Agree On Your Songwriter Splits
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Music created collaboratively often has a complexity and beauty to it that solo projects can't match. Whether songwriting partners jam until something coalesces, or collaborate using a more structured method, it's common to avoid discussing, or even thinking about, the division of ownership in the songs for as long as possible. This is a mistake, and one that can cause inconvenience or even lawsuits down the road. I hope this article will encourage songwriters who work collaboratively to discuss and agree upon their respective interests sooner rather than later, and to put their agreement into writing.
Under United States copyright law, if two or more people write a song together, they all own it and can all use the entire song, but if it makes money, they're required to share it. (See the definition of "joint works" in Section 101, also Section 201 (a).) But what percentage does each writer get? This needs to be determined on a song-by-song basis, and is best determined by the songwriters themselves. The division of ownership (and hence, royalties) between two or more writers is usually called the "songwriter splits."
Note that in this article I'm only discussing the song, not any particular recording of the song. It's quite common for ownership of a song to differ from ownership of a recording of that song. For example, if a band's guitarist writes all the songs herself, but the entire band pays for and performs on the recording, it's likely that the guitarist would own the songs but the entire band would own the recording. Ownership of the recording is also something that should be discussed and agreed upon, preferably before going into the studio.
As a matter of industry practice, there is an assumption that the lyric writer(s) own 50% and the music writer(s) own 50%. So if a four-piece band writes a song together and they all write the music but only one person writes the lyrics, the lyricist would get 62.5% of the song (50% for the lyrics plus 12.5% for one-quarter of the music) and the three music-writers would get 12.5% each. But there's no reason why the four bandmembers can't agree to something different. Many bands agree to split all songs evenly, on the assumption that any differences between songs will average out when considering their entire album or their entire catalog of songs. In the absence of any information to the contrary, a third party will usually assume that a song is split evenly between all the writers.
In deciding on the splits, it's rarely worth getting excessively nit-picky. Any perceived gain from convincing your co-writers to give you 67.3% instead of 65%, or a different percentage on every song, might be wiped out by the increase in paperwork and an increased risk of royalty calculation errors. On the other hand, the difference between 20% and 22% can be significant if a song is licensed for a worldwide ad campaign at a high fee, so all writers should think carefully before agreeing.
Note also that as a general rule, it's the same splits for ownership, credit, and royalty purposes, but there are -- very rarely -- exceptions. For example, the writers might all agree that a particular writer gets a share of royalties, but isn't credited as a writer on the album, or vice versa; or one writer wants sole ownership of the songs' copyrights. If the writers want to do something unusual like this, it's especially important to put it in writing, preferably with the help of an attorney.
Once a third party expresses interest in buying or licensing a song, or a song starts earning money -- in other words, once there is something tangible at stake -- the process of agreeing on splits may become more difficult. There may be pressure to come to an agreement quickly before the third party loses interest, and/or memories may have faded regarding who wrote what. That's why I recommend that writers agree on the splits in writing as soon as possible after each song is completed or first recorded. Once the writers have agreed amongst themselves, it will be faster and easier to make deals with third parties.
Below, I've posted a sample form in which four co-writers agree on their splits for four different songs. (The writers and songs are fictional.) You can create a similar form for yourself and your co-writers for your songs. The percentages shouldn't be filled in until everyone has had a chance to discuss and agree upon them. The "Total" column is optional, but I've included it as a reminder that each song must add up to 100%. Once the percentages are filled in, everyone should sign the form, and everyone should get a copy. Then, if any questions come up later, or if a third party needs confirmation of the splits, it will be easy to refer back to this sheet.
Please note that I am offering only general information, and this form may or may not be suitable for your specific situation. Do not rely on this as legal advice.
We, the undersigned, hereby agree that the following chart accurately represents our respective interests for ownership, credit, and royalty purposes.
|Song title||Joe Shmoe||Sue Smith||Deborah Doe||Michael Mann||Total|
|I Love You So||62.5%||12.5%||12.5%||12.5%||100%|
|Rock All Night||25%||25%||25%||25%||100%|
|Ooh Yeah Baby||50%||0%||50%||0%||100%|
Signed this ___ day of _______, ____.