Music Publishing & Songwriting

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:

1. Communicate.
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.

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…

“You’d think that people would have had enough of silly love songs…”

Paul McCartney wrote that– back in 1975. And guess what? Now they have. Okay, sure– there are still some that breakthrough every now and then. But Ne-Yo’s big breakthrough hit last year was “I’m so sick of love songs…” It’s a different world out there.

I know we’re coming up on Valentine’s Day and all. But romance in songwriting is over-rated. If you want a hint to drastically improve your chances for writing a hit song, here’s one:

No More Love Songs.

Have you ever thought about how many hit songs are not about romantic love? From “Who Let The Dogs Out?” to “I Believe I Can Fly”, there are countless classic songs that are not centered on romantic relationships. Despite all that history, I’m always amazed at the number of writers who focus almost exclusively on love and romance as lyrical subject matter.

The rest of the listening audience has noticed this as well. When we hear a song for the first time, the unspoken assumption is that it will have a romantic storyline. By turning instead to an unexpected subject, especially a controversial or provocative one, the writer can instantly add a twist that will make the song stand out. Songs about child abuse (“Luka”), poverty (“Inner City Blues (Make Me Wanna Holler)”), abortion (“Papa Don’t Preach”) or politics (“Sunday Bloody Sunday”) show that pop music can effectively address almost any social issue. Songs about baseball (“Centerfield”), cars (“Little Deuce Coupe”), and fashion (“Chains Hang Low”) work as well. Any subject is a welcome relief from the expectation of another break-up or make-up song.

Now You Try It: Take a finished lyric, or a title idea that has yet to be developed. Leaving the title or catch phrase as it is, can you put a twist on the lyric, by constructing something that isn’t a straightforward love song? Think about the topics that concern you, whether it’s politics or partying. Nothing is off limits. The only thing you can’t do is write one more song about that mean boyfriend and what he did to you– or the mysterious beautiful girl down the hall who doesn’t know you’re alive.

My point is that in a business in which a song must stand out in order to be successful– writing about the same thing as everyone else is not an advantage. A change of subject is always healthy.

Of course, I’m not really advocating a ban on love songs. My wife would kill me. But by varying your topics a bit, you may stumble on a way to address the L word from a different, more interesting angle. And that’s the key.

Have no fear– there will always be a place for a unique, and original love song. As the lyric says, “on this you can rely… the world will always welcome lovers, as time goes by…”. But a little change would do us all good. When it comes to lyric-writing, love is not all you need.

Happy Valentines Day!

Maybe its the Kerouac thing– but writers love to hit the road. In the last week, I sent one songwriter from the Midwest out for a week of collaborating with artists and writers in Stockholm, another from the Midwest went to Nashville to co-write with some of the top Country and Christian music writers (both genres are centered in Nashville), another writer came from Dublin to work with urban writers in Philadelphia and New York, and still another flew in from London to work with some of New York’s best singer/songwriters.

This is part of what publishers do– helping their writers to find new collaborators around the world, and then getting those writers across the globe with the hopes of making magic and creating a hit. Not a bad deal for the writers, who get to see new places (albeit usually they only see the inside of a recording studio), meet new people, and even write a song or two in the bargain. Not such a fun thing for the publisher. We tear our hair out making the arrangements, deal with last-minute cancellations, hope we picked out the right collaborators, foot the bill, and then cross our fingers for one or two songs that make the whole effort worthwhile.

So what does make it work? What are the keys to creating a successful writing trip? Here’s some tips from a writer turned publisher. Just wish I knew then what I know now.

1. When In Rome…
Learn how writers and publishers work in different places, and adapt to it. In Nashville, everyone treats their calendar like it’s writ in stone, and people schedule 3-4 weeks ahead. In New York, no one knows what they’re doing until a week before. In London, writers like to spend a couple of days together in order to write a song. In Sweden, it takes about three hours. In NY, you work all night. In Nashville, you start at 10am.

We all have our ways we like to work. But the point of a writing trip is to try something new. So don’t cling to the old. Learn the local customs.

2. Don’t book. Overbook.
As a publisher, the one thing I learned quickly that has proven constantly true is that when planning writer trips, you can always expect the worst. Someone will get sick. Someone’s studio will break down. Someone will suddenly be approached to collaborate with a budding superstar, and you will be dropped from that very carefully arranged calendar in an instant.

When I book writing trips, I like to try to schedule two writing sessions a day– one in the day, and one in the evening. That way, if someone cancels, the day is not lost. Of course, if no one cancels, then the writer is doing daily doubles for a week, which can be pretty grueling. But that’s why they call it a job.

3. Never Arrive Empty-Handed.
Come with some ideas in your head. If you primarily write tracks, then bring some new tracks with you. If you’re a lyricist, come armed with some title and concept ideas. If you write melodies, have a few tunes in your head, in case no one knows where to start. Those first few minutes of a writing session, once the hellos and airport stories are done, can be excruciating. You always feel better if you’ve got a few ideas to break the ice. Even if you don’t wind up using any of them, you’ll be more relaxed with a few ideas up your sleeve.

4. Don’t Slight The Nightlife.
I know– after two writing sessions a day, who is going to want to go out at night? But if there’s an opportunity to go hear some music, meet other songwriters, hear the hot local band, or just go support an artist that you’ve been working with, take advantage of the opportunity to make the scene. Part of the value of writing trips is the chance to establish yourself in a new musical community. You need to take any opportunity to meet other musicians and writers while you’re in town.

The best writing trip I ever saw involved Stargate, now one of the hottest production teams in the industry, with hits like “Irreplaceable” for Beyonce and “So Sick” for Ne-Yo. When they arrived in NY, they were a well-established production team in the UK and Scandinavia, but almost unknown in the US. By the time they left a month later, they had written some of the biggest hits of the year. Much of the credit goes to their managers, Tim Blacksmith and Danny Poku, who not only set up the calendar, but also spent their day doing A&R meetings, while the guys worked in the studio. Much of the credit also goes to Stargate, whose strong work ethic had them turning out a song or two each day– for a month.

And of course, alot of credit goes to Luck. Stargate met Ne-Yo by chance at the studio– that impromptu meeting led to “So Sick”. But that’s the point of a writing trip. You put yourself in the right place, at the right time, with the right people. And then you write. And write. And write some more.