Alright—-I know I’ve kept you all hanging on a cliff all week. When last we left off, all of the “track writers” among us had just been hit with the newfound knowledge that by sending out their tracks to every lyric and melody writer with whom they’ve traded business cards, they may have unwittingly given away 50% of the final song to a dozen different writers. Lyric and melody writers or “top liners” were shocked to find out that they might not be the only ones writing to that track they received from their MySpace friend. They were also rather dismayed to know that their brilliant lyric idea was no longer their own, but now belonged to the track writer as well. Tension ensued. Nervous glances between once friendly writing partners were exchanged. Lawyers were consulted. What do we do now?
In case you missed it, the most recent blog addressed the issues involved in what is the now familiar method of co-writing between “track” writers, who compose an instrumental “track”, and “top line” writers, who usually write the melody and lyric of the song. This style of collaboration has become the most common approach to songwriting, particularly in the pop, dance and urban worlds– whether it’s Lady Gaga and RedOne, Justin Timberlake and Timbaland, or Ne-Yo and Stargate. The difficulty is that track writers are frequently sending their instrumental tracks out to several different top line writers (often without the knowledge of the top liners), and essentially auditioning the various writers, to see who comes back with the most commercial melody and lyric. At the same time, many melody and lyric writers are laboring under the idea that if for some reason their melody and lyric isn’t the grand prize winner over this particular track, they can simply take back that lyric and put it over a different, and hopefully, more successful track somewhere down the line.
First, let me say, despite my advanced years and traditional mindset, I do “get it”. In the early years of my songwriting career, I was primarily a composer, and “track” writer/producer. In the later years of my songwriting stint, I shifted roles and became primarily a top line writer. So I do actually know the realities at play here.
First, let it be said that there is nothing more difficult than writing a hit melody and lyric. Most track writers can deliver consistently at a B-level, and can probably nail an A-level track at least 20 or 30% of the time. The success rate for even the best lyric writers is far lower– it’s probably one in twenty ideas that really have “hit” potential. Therefore, it’s not surprising that most track writers like to have at least a couple of different writers take alternate approaches to any one track. Who wants to burn a good, commercial track just because one writer came up with a mediocre melody and lyric? Like I said, I get it.
In the same way, why would a top line writer, upon finding out that the song they’ve written is only one of fifty that share the same musical composition (and that their lyric is not the “chosen” one for that track) not take back at least a few of the best melodic and lyric ideas, and put them into a different song that might actually see the light of day? After all, great hooks or lyric concepts don’t come along every day. It all makes perfect sense.
Except that this is not the way that copyrights work. Copyright law, which is the law that defines ownership of songs, stipulates that once a copyright is created, each one of the creator’s shares in the full copyright. This means that once a new song is created, the track writer owns 50% of the lyric, in the same way that the lyric writer owns 50% of the track. No writer owns just the part that he or she wrote. They own a share in the total, complete song. You can’t remove one lyric writer from a song and substitute another, any more than you can take one lyric idea and separate it out from the track that lies underneath it. It’s all one thing.
So what do you do? How can a track writer find the best melody or lyric for his or her track, without giving ten different writers a 50% share of the same song (shades of “The Producers”)? How can top line writers avoid finding all their best work wasted on songs, which don’t even wind up using a note or a word of their writing? This is a very complex question, in an area where the lawyers, so far, have feared to tread. But here are three quick suggestions for protecting yourself as best you can, at least until this legal grey area is finally clarified:
Believe it or not, there are a few areas in the music business where honesty really is the best policy. This is one of those. If you are sending out tracks to several different top line writers, simply let them know that. A few may be offended. A few might refuse to write to the track if others are already working on it. But those are exactly the misunderstandings and bruised egos that you’re looking to avoid. Better to spot them sooner, rather than later.Likewise, if you’ve decided that the lyric and melody you’ve written is being wasted on a track that’s going nowhere, a simple phone call may be enough to gain permission to take that lyric back, and put it over a more viable composition. Don’t let track writers hear for the first time the hook they thought was theirs, at the moment when it comes on the radio. That makes co-writers angry, it makes publishers angry, it makes other artists (who may have thought they were cutting the song) angry. That much anger can’t be good. Simple, clear communication can save a lot of headaches. 2. Clarify
It never hurts to have things in writing. Send a simple email or letter with your track that explains very frankly:
(a) This track is solely created by “Hot Track Writer” and no ownership in this track is being offered to the “Top line Writer” simply as a result of composing a melody or lyric to the track. Likewise, no ownership in the melody and lyric written by “Top line Writer” is claimed by “Hot Track Writer”.
(b) This track may be submitted to multiple writers, in an effort to solicit different melody and lyric ideas. None of these melody and lyric ideas, or the demo recordings that embody these melody and lyric ideas in combination with the track will, in and of themselves, constitute a new composition.
(c) Only upon the mutual agreement of “Hot Track Writer” and “Top line Writer” will the combination of this track and “Top line Writer’s” melody and lyric actually constitute a new composition. Should the existence of such a new composition be agreed upon by both parties, ownership of the new song will be shared equally between the two parties.
(d) Should one or both parties decline to create a new composition from their joint efforts, this track will remain solely owned and controlled by “Hot Track Writer”. Similarly, all melodic and lyric ideas will remain in the ownership of “Top line Writer”. Neither party shall have any claim on the work of the other.
You can attach a brief outline like that to an email, along with an mp3, or in an actual letter. But at least everyone knows what they’re getting into. 3. Keep things separate, but equal.
If you really want to play it safe, you could actually register your “tracks” or your “top line” as a separate composition with ASCAP, BMI, SESAC, HFA or the Copyright Office. At that point, you could take the position that whatever track you decide to put your lyric over is a “derivative” composition of your original lyric– which means you own the lyric in its entirety, and you own 50% of the new song that was derived from the original composition. In the same way, a track writer could claim that the track was a separate composition, which he or she owned 100%– any song created with a lyric over the top of that instrumental track would be deemed a derivative composition. This method is probably the most thorough approach to the issue, however it generates a great deal of paperwork and is unlikely to be a favorite approach of most publishers (or most licensing organizations). Does ASCAP really want to register a track and a derivative composition for every different song? Does your publisher find that registration process to be a worthwhile investment of time? In the real world, it’s highly costly to treat every song as three different copyrights– the original track, the original lyric, and the combination of the two. Multiply that by every song submitted to ASCAP, BMI, SESAC or HFA and you start to get some idea of the scope of the problem.
Needless to say, our efforts in this blog have been to shine some light on what is a dark secret, and a grey legal area, in the music business. There are no clear-cut standards here– only “customary ways of doing business”. What I can tell you is that silence is not golden (lack of communication leads to problems in this area), “don’t ask, don’t tell” will inevitably result in “don’t own what you thought you owned”, and playing a new game without understanding the old rules that still apply is a very dangerous venture. If you ask someone, or someone asks you, “do you wanna write to my track?”, it’s not just collaboration that’s being discussed. It’s co-ownership of a copyright, and that’s a much more serious thing. Keep an eye out for this one– this subject is going to wind up in the news in a big way, sooner or later. It’s a legal quagmire just waiting for someone to step in it. Don’t say I didn’t warn you.