Sunday, February 22, 2009

Collaborations and Joint Works

The other day, I had a potential client ask me an intriguing question. He was a writer/musician and wanted to know how to protect his work when he was collaborating with other people. More specifically, he wanted to know if he was creating work that was capable of copyright protection when he was recording music in the studio with other people. Essentially, he was adding keyboard parts to someone else’s work.

Note that this was not the stereotypical Nashville situation of two songwriters sitting down to write a song. The law is fairly clear that in that instance, they are creating a joint work (defined by the Copyright Act as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”) But even that situation is not always clear cut. I was once involved in a dispute between three writers where there was some disagreement over whether they had each written a third of the song or whether the third writer’s contribution was somehow less than that of the other two.

My friend’s question concerned the more tricky area of studio collaborations.

I think that industry custom is pretty clear with respect to studio musicians who are asked to lend their expertise to creating a finished product. But what about people who engage in less well-defined collaborative processes? I am constantly reminded of the English case of Matthew Fisher, Procol Harem’s organist, who convinced English Court that he should be entitled to 40% of the total share of the copyright to “Whiter Shade of Pale” because he contributed the seminal Bach-inspired organ intro. The case was reversed on appeal, but apparently Fisher has been granted leave to appeal again. Johnnie Johnson, Chuck Berry’s long-time piano player and Johnny Cash’s cohorts from the Tennessee Three were less successful in their attempts to convince courts of their authorship rights. Even today I read about one of the session players on “Electric Ladyland” grousing that he should have received royalties on one of that album’s ethereal jams (recorded 41 years ago).

I think the question comes down to intent. Did the parties intend to create a joint work? That can be difficult to prove in the absence on tangible evidence.

Several years ago, a lawyer who specialized in hip-hop, told me that he had created a short one-page document for his clients and their collaborators to use in the studio to memorialize their mutual understanding of their respective authorship shares at the time of creation. I didn’t see the need for such a document at the time but I certainly do now (especially when nearly every hip hop song on the charts is a collaboration of some sort). Whether the issue concerns a band splitting publishing or a studio collaborator adding an original part to a composition, these issues need to be determined as close to the time of creation as possible and not in a courtroom decades after the fact.

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