Music Law 101: Who Owns The Copyright In A Song?

After your band has written and recorded a song, who actually owns the song? This simple question does not necessarily have a simple answer. How many people were involved in the writing process? Were there other people involved in the recording process? Did you hire a producer? Did you use other background vocalists or musicians in the studio? Did you use “work made for hire” agreements with individuals involved in the process? Do you have a band agreement? The answers to these and other important questions help determine who actually owns the copyrights in any given song.

In general, the individual who writes or records an original song owns the copyright in the musical work or sound recording. So if only one person is involved in the writing and recording process, then that person owns the resulting copyrights.

Of course, it is more common for two or more individuals to be involved and contribute to the writing and recording process. Co-authors of a song or recording co-own the copyright in that work. Absent a written agreement otherwise, co-authors of a song each jointly own an equal undivided interest in the copyrights (i.e., 2 co-authors each own 50%, 3 co-authors each own 33.3%, and etc.). Thus, even if one co-author actually wrote 90% of the song and the other co-author only wrote 10% of the song, if they don’t agree in writing otherwise, they each own 50%.

Whether an individual is an author (or co-author) generally depends on whether the individual has “control” over the creation process—that is, whether that person was the “mastermind” behind originating the work. Where there are two or more creators of a copyright, the creators are co-authors and joint owners when the authors intend their contributions to merge to become part of a whole. Accordingly, individuals who write or record music together are generally co-owners under copyright law.

When joint owners have not entered into a written agreement otherwise, each co-owner has the authority to grant a non-exclusive license to a third party without the co-owner’s consent. A non-exclusive license means that others can also use or exploit the work at the same time as the third party. If a co-owner attempts to convey exclusive rights to a third party, an exclusive license effectively becomes a non-exclusive license. A joint owner of a copyright cannot sue a co-owner for infringement. But a joint owner can bring a claim against a co-owner for an accounting on any profits earned by the co-owner from the joint work.

In certain situations where the individual author is acting as an employee or otherwise under a “work made for hire” agreement, his or her employer or principal will own the song as a “work made for hire.” In the case of a “work made for hire,” the employer/hiring party—not the individual writer—is the “author” and owns the copyright.

Whether someone is “employed” for purposes of determining whether a song is a “work made for hire” does not require a formal employment relationship. Rather, “employment” is generally determined by whether the “employer” has control over the creation of the work (i.e., has the work done at the employer’s location and provides equipment or other means to create the work) and control over the “employee” (i.e., controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, etc.). The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created in the scope of that employment will be a “work made for hire.” Examples include a musical arrangement written for a music company by a salaried arranger on the company’s staff, or a sound recording created by salaried staff engineers of a record company.

Where there is not an “employment” relationship, a work may still be a “work made for hire” where the parties enter into an agreement signed by each party that expressly provides that the work is a “work made for hire.” However, under copyright law, only specific categories of works can qualify as a “work made for hire” this way. In particular, Congress did not include sound recordings in the specific categories—so, a sound recording alone can’t be a “work made for hire” absent an “employment” relationship.

Because there can be uncertainty over whether a work is created on a “work made for hire” basis, music contracts will typically provide “work made for hire” language and alternate copyright assignment language. We will discuss copyright assignments and transfers in a future Music Law 101 post.

In short, where more than one individual is involved in writing and recording a song, copyright ownership can be complicated. The individuals may be joint owners with equal undivided interests, or ownership could be determined on a “work made for hire” basis. The best practice is to enter into agreements with co-creators to make sure that everyone’s intention as to ownership is agreed upon and clearly specified in writing.

Now that you know what copyright law protects, and how ownership of copyrights is determined, stay tuned for our next Music Law 101 post, in which we will explain the different exclusive rights a copyright owner has in his or her work.

The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.

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21 comments

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  • Henry Orellana - June 9, 2018 reply

    Gracia

  • Hoy - August 10, 2018 reply

    If a producer happen’s to the person sponsoring the “work for hire” what happens to the song writer and the singer

  • Tooly "223" - November 10, 2018 reply

    Broke and in need of a distro deal…

  • Colette Doherty - April 8, 2019 reply

    If I am an author of book and wrote the lyrics to send to recording company to make song does that mean I still have ownership of copyright?colette

    RB - December 9, 2019 reply

    You will always have copyright ownership once your work is in some tangible form (a book)… unless some other agreement is reached in advance. Be sure to register it before you showcase/release/share it. That’s a huge benefit for you in the event of challenges. If the recording company “creates” music for your book, they equally share the copyright ownership with you (50/50). If you tell them what to play AND the play what you say (because you’re not a musician) and you pay them for their involvement, then a work for hire situation exists and you would maintain 100% of the ownership. All of this needs to be clear up front or you will face copyright owneship challenges. Record companies have more money and clout than most “artists.” That money and clout affords them great power when copyright issues are not made clear in the beginning. FYI: The record company would need your permission to do anything with the completed work just as you would need theirs… if what you end up with is a shared copyright.

  • Darryl wright - April 10, 2019 reply

    I two artist that signed a development agreement with me.to record under the company at the time.they record songs and I have the master.and I’ve reach out to them but they won’t sign copyrights and I want to put song out.what do I do???????

    RB - December 9, 2019 reply

    Your case depends completely on what is meant by a “development” deal. If the development deal includes your help to write and/or compose the songs, you own an equal part of the copyright, but you would need to get permission from the other parties to put the songs out. If they write the song(s), the lyrics, the music, etc, they own the rights and there’s nothing you can do unless there’s some breach of a contract giving you some authority to do as you please. At that point everything depends on the contract. They (or you) can only breach what’s in the contract. If you are a studio owner, you are not entitled to do anything with the music/song(s)… unless it’s agreed upon in the wording of the “development deal.” The same applies if you’re a manager or promoter. Your authority or control has to do with developing the artsts… if I understand what you mean when you say development agreement correctly. If you are not an actual contributor to the creation of the music and the artst breaches the deal, you can hold the masters hostage until you are made whole. You can’t do anything with their songs without their permission. If you are a contributor, then you are an equal owner of the work. However, as an equal owner, you still need permission from the other parties to do anything with the song(s). In your case the wording in the development contract is critical. Hope this helped.

  • Joe Perez - June 28, 2019 reply

    This is a 2 part question: what happens if there is no written agreement on creation or writing process and band is broken up years ago.( I must note that 1 of the 4 band members has passed away. ) The only real ownership or possession is the recordings themselves and owns the console that hold the master tracks….So my question is ,who owns the rights???

    RB - December 9, 2019 reply

    The simple answer is everyone involved in the creation of the music has equal ownership. Even the deceased member until 75 years after his passing. That may have been reduced to 50 years, but I think 75 is accurate. The issue here may come down to proving who actually contributed to the creation of the music. All that aside, if anyone (even me) submits an application for copyright of the material, they (I) would own the rights since there’s nothing to say/prove otherwise.

  • Ronan McElroy - June 30, 2019 reply

    If i wrote the musical accompaniment of a song and not the lyrics can i request that the artist no longer uses my accompaniment? Any help on this would be great

    RB - December 9, 2019 reply

    It depends. If you were hired to “create music” for a bunch of words; which is to say the lyricist had no melody ideas and you were the only one involved in the creation of the music… in essence you “wrote” music to a poem, then the answer is yes. The lyricist needs your permission to do anything with the song (which includes your music). The flip side of this is that you need the other person’s permission as well because you both own the copyright equally.

    If the lyricist sang a melody AND you figured out what to play to go along with that melody AND you were paid for what you figured out and played, without some other agreement in place, what you did was a work for hire. The copyright and what you played belong to the lyricist. If you were not paid AND/OR the lyricist simply asked you to put some music to some words AND that music became a part of the finished work, then you equally share the copyright… unless there is a separate agreement in place.

  • Janice Slade - September 27, 2019 reply

    What if you wrote the lyrics to a song and had a verbal agreement with the singer that if it makes it he would not forget about me,but he claims he wrote it,what can I do legally?

    RB - December 9, 2019 reply

    Unfortunately, without copyright registration documentation stating your role/part, it’s an uphill battle for you. If you protected your lyrics before the singer did anything with them, you’re golden. The verbal agreement won’t hold up in court (unless you hire a better attorney than the singer). If you recorded the agreement on your phone, you may have a chance. NEVER SHARE YOUR LYRICS, MUSIC OR IDEAS WITH ANYONE UNTIL YOU COPYRIGHT THEM… EVEN IF IT’S SOMEONE YOU TRUST. I’m not yelling. Just putting emphasis on a critically important piece of information. I copyrighted something last month. The cost is now $55/application. It’s well worth it to protect your work.

  • Jimmy Humphrey - November 16, 2019 reply

    I have a huge following on LinkedIn and Facebook but hardly anything on reverbnation and I’ve followed all the suggestions, I’m even getting the lifetime achievement award but nothing here what’s up..

  • Archie - December 18, 2019 reply

    If I wrote the lyrics and chords to my songs, do the band members have any copywrite ownership after we recorded and release the tracks on a CD and submitted to a few media platforms ?

  • Vickie Graham Smith - December 19, 2019 reply

    My dad wrote song and recorded a couple songs I in the late 50s or early 60s..I have seen two of his songs On YouTube, He’s passed away in 76 and I am trying to find out Who holds the copyright.He recorded the song at D&B Studio in Nashville.Tennessee…..Please help thank you

    JM - February 13, 2020 reply

    Contact ASCAP and BMI to see if the song is listed with them. They will be able to tell you who owns the rights. You can also search the US copyright office website.

  • James Rockford - January 1, 2020 reply

    Thank you for the brilliant article. I have two questions which I”m hoping you can answer or direct me to the right place, please.
    I wrote and recorded with another person. There is no written contract, but both our names are on the copyright registrations, as equal authors on everything (sound recording, composition, claimants). Our relationship dissolved, but I want to try to get placements (sync licenses) for the music. I heard music supervisors need approval from each author before the songs can be cleared. When an author can not be reached or may have a grudge against the other author, what are the options that the song can be used in terms of granting licenses?

    Thank you so much in advance

  • ZZ - January 14, 2020 reply

    Hello, years ago I was in a band with 3 other people and we wrote a song together and that song was distributed by a few labels/companies as a compilation cd. This was handled by one of the members of the band unbeknownst to me. I have audio recording of the practice in which the four of us wrote the song from start to finish. More than likely royalties were paid out but I was never compensated. What is the best route to take at this point to get compensation for my part In creating the song?

  • Hal - March 22, 2020 reply

    CD is recorded ..song writer doesnt want to copyright but performer singer wants to copyright the sound recording.
    Can performer move forward with a publisher?

  • Hana Tarek - March 27, 2020 reply

    I wrote a song yesterday but i don’t have a good voice to sing it
    If someone sang my song who would own it
    And who would be more famous?

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