The Legal Perils of Co-Writing

Recently I seem to be inundated with legal questions about co-writing.  I am not sure why this has not really come up before.  I suspect that it is because the concepts or “rules” of co‑writing are ingrained and institutionalized within the Nashville music publishing community but I can tell you that this is not the case elsewhere. There is a great deal of misunderstanding and miscommunication out there.

 Let’s start at the beginning  – what is a co-written composition?  Under the Copyright Act a co‑written composition is a “joint work” and the definition is important:  A “joint work” is 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.

 The key concept here is that the authors must have an intention to create a unitary work.  However, once that work has been created one of the co‑writers cannot unilaterally decide to remove their contribution.  The work exists and each collaborator is an owner.  This also means that each author has an equal right to exploit the work, subject only to a duty to account to his or her collaborators.

 I can only think of one occurrence in the past three decades where I was asked to help a writer “unwrite” a song – where we literally created an agreement between two co‑writers which removed one writer’s creative contribution from a finished work.  I can also tell you it was messy.

 Also, if two or more persons are joint authors of a musical composition then this means that one of the writers cannot decide to add a co-writer without the other’s permission. This seems like common sense but it is amazing how this can become convoluted and confusing during the creative process. I know that this is a huge issue in the urban/hip hop world,

 In another odd issue that came up recently, I had to explain that one co-writer cannot force a collaborator to continue to work on a song.  One writer may decide that the work is finished where their collaborator may want to continue to re-write the song. From the legal perspective, does this mean that the song is not a true joint work because one of the writers lacked intent?  I don’t think there are any real rules on this.  I have asked a number of Nashville writers about this and the consensus seems to be that if all parties believe that the song is good then it is worthwhile to keep putting time and effort into it; if not, you just move on and don’t worry about it.  Not every song can be “Yesterday”.

 Another potentially contentious area is expenses.  What if one writer wants to create a demonstration recording of the song and the other does not?  Again in the Nashville publishing world there seems to be a fairly clear-cut system that details how and when demos get made and how publishers divide expenses for demo costs; but even this system is subject to misunderstanding.  Outside of “professional” circles it is clear that there are no rules – written or otherwise that obligate authors of a musical composition to have to split the cost of demonstration recordings or any other costs for that matter and this seems to be an area of confusion.  I have had writers ask me if they can “force” their co-writers to pay demo expenses or other expenses and the answer (in the absence of an agreement) is no.

  I would suggest that anybody contemplating a co-writing situation, outside of the traditional Music Row system, sit down with your prospective collaborator first and have a serious discussion about these types of issues.  It will save a great deal of time, expense and angst in the end.

Our Fake Mayor's Contract Problems

If you are like me, you have been watching the actions of our fake mayor, Teddy Conrad, with increasing disgust.  I could not believe that he signed his 15-year-old daughter, Maddie, to a record deal with Edgehill Records.  He didn't even read the contract! 

 

            I'm not going to give any spoilers away to those who did not watch the most recent episode of Nashville but the situation did cause concern.  No serious record company, no matter how evil, would sign a minor to a long-term recording agreement in Tennessee without seeking a court order removing the "disability" of the child's minority for the purpose of "making a contract".

            T.C.A. Sec. 29-31-101 et seq. sets out a very straightforward framework in which a minor, either through his or her "next friend" or parents, files an application in Chancery Court to "remove" the child's minority.  This is routinely done when a child signs a recording agreement or a publishing agreement.

            While it is true that a parent can sign a minor to a contract, that contract can be completely voided by the upon reaching the age of 18.  Thus, if Edgehill Records was going to invest its significant resources in Miss Maddie Conrad, it would want to make sure that she could not terminate the contract at the age of 18.

            This is the exact situation Le Ann Rimes found herself in in 2000 when she tried to terminate her recording contract with Curb Records.  The label in that case had taken the extra precaution of having Ms. Rimes' minority removed by the Chancery Court in Nashville and by having a Texas court affirm the contract.  Courts in Texas and Tennessee refused to let Rimes set aside the contract for this reason.

            I constantly have to remind myself that Nashville is a soap opera (and that Deacon Claybourne does not live on Boscobel Street and is not my neighbor) but it would have been interesting if Jeff Fordham had been required to battle Maddie's contract out in court.  Next time maybe one of these guys will hire a lawyer.

Saving Studio A

            I am a preservationist.  I live in an historic district in a Victorian home that my wife and I have painstakingly restored and renovated.  I love old houses and buildings and hate to see them torn down.  That's my bias.

            At the same time, I am not an absolutist.  I studied historic zoning in law school and I know the Constitutional arguments pro and con.

            Like many Nashvillians, I was surprised but not shocked to learn that the RCA Building (which includes  Studio A) on Music Row was about to be sold.  I read Ben Folds' open letter to the powers that be trying to save Studio A from demolition. My wife and I attended a rally as Studio A on June 30 and listened to eloquent, impassioned speeches from Folds, Dave Pomeroy and many more people about the need to preserve the "music" and  Music City before it becomes Condo City.

            The very next day I read property owner Harold Bradley's stunning rebuke in a letter where he basically said that he and the late Chet Atkins had been trying to unload this piece of property for 24 years and that it had no historical value or cultural relevance whatsoever. 

            I have a great deal of respect and empathy for Harold Bradley but I think that he is mistaken.  Sometimes those involved in making history are not the best judges of their own contributions. 

            I spent the first 20 years of my career in various offices on Music Row.  Like most people who work there, I probably wasn't noticing the architecture because I spent my time driving through the alleys from building to building and  trying to avoid the tourists driving the wrong way down 16th Avenue South.  But I have always admired the RCA Building.  To my eyes, it is a great example of mid‑century modernism and a symbol of all things "Countripolitan"-the sound and the magic that Mr. Bradley, Mr. Atkins and their peers created.  To my mind it is important that we preserve the RCA Building just like it is important that we preserve the recordings that were made there and the stories of how those recordings were made and the people that made them.

            One of the things that struck me when I visited the RCA Building last week was that it was not a dormant relic.  Most of the offices looked occupied by living, breathing music businesses and the studio itself was large and vibey ‑ in that way that all great studios are.  More importantly, it was active. This is one of my main complaints in dealing with the developer versus historic preservation issue:  Why tear down something that is still useful and vibrant?  As Ben Folds alluded, it really goes to the fabric of a city.  Music Row is famous for reasons and the music business developed there for a reason.  There is positive energy created by all of these music businesses operating in proximity to each other. Music Row  is one of the first places out‑of-town guests want to see when they hit Nashville and as record companies and publishers vacate the area it's getting more and more difficult to find much to showcase ‑ the RCA Building and Studio A is a shining exception.

            Obviously, no one is suggesting that the building owners be stripped of their property rights but this is a wakeup call for a public/private discussion of the steps that could be taken to preserve this landmark building before it is too late.  Remember that Liverpool tore down the Cavern Club only to rebuild a replica across the street.  Memphis razed Stax Records only to rebuild a Disneyworld-like replica in the same spot because it realized its error.  Nashville does not have to make the same mistake.  Start the discussion.

Jim Fogelsong

I feel compelled to write something about my friend, Jim Fogelsong, who died a few weeks ago at the age of 90.  Although I certainly knew who he was, I did not know Jim when he ran MCA Records or Capitol Records in Nashville in the 1980's.  I got to know Jim when he took on running the music business program at Trevecca Nazarene University.  I think that I had already been teaching there as an adjunct  for a few years when he arrived.

Jim made a point of spending time with each faculty member, meaning, in my case, he would take me to lunch each semester.  I grew to really enjoy these lunches. Later, when he started teaching a music business survey course at Vanderbilt's Blair School of Music, he would invite me to come speak to his class each semester ‑ an offer which always included an early dinner at Noshville.

  During our meals,  Jim would tell me stories about working for RCA Records and Columbia Records in New York.  He once told me a great story involving Doug Sahm and another one about trying out for a major league baseball farm team.  I am a student of the history of the music business and I was fascinated when Jim told me that he thought  he knew the guy who invented the controlled composition clause.  I told him that he should write a book.  I think he said that he was too busy. I think he was 86 at the time.  It's a shame that he couldn't share his vast institutional knowledge with the world.

  Honestly, what impressed me most about Jim was his awareness and concern for his Trevecca students ‑ he knew their strengths, weaknesses, passions, family situations,etc.   He cared deeply about them and I found this remarkable.  As my friend, Kay West wrote about him last week , "the good in Jim Fogelsong was there for all to see."  It really was.  I feel lucky to have known him and I  will miss those dinners at Noshville.

Let us Now Praise Jeff Finlin

I have known Jeff Finlin for many years. I represented his band, the Fur Trade (our first meeting was worthy of Spinal Tap). That band morphed into The Thieves, who had a major label deal on the short lived Bug/Capitol label.  Jeff was the drummer and Gwil Owen was the principal songwriter in that band.  When the Thieves broke up, Jeff began showcasing his own song around town.  And what songs they were, Jeff had a voice and direction from his first record. It was a pleasant shock.

Jeff’s done a lot. From his first release on Pete Anderson’s Little Dog label, to releases on major British labels (like all great American artists his work is probably more popular overseas than in his own country) to a song in Cameron Crowe’s Elizabethtown. The impressive thing about Jeff is that he just keeps on doing it-putting out great record after great record. With little fanfare, he’s creating his own universe.

To my mind, his new album My Moby Dick may be his best. He’s working with producer /guitarist Joe McMahan, who has helped Jeff create a musical setting that perfectly suits the songs. It’s probably a cheap comparison but it reminds me of the kind of atmosphere that Daniel Lanois has brought to records by Dylan, Neil Young and Emmylou Harris. In a neat full circle moment, Gwil Owen designed the extraordinary collage cover art.  Jeff has also just published his first book of poetry (with some prose) called Time Less Travel. I believe the works are currently available as a set.

Jeff will be doing an in store at Gwil’s Howlin’ Books http://tripaldredgelaw.blogspot.com/2013/02/howlin-books-and-grimeys-too.htmlthis Saturday May 11 at 4:00 p.m.  To me, at least, this is special because it’s one of his first gigs after moving back to Nashville after an extended stay in Colorado. We’re lucky to have him back. Go see him. Buy a record; buy a book.