Bob Dylan, Hootie and Derivative Works

I can admit that I am a hypocrite.  I hated that Darius Rucker song “Wagon Wheel” until I learned that Bob Dylan co-wrote it.  Actually, I still don’t like the song much but I was intrigued with the story behind the song.  According to different sources, Dylan created the work as an outtake from the recording sessions for the soundtrack to Pat Garrett and Billy the Kid in 1973.  Dylan expert Clinton Heylin titled the song as “Rock Me Mama”.

Years later, Ketch Secor (who obviously knows his Bob Dylan bootlegs) of the band Old Crow Medicine Show added new verses to Dylan’s riff.  In an amazing occurrence, Bob Dylan consented to the co-write, even with the 28 year time difference, and a song was born.

So legally what is “Wagon Wheel”?  One can’t tell from the publishing information but it meets the definition of a “derivative work” defined in the Copyright Act as “a work based upon one or more pre-existing works, such as … a musical arrangement … or any other form in which a work may be recast, transformed or adopted.”  A derivative work cannot be exploited without permission from the underlying copyright owner.  This is to be distinguished from a “joint work” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary whole”.  This describes the typical co-writing situation where each author owns an indivisible share of the copyright.

Taking this a step further, a parody is a derivative work.  If the underlying author does not authorize the exploitation of the work, the parodist’s only defense is to argue “fair use” as Luther Campbell did in the “Pretty Woman” case, an important case with a holding that nevertheless still confuses me.

There are many different ways that songs can be created.  Think of Billy Bragg and Wilco adding music to the poems of Woody Guthrie or the recent album where  Bob Dylan, Jack White and others added music to lyrics found in one of Hank Williams’ “lost” notebooks.

Lawyers often get involved in the aftermath of these creations.  In the past I’ve had to deal with one co‑writer wanting to add a third co-writer’s contribution to a song after it was considered finished, a co‑writer of the songs in a musical who wanted to use the songs in a different setting and the thorniest issue of all, a co‑writer who wanted to “undo” a co-written composition.

All of these issues present challenges and also make the study of the different forms of collaboration and the legal repercussions endlessly fascinating.

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.