Simple Song Co-Ownership Agreement

mick and keef:
two of our favorite co-owners

Dear Rich: Presently, I'm trying to memorialize some collaborations. One is a set of songs that I and a producer worked on. I wrote words and the melody, and he did arrangements based on that. One is a set of songs I and a producer worked on. I wrote words and the melody, and he did arrangements based on that.  The other is a remake I'm expecting to do with another colleague, on one of her earlier songs. I'm re-producing the track and writing new lyrics to it. 
Whatever you and the producer have agreed upon as songwriting percentages credit is fine. However, just so you're clear, the creator of the words and music (melody and chord structure) is usually considered the songwriter for copyright purposes. As you're aware, the term "arrangement" can have many meanings from the ordering of parts, to the styling and coloring of a music composition. But under copyright law, arrangements are only considered a songwriting contribution if they are material to the composition -- that is, if the arrangement is dictated by more than musical convention or tradition.
The co-ownership agreement. In any case, you and the producer should write up a simple co-ownership agreement that states each party's songwriting contribution and share. We've enclosed a bare bones co-ownership songwriting agreement with an optional arbitration clause. That should deal with the basic revenue-sharing issues that arise from co-ownership of songs. If you are also dealing with master recordings (a separate copyright), you would execute a similar agreements for the recordings. Also, this does not establish any sort of music publishing arrangement, it merely confirms that each of you are co-owners. And of course, you should also register the songwriting copyright application at some point. (There are instructions at the Copyright Office and in our Music Law book.)
The remake. If you’re writing new lyrics to an existing track, that’s different than the situation described above. You can probably use the agreement below to establish a simple revenue sharing arrangement (and hopefully you will give the song a title that distinguishes it from the previous composition). But the copyright application requires some attention as it's doubtful whether you're co-authors under copyright law (as explained in this previous entry). An attorney's assistance might be required when preparing the application.

Songwriting Co-Ownership Agreement

Introduction

This Agreement is made between _____[insert name and address of owner #1]_____ and _____[insert name and address of owner #2]_____ (the "Parties") as of _____[insert date agreement is to be effective]_____. The Parties wish to set forth their respective rights to and obligations for the musical compositions (“the Compositions”) listed below:

The Compositions

___________________________

___________________________

 ___________________________

 ___________________________

 ___________________________

 ___________________________

 ___________________________

 ___________________________

 ___________________________

Ownership Percentage Interests

The Parties to this Agreement are the co-owners of all legal rights in the Compositions described above. The percentage ownership interests of the Parties are as set forth below. Unless otherwise set forth in this Agreement, all money accruing from the exploitation of the Compositions shall be divided as set forth below, and all contracts we enter into for exploitation of the Compositions shall provide for royalty payments reflecting the percentage interests set forth below:

Name                                       Percentage Interest

_____________________      __________

_____________________      __________

Credit

The Compositions shall be credited as follows: _____________________________

Warranties

We represent and warrant to each other:

•  Each of us is free to enter into this agreement.
• Our contributions to the Compositions are original or all necessary permissions and releases have been obtained and paid for.
• None of our contributions infringe upon any copyright or other proprietary right of any other person or entity.
• We each agree to indemnify the other(s) for any loss, liability, or expense resulting from the actual breach of these warranties.

Arbitration [Optional]

The Parties agree that every dispute or difference between them arising under this Agreement, shall be submitted to binding arbitration at a location mutually agreeable to the Parties. Any decision or award as a result of any such arbitration proceeding shall include the assessment of costs, expenses, and reasonable attorneys' fees and shall include a written record of the proceedings and a written determination of the arbitrators. An award of arbitration shall be final and binding on the Parties and may be confirmed in a court of competent jurisdiction.

Assignment

Neither party may assign his or her rights or delegate his or her duties under this agreement without the other party’s written consent. However, any party may assign the right to receive royalties or other income from the Compositions by giving written notice to the other party.

Miscellaneous

Each Party shall act in good faith and not take any action which hinders the rights of the other parties. The provisions of this Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the Parties. If any provision of this Agreement is held to be invalid for any reason, such invalidity shall not affect the validity of the remainder of this Agreement. This Agreement constitutes the entire understanding between the Parties and can only be modified by written agreement. This Agreement shall be governed by the laws of the state of _____[insert state law that shall govern the agreement]_____. In the event of any dispute arising under this agreement, the prevailing Party shall be entitled to its reasonable attorney's fees.

MY SIGNATURE BELOW INDICATES THAT I HAVE READ AND UNDERSTOOD THIS AGREEMENT.

Signature __________________________    Dated: __________

Signature __________________________    Dated: __________

Copyright Recipes? 86!

one of our favorite recipes:
arepa sandwich from Victory Burger

Dear Rich: Our neighborhood watch committee is going to raise money with a street fair and food and we're also selling a cookbook that we're making on CreateSpace. One of the people contributing three recipes said he wanted the copyright on his recipes to be in his name. What do I do? Including a copyright notice on his recipes -- for example © 2014 Chef Jones -- would be meaningless because copyright doesn't protect recipes (and here's your proof). However, the complete collection of recipes (and additional text and photos) may be protected as a compilation copyright. And recipes that have not been publicly disclosed can be protected under trade secret law, assuming that they can't be easily reverse engineered.

Can Co-Writer Reprint Lyrics in Book

Lorenz Hart
(one of our favorite lyricists)

Dear Rich: If John (lyrics) and Mark (music) create a joint-work both owning 50% of the copyright, can John write a book of poems with his lyrics to the song in the book, without getting permission from Mark. If James (record company owner) owns the master, does John need to seek permission from James to use the lyrics to the song in a book of poems? Unless there is a written agreement to the contrary, each co-owner of a joint work has the right to commercially exploit the copyright, provided that the other copyright owner gets a share of the proceeds. So, if John reprints the lyrics as a poem, he would owe 50% of the proceeds from use (assuming there is revenue) to Mark. In other words, after the joint work is created, it no longer matters who created what -- either co-owner can use either contribution.
What about James? James may own a sound recording copyright (for the master recording) but that doesn't give him any dibs over the song copyright. This circular distinguishes the two.

The Case of The Partially Public Domain Character

Dear Rich: Help! I'm working on a graphic novel using Dr. Jekyll and Mr. Hyde and Sherlock Holmes. I thought Sherlock Holmes was in the public domain but recently read that some Sherlock Holmes is now in the public domain but some isn't. That made me wonder if Dr. Jekyll and Mr. Hyde were public domain? How do you know for sure which is PD and what isn't? Yes, Jekyll, Hyde and Holmes are in the public domain (although some Holmes is still protected as we'll explain below). Determining public domain status is not exactly elementary, but there is a method of figuring it out based on the year of publication in the U.S.  Basically, any characters that appeared in publications prior to 1923 are PD in the U.S. The Strange Case of Dr. Jekyll and Mr. Hyde was first published in 1886 and has therefore fallen through the public domain trapdoor (along with the characters within the covers). Sir Arthur Conan Doyle's characters appeared in approximately 50 stories published before 1923, and 10 stories afterwards. In the case you mentioned, Doyle's estate argued that the "whole character" was not formed until the final post-1922 work was published. The Seventh Circuit court of Appeals disagreed and held that the Holmes character who appeared before 1923 is PD -- so, you're free to copy him and Watson. But the remaining 10 works are still protected and you cannot use elements from these works -- for example, you can't reference the fact that Watson had a second wife. (Here's a summary of Sherlock's copyright history.)
BTW Dept ... If you're looking for more match-ups between public domain characters check out this site or this one.

Can We Use "Twilight Zone" Intro?

Dear Rich: I want to do a parody of the Twilight Zone, not mentioning Twilight Zone but have a Rod Serling imitator say the text. Can I lift direct script from the show, word for word? If I do, do I have to give credit? When is a script not copyrightable? Also: I love the opening lines of the move Fargo where they display in text: "THIS IS A TRUE STORY. The events depicted in this film took place in Minnesota in 1987. At the request of the survivors, the names have been changed. Out of respect for the dead, the rest has been told exactly as it occurred."I want to use this as a template for the video, while changing a few words... Is this ok to include, legally if you credit them, or too similar? If you copy the text from either Twilight Zone or Fargo, you're infringing copyright. (Twilight Zone debuted in 1959 and is still copyright-protected.) Attribution -- giving credit to the authors -- won't help your situation. However, if you're just borrowing the intros, for a transformative parody purpose, you're likely to be excused under fair use principles. We would go into a deeper fair use analysis but we feel like we've said it all here.

How Long Does Permission Last?

Dear Rich: In 2012 I sought permission to use a photograph, the permission was granted and the photograph has been on display for the last nearly two years. I used it again recently and the owner got really angry with me. I have all the written permission by him still, but I took the photo down anyway. However, was I breaching anything after actually having gained the permission? Is there an end to a permission? We can't say whether you're breaching anything -- only a judge or arbitrator could tell you that after considering your arrangement. But we do know that all good things must come to an end (unless they're in perpetuity).
Defining the term. Assuming, as you say, you have a written permission, it should spell out the term (the length of the agreement). If you meant that you have an oral agreement with supporting written documentation (emails, notes), that may also indicate the term. If you never agreed on a term, then a judge or arbitrator would have to infer the length of agreement from the behavior of the parties. For example, if you obtained permission to use a photo in a book, was it understood that permission was granted for all editions of the book or just a particular edition? If the permission was for use at a website, was it understood that permission was granted regardless of which page it was used on or was it limited to a specific URL? Was permission for a photo display limited to a specific show or gallery? In the absence of any evidence, a judge will consider the intent of the parties and trade custom.
What should you do? If there is a difference of opinion as to what was understood, you're in a typical dispute resolution situation in which you can (1) try and work it out yourselves (or hope it just disappears), or (2) you can mediate or arbitrate the matter depending on your budget. We're in favor of the first option.

Posting Cover Songs on Facebook

Dear Rich: I am posting videos of my band on FaceBook using songs that have been written and recorded by others. We are a small-time local band that is inconsequential in the larger scheme of things. I have posted a disclaimer that our band "claims no rights in any copyrighted work represented on this page. For informational purposes only." I saw something you said about YouTube, maybe the same words hold true for FaceBook, but I see versions of famous songs all over the place on both. Covering a song in a video requires a sync license and unfortunately, they're not as easy to obtain as a mechanical license (used to reproduce cover tunes as MP3s or CDs). The reason you see so many unauthorized cover tunes is that the music publishers who own the copyrights don't have the ability to chase every infringer (or choose not to go after an infringer for other reasons). For that reason, you can probably post cover videos at Facebook without getting hassled. But, should your cover video become a sensation, chances are good, a DMCA notice or a lawyer (or both) will appear in your future.
Your disclaimer. As we've said before, disclaimers are usually ineffective (and yours has a few problems). Even if you're not claiming rights in the underlying song, you are probably claiming rights in the copyrighted sound recording and video. That is, if somebody began making money reproducing your video without your permission, we assume you would pursue them. Also, claiming that the video is "informational" is confusing. Typically, such a claim is to distinguish it from being commercial and we don't think that's the case. Self-promotion is typically a commercial endeavor. We think you can ditch the disclaimer.
P.S. All bands are inconsequential in the larger scheme of things

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Can Government Official Put Copyrighted Work "On the Record"?

Dear Rich: I am a librarian and I was recently handed this question. A government official read a journal article and wants to know if he can “introduce it to the public record if it provides relevant information the government needs to make a decision.” I am trying to clarify what he means, but let’s take two possibilities: Hand out copies to his fellow councilors and their staff. Or: scan it into the minutes of a meeting, which would go up on the web. Is either of those okay? I know Congresspersons put copyrighted stuff in the Congressional Record sometimes, but I believe they have an exception. 
Government immunity? State governments are immune from copyright infringement lawsuits (sovereign immunity). So if the copying was done by a state official, the state could not be sued. Congress tried to change that but a district court ruled otherwise (although an individual state employee may be liable.) Local governments and the federal government (and their employees) can be sued for infringement for either scanning or passing out copies. (Passing out copies might make for a better fair use defense because it limits copying to a need-to-know group).
BTW Dept. If copyrighted material is placed in the Congressional Record, there are restrictions on reproducing it.

Can We Use YouTube Clips for EAP Nonprofit?

Dear Rich: I work for a non-profit Employee Assistance Program and we provide short-term therapeutic counseling for workplaces. As part of our services, we have a small training department consisting of two trainers and a catalog of approximately sixty trainings we developed on a variety of topics. Some of these have small clips, two-to-five minutes, of TV shows, movies or maybe a YouTube clip. With the TV and movies, we never use clips that could potentially spoil the plot or give away a surprise, etc. Nothing that would take away someone's desire to see the show or movie. We're glad you don't give away the plots but unfortunately that won't make any difference for copyright purposes. (Neither will the fact that you're a nonprofit.) If you're using other people's copyrighted content without permission, and it's not excused as a fair use, you're liable for infringement. As always, if it's unlikely that the copyright owners will learn of the use, then the risk to the EAP diminishes accordingly.
What about fair use? Your use sounds transformative -- you're commenting on the clip -- so that would be helpful for a fair use defense. On the other hand, the clips are much longer than what's usually excused (under a minute). Look at the four factors and see what you think, or better yet, check with a lawyer if that's possible. Remember, claiming this defense is not enough to stop a lawsuit. If the other side disagrees with you, only a judge or arbitrator can determine whether it's a fair use.

IPad for Stories: Educational Fair Use?

Dear Rich: I would like to use a single story from an anthology of stories in my 6th grade Humanities class. Our school has recently begun a 1:1 iPad program, so each student will have an iPad to use.  Therefore, I would like to scan the story and share it with my students through our password-protected school website. To my mind, this would be the digital equivalent of providing students with a photocopy of the story. Is scanning and sharing with students online off-limits, or would this fall under educational fair use? Unfortunately the educational fair use guidelines were written prior to the existence of iPad learning and they reference photocopying, not digital scans. The guidelines provide that a copy of a short story can be distributed to each student provided it meets the guideline standards of brevity and spontaneity. In terms of brevity, the guidelines limit copying to a complete article, story, or essay if less than 2,500 words or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less. (We summarize the rules here.) Although you can analogize to these rules, the proposed digital educational rules (no official consensus was ever reached) do not include a similar textual reproduction rule. In summary, there is no rule that clearly exempts your use. In any case, we don't imagine you'll run into a problem, particularly if access is password-protected and you can remove the copies from iPads (or terminate access). 

Post Production Documentary Fair Use

Dear Rich: We are in post-production on a documentary in which we use two campaign ads and limited news footage. One of the ads is an attack ad on one of our character (subjects) from 1996. We use about :20 of a :30 piece. Our character is in favor of using it as it demonstrates an outrageous lie against her and provides historical evidence of slander in political campaigns of the '90s. The other ad depicts one of the characters in his 2011 special election campaign. The ad is ironic and received a lot of criticism when it came out. Currently, we use a few seconds of it in slow-mo as a backdrop for text to describe his current efforts to limit regulatory over site, so we feel that the image and text are related; the ad helps to illustrate the point. However, in our long piece, we would like to show more of it. There are probably two different rulings that would be drawn, but we'd appreciate your input on that. In addition, we have a couple of seconds of stories from a variety of news sources used to illustrate coverage - or lack of coverage of specific events. Currently, we are using no more than 4 seconds of any news clip. Much of the voice is covered up with our own BRoll, but Sawyer and Jennings are both on camera for a moment before cutting away. If you are asking whether you will be embroiled in a lawsuit over these issues, we couldn't say. We do know that when politicians get mad over ads, they often lawyer-up (see our recent post).
Fair use? If you're asking whether we think you will prevail in a lawsuit based on a fair use defense, the meter probably leans more toward your side than towards the copyright owners. That's because -- analyzing the four four fair use factors -- your segments are relatively short (the shorter the better), your use of the material is clearly for the purposes of commentary, and your project doesn't seem likely to have an effect on the potential market for the copyrighted works. As always, this is only speculation and the costs of fair use litigation may overwhelm principles of free speech.
P.S. Dept. If you're planning on posting your documentary online, keep in mind that copyright owners can use DMCA notices to wreak havoc.

Can I Post FIFA Soccer Schedules?

Dear Rich: I run a non-commercial blog about soccer and being that the World Cup is less than a week away I would like to publish the schedule for some of the World Cup matches and use the names "FIFA" and "World Cup" (both are protected terms) on my blog. FIFA has released public guidelines, and it stated that "news media" are authorized to publish FIFA marks for non-commercial, editorial use. The big question for me is, as a blogger, am I considered part of the news media? Don't worry about whether bloggers are journalists. You are free to include the marks (even if you run advertising on the same page) because your blogging use is editorial/informational. (This article explains why.) You're also free to run the schedules, scores, and other statistics. If you are risk averse, you can include a prominent disclaimer at your blog stating that you are not associated with or endorsed by FIFA.

How Do I Register Cover Songs With BMI?

use Limelight when covering a song

Dear Rich: So, my first question is whether your answer to the question about registering a song with BMI and ASCAP is still the right information. I mean I signed with BMI but my co writer, the singer, he is with ASCAP. My second question is how do I register a cover song with BMI? I heard I can do that with Limelight. But if I do that with Limelight do I still have to register the cover song with the BMI or not? We stand by our answer regarding joint registrations at BMI and ASCAP. And as we indicated, if you run into problems, check with the performance rights organization: ASCAP Member Services (1-800-952-7227); BMI Member services (newyork@bmi.com (212-220-3000); Los Angeles losangeles@bmi.com (310-659-9109))
How do I register a cover song with BMI? You can cross that off your to-do list because you can't register a cover song with BMI or ASCAP. These performing rights organizations are for songwriters who are registering original songs. (They collect money when the song is played publicly). If you are covering someone else's song you would need a license from the owner of the song. Limelight is an organization that facilitates (for a fee) those types of mechanical licenses.

Star Trek Makeup and Emblems

Dear Rich: I wanted to get your advice on Star Trek costumes and Star Trek character makeup designs: Klingons, Vulcan's etc... I understand movie and television costumes are not protected under copyright law, but are the chevrons or emblems on the costumes protected under copyright or trademark laws? I have just completed an abstract comedy that involves actors from those Star Trek series. The actors play themselves not the characters they played in the series, but some extras or other actors who were not in the series will be wearing Star Trek uniforms in the movie at Sci-Fi conventions for example. Also, some actors and extras in the screenplay are wearing Klingon, Vulcan and other Star Trek species makeup from the Star Trek universe. Are the makeup design for those alien characters protected by copyright? Can CBS, Paramount or makeup artist sue because of such close resemblance? Or is makeup design similar to costume design? If they could sue me, would slightly altering these creature makeup designs negate copyright infringement? We've addressed the issues of copyright and theatrical costumes in a previous entry. As we noted there, the concern may be more about trademark infringement -- that the owners of Star Trek somehow endorse or are associated with your screenplay. This would also be the case for makeup and Star Trek emblems (although an argument might be made that creative makeup designs, like creative tattoos, deserve copyright protection). We can't predict whether CBS/Paramount Network television will see or care about your use, or whether they want to risk the wrath of fans by going after you. In any case, it appears as if your screenplay is within the parody/commentary universe which -- along with a prominent disclaimer -- may provide a strong defense for you on trademark and copyright claims (as it does for this film). In fact, you may wish to check out the DVD extras for Escape from Tomorrow for an interview on the subject with one of our favorite permissions authors.

Selling on Teachers Pay Teachers

Dear Rich: I am a teacher who creates many worksheets/handouts and I am looking to sell my work on a site called teachers pay teachers. When it comes to comprehensions or poems, where one creates a worksheet based on a text or written piece, how does it work in terms of copyright? If I find an online article that I want to use for a comprehension to create a worksheet and sell on TpT, and I give recognition to the person who wrote the article, will there be copyright infringement? I've got so many comprehensions that I have created based on articles/texts but not sure how to go about it. Articles published in the U.S. after 1963, are likely protected under copyright and reproducing them is probably an infringement regardless of the attribution. (Articles published from 1923 through 1963 may also be protected.) If you're only reproducing a small portion of the article, it's likely a fair use. If you're not reproducing the article at all -- just providing a worksheet and hyperlink, for example -- there shouldn't be any copyright issues. Keep in mind that as part of your arrangement with Teachers Pay Teachers, you must agree that your "content will not infringe or otherwise violate the copyright, trademark, or other intellectual property rights of any third party."
Who owns your comprehensions? There also may be a secondary issue whether you (or your employer) own the rights to your comprehensions. You probably do ... but the Copyright FAQ for Teachers provided at the Teachers Pay Teachers website explains this and other issues in more detail.

Compilation in Founding Father Letters?

Dear Rich: Universities and libraries often publish the collected papers of long-dead public figures, such as George Washington or Alexander Hamilton. If I quote one of their letters in a book, I'll want to cite the source of the letter that I took from a volume published by, say, a university press. But if I quote excerpts from several letters, do I need to seek permission from the press that compiled them? No, you don't need to seek permission. It's true that copyrights can be granted for compilations of public domain data, and it's also true that the universities that maintain these compilations perform a valuable public service, but we doubt that the collected papers of a founding father illustrate the type of selection and arrangement that rises to a separately protectable copyright. For example, alphabetical and chronological arrangements cannot be protected. All that might be protected are the compiler’s creative selection and arrangement of the letters (not the letters themselves). This is sometimes referred to as a thin copyright and is difficult to enforce.

What's Needed for EFS-WEB Filing of Design Patent?

Dear Rich: What documents do I need to file a design patent online? Do I only need drawings and specification? Or do I need to  upload the oath/declaration, too? Do I need the Application Data Sheet? Where can I find a template? Templates and detailed instructions on preparing and filing design patents can be found at the USPTO website or at our design patent website. To file a design application via EFS-Web, you will need: (1) drawings in black-line format, (2) a specification, and (3) an oath/declaration (PTO/AIA/08). You don't need the Design Patent Application Transmittal form (PTO/AIA/18) or the Fee Transmittal form (PTO/SB/17). You also don't need the Application Data Sheet if you elect to complete that form electronically by choosing that option as shown below.

If Lyrics Are Added Later ...

Dear Rich: I purchased and enjoyed reading your book "Getting Permission," but I can't find an answer to the following question: I am a lyricist, and a composer has asked me to write lyrics for his songs with the intention that we would each own 50% of the copyright in the resulting song (music + lyrics). I have done this with other composers and registered the song (music + lyrics) copyright in our names jointly. However, this composer wrote some of his songs years ago and already registered the copyright on the instrumental composition solely in his own name. For these songs, what's the best way for us to end up jointly owning the music + lyrics 50-50? I wondered if we need to sign an assignment agreement whereby he assigns 50% of his ownership in the existing music composition to me (and we'd register that assignment)....and then we'd file a registration for the song like usual where we each own 50% of the music + lyrics? I don't want him to continue to own 100% of the existing instrumental composition - I want to own half of that, just as he will own half of my lyrics. If you want to be a half owner of the instrumental, you will need an assignment of 50% of the copyright to the song.
Are you joint authors of the musical work? As for the version of the song with the lyrics, you can register this as a jointly-authored work provided that each of you prepared your contribution with the intention that it would be eventually combined (into a single song). Even if the composer didn't know you at the time of writing the instrumental, it can still qualify as a jointly authored work if the composer had always intended that words would be added. In that case, you can register the song as a jointly-authored musical composition. The law presumes that your shares are equal but its best to memorialize that arrangement with a collaboration agreement. Otherwise, confusion may occur.
If the composer did not originally intend to add lyrics ... In that case you can register the words and music as a musical composition as a derivative version of the original instrumental and list yourself as a co-owner (assuming composer assigns you a 50% ownersip interest).
P.S. Thanks for using Getting Permission, but we think Music Law might provide more help.