that’s only the beginning of the problems. Here’s the real challenge with that familiar “Do you wanna write to my track?” question…
You’re probably not the only one hearing it. In the day-to-day business of music publishing, A&R and songwriting, it’s generally understood that many track writers are not simply sending their track out to one specific writer to create a song. In fact, many track writers may send the same track to five, ten, even fifty or sixty different top line writers– with the hopes of finding that one unique, stand-out melody and lyric that makes the track into a hit record. A&R people do the same thing, often sending out a track that they’re considering for a project to several of their favorite “top line” writers. The smash international dance hit “Lola’s Theme” by Shapeshifters was a classic example, with the track (which itself was based on a sample of an old Johnnie Taylor song, “What About My Love”) going out to virtually every top line writer in the UK and America. The “winning” top line was written by Karen Poole, one of the UK’s top melody and lyric writers. Simple enough then– the song “Lola’s Theme” was then considered collaboration between the track writers (including the writer of the original Johnny Taylor song) and Karen Poole, which is indeed how the song was registered. But consider an alternate view:
Each time a “top line” writer composed a melody and lyric to the Shapeshifters track, a new song (and therefore a new copyright) was created. This means that there may have been fifty different copyrights, all containing the music from the Shapeshifters track and each with a different melody and lyric. In each of those fifty copyrights, the top line writer owns fifty percent of the song. BUT LISTEN NOW: the top line writer owns fifty percent of the WHOLE song. Not just the lyric. The top line writer owns fifty percent of the lyric, the melody, and every other musical element of the song. Copyright law does not provide for the owners of a copyright to divide up the copyright like a pie, with each owning his or her separate piece. Once a song is created, all of the owners of the copyright own a piece of the whole thing– not just the part that they contributed. There is no provision for taking a lyric away, and then subtracting out the lyricists’ portion of the song.
This means that a song like “Lola’s Theme” by Shapeshifters
could have as many as fifty different owners, each claiming fifty percent of the song– even though not a word of their lyric is actually used in the version that was recorded and released. After all, if a song is translated into another language, the ownership remains with the original writers, even though the original lyric is nowhere to be found. Therefore, if a top liner writes to a track, theoretically he or she is now a co-owner not only of his or her lyric, but also of the track– and continues to be an owner no matter how that track or lyric may be altered, or even if the melody and lyric are discarded altogether.
The fact that no one made a claim to “Lola’s Theme”, or to any of the other thousands of songs that have been written in the same way, simply reflects a hesitancy to break with “how things are done” in the everyday business of music. But legally, there is almost certainly a claim to be made in most of these kinds of collaborations. If you are a track writer sending out the same track to dozens of different writers, you could suddenly find yourself with dozens of claims to ownership of that track. If you’re a top line writer, you probably don’t have the freedom to simply take your lyric idea back from a track that never sold and put it on a new track. You’re playing a new game, but the old rules still apply if you wind up in court. And as the owners of Napster, YouTube, Pirate Bay, Yahoo, etc. will tell you– sooner or later, you probably will wind up in court.
So what can producers and top liners do to protect themselves and their work? What can publishers do to avoid finding out that their hit copyright has fifty different owners, each of whom claims half the song? Stay tuned till next week, for some lessons in self-defense…