Music Publishing & Songwriting

Here is the story of how professional songwriting works:

One hundred people go to a firing range to take target practice. Of that hundred people, ninety of the shooters are wearing blindfolds. They can’t see a thing. Not surprisingly, they’ re blasting off bullets in every direction—in the air, in the ground, behind them, at each other. Nothing is hitting the target except by sheer luck.

Of the remaining ten people, five of the marksmen are not wearing blindfolds, but they have poor vision and they’re not wearing their eyeglasses. So these five people can see the target vaguely, but it’s very blurry, and they can’t focus enough to really get all that close to the bullseye with any consistency.

The final five shooters have normal 20-20 vision, and they’re not wearing blindfolds. They’re staring straight at the target and pulling the trigger. While they’re not hitting their mark every time, they’re consistently able to get somewhere near the center of the target.

Have you ever wondered how it is that some songwriters (like Dr. Luke, Will.I.Am, Max Martin, RedOne, Alicia Keys, or Ryan Tedder at this particular moment in time) can consistently come up with hit song after hit song, while the vast majority of songwriters struggle to even get a cut? As a publisher, I certainly have.

One of the first things I noticed when I entered the world of music publishing after having been a songwriter for many years, was the vast imbalance that characterizes the writer roster of almost every publisher in the music business. If you’re fortunate enough to be having success at all, it’s almost always one or two writers who are generating all the activity that sustains the company, while the rest of the writers are struggling even to pay back the cost of their demos. Ironically, the writers who are making the hits that pay the bills are usually the ones a publisher is least likely to hear from—they are usually self-contained, self-sufficient business entities that rarely need the creative input of the professional manager at the publishing company. For a publisher acquiring new talent, the question is:

What are these writers doing differently than everyone else?

That question came back to me this week, as I was asked to speak to a group of up and coming songwriters at the New York ASCAP Songwriter Workshop—a fantastic group of young songwriters, selected based on songs they submitted, who participate in a short series of meetings intended to help them along their path as writers, producers and artists. These are people who have the talent, and in some cases, have already started to make an impact with their music. Still, they are faced with the challenge that greets every young, developing songwriter, and every publisher who is in the business of finding and developing talent:

How do you move beyond being a talented songwriter on an artistic or technical level, to being a successful professional songwriter on a financial level?

That’s a tough question, and it’s getting tougher all the time. In giving professional, real-world advice to people pursuing a career as songwriters, it would be very easy to simply say, “Don’t”. Having been a songwriter myself in a career that spans almost 20 years, I can honestly say that I don’t think the environment for new artists, writers or producers has ever been more challenging than it is right now. Of course, it’s true that there are more opportunities to distribute or expose your music than ever before, and viable DIY models that did not exist even a decade ago. Still, the professional realities are that sales are falling drastically (whether it’s for DIY product or major label superstars), fewer and fewer artists are recording outside material, fewer labels are signing or breaking new artists, and the level of sync fees and other forms of income are plummeting as well. It’s not a pretty picture. The obvious advice would be to look for some other form of self-abuse to engage in.

And yet, there are success stories every day. Four years ago, I went to see RedOne at his studio, just after he had moved to Manhattan—there were no hits at that point, but the buzz was building. Today, he’s announcing his own label deal, and topping the charts with Lady Gaga. A year after I first met RedOne, the company I work with, Shapiro Bernstein & Co, signed a deal that allowed us to represent a French DJ and producer, David Guetta in the US. Guetta was already a superstar in France and much of Europe at the time, but not well-known in the United States. Since then, he’s had hits ranging from “I Gotta Feeling” with the Black Eyed Peas to “Sexy Chick” with Akon to “Club Can’t Handle Me” with Flo Rida. On paper, songwriting makes playing the lottery look like a conservative business strategy. Nevertheless, success happens everyday.

In fact, as an A&R person, I can’t even say that success is terribly hard to predict. If you’ve been doing this for awhile, and you’ve learned to recognize the vibe of a hit songwriter, it’s actually not all that difficult to predict which upcoming songwriters will one day hit the jackpot. I always say—it’s easy to spot the writers who will make hits. The challenging part is to determine when they’ll make them. For publishers, it’s not enough to know that someone will one day be successful. You need to know if he or she will be successful during the three or four year span that you have them under contract.

So what are those signs that mark a songwriter who will defy the odds and go from up and coming to become the sound of the moment? What do you look for as a publisher to identify those potential superstars? What can you do as a songwriter to move up the ladder into the circle of successful hitmakers? Here are two fundamental qualities that make all the difference between having the potential for success, and actually realizing that potential:

1. Successful songwriters know who they are.

Whether you write for yourself as an artist, for your band, or for outside artists, the first step toward success as a songwriter requires defining who you are and what you do. That’s harder than it sounds, because it involves being realistic and objective about your own work, which is something that many songwriters never quite master. As I often mention in my class, Music Publishing 101, one of the values of embracing your role as your own music publisher is that it forces you to take a more critical view of your own work—seeing what you do well, where your shortcomings are, what styles you excel at and which you struggle with—and challenges you to take steps to shore up any weaknesses in your songs.

Songwriters who become successful generally have a very clear view of where their particular gifts lie, what makes them special, and what help they need to compensate for their shortcomings. Certainly, they can take criticism and even embrace it, if they think it’s well-founded. But more importantly, they don’t need criticism, because they are already acting as their own toughest critic. They are constantly searching to find the musical styles, writing collaborations, working environments, and business structures that allow them not just to experiment or create, but to excel.

Then, once they find who they are and how they work best, the successful songwriters FOCUS. It’s hard to think of any of the top A-level songwriters that don’t have a pretty narrow approach about what they do. Ryan Tedder, the primary writer for OneRepublic as well as for artists like Beyonce and Leona Lewis, is the most diverse I can think of, and even he moves in a pretty restricted area that crosses between pop rock and pop urban, often crafting songs in either genre which are fairly similar, except for the production values and lyrical point of view. In general, most successful artists and songwriters have learned to specialize and to become experts in one specific area or style. They don’t try to do everything. Instead, they know themselves enough to realize that they need to do not what they do well, but what they do best.

Ryan Tedder

There’s also another reason they’ve learned to focus their efforts in one particular area:

2. Successful songwriters know their audience.

Again, no matter if you write for yourself as an artist, for your band, or with the hopes of having other artists record your songs, the secrets of successful songwriters hold true. In addition to knowing who they are as songwriters or artists, the people who manage to be effective in this business have an intuitive, deep, respectful knowledge of who the people are that will support their music. In some cases, songwriters may be writing for people very like themselves—most rock bands, for example, tend to resemble their audience. In other cases, the songwriter may be from an entirely different generation, background or gender than the audience he or she appeals to.

Dr. Luke

But as Rakim said, “it ain’t where ya from, it’s where ya at”. Dr. Luke would never be mistaken for the 13 year old girls that make up the audience for Ke$ha or Katy Perry, but he is very clearly aware that they are his audience, and he intuitively understands what they want from a song, what interests them, how they speak, and what they aspire to. This is likely why Luke doesn’t write country songs—because he knows himself, and he knows that he doesn’t have an accurate picture of that particular audience in the way that Brett James or Hillary Lindsey might. Popular songs reflect the values and interests of the audience they serve. Not surprisingly then, every successful artist or songwriter has a very clear idea of who their core demographic audience is, and has gleaned as many details about that group of people as possible:

Age
Gender
Location
Hobbies
Occupations
Social Values
Political Values
Other favorite bands
How and Where They Listen to Music
Why They Listen to Music

It’s a lot of knowledge to accumulate. That explains why top hitmakers don’t try to have a cursory knowledge about dozens of different genres, but rather prefer to FOCUS, so that they can become experts in one specific area. The reason that Kanye West can make bold records like the one he previewed at the VMA’s a few weeks ago is because he knows his audience, and he understands how they will react. Toby Keith understands his audience just as clearly. David Guetta knows how dance music fans will respond to a particular record, because he studies them at 200 DJ gigs a year. And yet, incredibly, most of the new developing artists I meet can barely articulate who their target audience is, much less describe them with any degree of accuracy. Most songwriters have never given it a moment’s thought.

Kanye West

If you don’t know who will like your music, or who it is intended to speak to, the record company, radio programmers, publishers and music supervisors probably won’t be able to figure it out either. That means the music can’t be marketed— because no one can market to an audience that includes everyone, everywhere. Just as importantly, if you can’t target your market, it’s very unlikely that you’ll happen to create what the market wants or needs. Which leads us back to our original story…

It’s isn’t hard to predict that the five people who are not wearing blindfolds, and who don’t need glasses, will hit the bullseye more often than the other 95 shooters. It’s because they can see the target in front of them, they understand what they’re trying to do, and then they’re taking AIM. Most songwriters never take aim. It’s almost as if they feel it’s cheating. Meanwhile, a tiny number of writers hit the mark over and over again.

Very often, the primary difference between a good, developing songwriter and a hitmaker is not one of talent. It’s strategy. Successful songwriters and artists have learned to think strategically about what they do and who they’re doing it for. Sometimes that process takes years. Sometimes it doesn’t last. If you study once successful artists or songwriters whose careers have faded, it’s usually because success led them to lose sight of their own strengths and weaknesses, or to lose touch with their core audience. Still, the sooner you start to focus and take aim, the sooner you’re likely to start having a real impact in this industry.

For publishers, helping developing songwriters to think strategically is the single most productive thing we can do. For all of the technical and legal aspects that are explored during my 12 week course at Berkleemusic.com, the primary mission of Music Publishing 101 has always been, and continues to be, to help songwriters begin to put together a strategic plan for their music. The goal is to be able to hear your work objectively, assess your strengths and weaknesses, focus your efforts on the most productive markets, and formulate a plan to bring the music to its target audience. That’s how music makes money.

http://berkleemusic.com

This week is the start of the fall semester at Berkleemusic.com, but there’s still time to register for the newly revamped Music Publishing 101. In an environment as difficult as the one in the current music industry, it’s not enough to be talented. After all, there’s an ASCAP Writer Workshop every year, full of writers with infinite potential. The challenge is to separate yourself from all of the aspiring artists and writers, and start to build a professional career. If that’s what you’re hoping to do, this course may be what helps you find your path to success.

I hope everyone had a great Memorial Day holiday! I joined much of the country in taking a quick vacation– a couple of days of international business, then off to a week-long respite from weaseling. So maybe that explains why my mind is on things global. Or maybe its a conversation I had last week with someone in the insurance industry who had just been offered a position in Singapore– he was telling me that in many of the world’s fastest growing economies there is a real shortage of people with expertise in many of the major industries. Or maybe it’s the video I just watched, forwarded to me by one of our faithful blog-watchers Quincy Wofford, of the first hit that built the career of Haim Saban, the subject of one of my most recent blogs. That video featured an Israeli teenager singing a French song in one of the earliest Japanese television cartoons. It doesn’t get much more international than that.

http://www.youtube.com/watch?v=XgRhus96ySk&feature=related

What all this worldly thinking does is to bring home to me the fact that most of us are missing opportunities all the time, simply because our sphere of awareness is not sufficiently global. In fact, much of the time, it’s barely even local. When I was a writer-producer, the world was frequently contained entirely within the four walls of the recording studio, for weeks or months at a time. We are all worrying so much about what we’re doing, that we forget that where we’re doing it could make all the difference. If you’re searching for gold (or platinum records), it’s usually easier if you go where the gold is found.

This does not mean that you should immediately join every other songwriter from New York, Nashville, and London in moving to Los Angeles. Quite the opposite in fact. The herd mentality is exactly what you want to avoid if you’re looking for opportunity. You can’t dominate a market that’s over-saturated. You become the big fish by going where all the other big fish are not.

Of course, those little placid pools of opportunity seldom feel terribly exciting when you first arrive at them. In fact, most of the time, when a songwriter is in a small town, or a mid-size city, or a relatively small country, or in an economy that is still developing and has little infrastructure for media or music businesses, all he or she wants to do it get out. I recall having a writer/producer from Denmark make a writing trip to New York, and within days of arriving, he was already talking about moving here. Now Denmark is actually a very vibrant country with a thriving music community. Nevertheless, it’s not a large market, and as such, certainly doesn’t offer the financial pay-off that making it in America does. I can easily understand the appeal of relocating to a city full of other artists, writers, and music business people.

What I had to explain to the Danish writer was that much of his appeal to A&R people, American co-writers, and others in the industry was that he was something exotic. Simply by coming from a different place, and bringing different influences and ideas, he had a story that opened doors. It’s a lot easier to suggest to an A&R person that they take a meeting with the hot new writer in town for a week from Denmark, or Berlin, or Peru, than to interest them in another songwriter from Brooklyn or Hoboken. People in the music industry are constantly searching for something new and surprising, and more often than not, those things do not emerge from the same community of songwriters that is creating the current hits. The hot new thing comes from outsiders– whether it’s from a regional scene (think of the music coming out of places like Atlanta, Austin, Chicago, St. Louis, New Orleans, Memphis, Portland and Vancouver), or from another country. Today’s Hot 100 is full of international success stories, from RedOne to Stargate to David Guetta to The Phoenix to The Script to Greg Kurstin to Akon to Rihanna. Being from a place outside of the music centers can seem like a disadvantage, especially if there’s no local music community with whom to work. Yet, it’s also an advantage of sorts, as it gives a story and a new, fresh perspective. It also makes it relatively easy to become a dominant player in the local scene.

RedOne

That reality has a flip side for songwriters, producers, publishers and others who are located in a music center, like New York, London, Nashville or LA. While you might be fighting for every breath in a big but very crowded pond, perhaps you would be a big fish in a smaller, less competitive environment. I often find this to be especially true for melody and lyric writers working in the urban/r&b market. What if instead of struggling to break out of the pack of the hundreds or thousands of topline writers in a market like LA or Atlanta, you were to go to a European country, where people who could write believable, authentic lyrics with an American urban sensibility and slang were in relatively short supply? Countries like Denmark, Sweden, Norway, Germany, or Amsterdam are full of fantastic programmers and producers who can compete with many of the top urban producers in the US. But they lack the topline writers who can provide lyrics that work for American audiences. It doesn’t always make sense to go where the action is. If you’re trying to get to first base, the best thing to do is “hit ‘em where they ain’t”.

That goes for the business side as well. Just as many developing countries are in need of experts in insurance, banking and medicine, they may also be in need of people to build their creative industries, like music, film, radio, and entertainment management. It’s hardly news to anyone that the music industry in America and much of Western Europe is contracting, or maybe even collapsing. But in places like Eastern Europe, China, and the Middle East, the music industry is just getting started. It’s often not very pretty, frequently lacking in infrastructure or even basic copyright law, and sometimes actually at odds with government authorities or local customs. That’s about what the industry looked like in America in the Forties and Fifties, when people like Leonard Chess, Ahmet Ertegun, Don Kirshner, and Col. Tom Parker first made their fortunes. If you want to strike it rich, the place with the least rules, the fewest entrenched power brokers, and the lowest number of competitors is an ideal place to do it.

Since it’s that time of year, I would then offer this up as advice to all of the graduates of music schools and music business programs this month:

Get outta here.

Don’t go where everyone else is going, wherever that might be. Find a place where there is an interesting local scene that’s just taking shape, or an economy that’s growing rapidly, or a place where whole segments of the music industry have never existed. Then bring your knowledge, talent and ambition to somewhere that really needs it. It will be very difficult, especially in places where there is relatively little legal or economic infrastructure on which to build. But trust me, trying to break through by gigging at the Mercury Lounge or the Whiskey is pretty difficult too– as is working your way up through the executive ranks of a major label teetering on extinction. At least this way, you have the chance to truly hit the jackpot, rather than just hoping for a decent advance or a good severance package.

Sooner or later, you will in all likelihood return to London, LA, New York, Stockholm, Munich or Tokyo– that’s why they call them music centers. These places are the ones with the lawyers, agents, major publishers and labels, and collection companies that make the business run. But when you return, you’ll come back with a story (hopefully a successful one), some momentum and credibility, and with any luck, the kind of power that comes from having created a thriving business model in unlikely circumstances. That’s very different than showing up in town with a degree and a suitcase full of resumes.

Realistically, in order to pull this off, you’ll need more than just a basic background in the music biz. You’ll want some foreign language skills, an understanding of the culture and economic system of wherever you’re headed, a musical knowledge that extends beyond the current US Top 40, and an understanding of how different aspects of the music business can change based on local custom, copyright laws (or lack thereof), and different collection systems. Needless to say, that will take some extensive studying and research.

At the moment, I’m knee-deep in updating my Berklee Music online class, Music Publishing 101. One of the key changes I’m hoping to make in the new course is a greater emphasis on the international differences in music publishing. It’s a very tough subject to address, simply because there are so many of those differences, some rooted in variances in the copyright laws between territories, others related to the size of the market, and still others based on custom and history. The US system is neither the oldest nor the most representative– it’s just one way among many of publishing music. You need to know the variations in each market, not just so that you can speak intelligently with sub-publishers and colleagues in other regions, but also so that you can take advantage of opportunities that lie outside of your own national borders. If you want to check out the new version of Music Publishing 101, visit Berkleemusic.com

When I first told my parents that I wanted to be in the music industry, they reminded me frequently that success in that field seemed to hinge entirely on being “in the right place at the right time”. Those words always drove me crazy, as they seemed to imply that anything that happened in music was all a matter of sheer luck—never a great basis upon which to build a business strategy. While I’m still not a big believer in the “lucky break” theory of career development, I now have to admit that Mom and Dad had a point. By doing a little research, keeping your eyes open, and being willing to go wherever it takes to grab an opportunity, you can put yourself in the “right place” at the “right time”, and make your own luck. Don’t be afraid to pack your bags and go west, east, north, or south to find a place where the pasture is greener.

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…