If the terms of your collaboration with another artist are not comprehensively laid out, it could sink your collaboration (and your friendship) in the long run. As a law clerk who works for a music-focused law firm (Randy Ojeda Law), I have assisted with multiple cases in which copyright ownership was not clearly established by the collaborating parties from the outset, and it always devolves into a mess. For instance, one party may claim that they are a co-author or that copyright ownership was transferred to them in whole or in part, and the other party may claim that they merely entered into a work-for-hire agreement. Without an agreement that unambiguously delineates ownership among the parties, the parties often end up arguing over the evidence they can present for or against co-authorship. This impacts the rights each party may legally exercise with regards to the work in question. It is much easier to settle issues of ownership before they arise than to dispute them down the road, especially if you are unfamiliar with the statutory requirements for different aspects of copyright ownership. Here are 3 copyright law questions that a thoroughly-drafted collaboration agreement can answer:
Disclaimer: for general educational purposes only. This blog post is not legal advice and does not create an attorney-client relationship. Contact a licensed attorney for personalized advice.
- Is your collaborator’s contribution a work-made-for-hire? If your collaborator is an independent contractor and not your employee (as will most likely be the case), your collaborator’s contributions to your song will not be considered work-for-hire (meaning your collaborator transferred their ownership interest in the work to you) under the 1976 Copyright Act unless all parties have signed a written agreement stating that the collaborator’s contributions are work-for-hire. The 1976 Copyright Act requires the parties to “expressly agree in a written instrument signed by them that the work shall be considered a work made for hire”; otherwise, the collaborator may be considered a joint copyright owner even if you only intended for their contribution to be work-for-hire. See 17 USC § 101. Assuming there is evidence to establish co-authorship (discussed below), following this statutory requirement is non-negotiable if you do not want the other party to be considered a co-author who shares your exclusive rights in the song.
- Have you legally transferred copyright ownership to your collaborator? A similar issue arises with transfers of copyright ownership. One party may claim that the other party intended to transfer copyright ownership to them by presenting chains of text messages or other verbal, informal evidence that indicates this intent. However, the 1976 Copyright Act requires all transfers of copyright ownership to be made in writing and signed by the copyright owner. See 17 USC § 204. Without evidence that both parties co-authored the song, attempts to effectuate partial or complete copyright transfers are meaningless if they do not comply with the requirements stated in the 1976 Copyright Act. A thoroughly-written agreement can transfer copyright ownership in all or part of a party’s exclusive rights. The 1976 Copyright Act clearly sets forth the language and methods that must be used in order to delineate copyright ownership between collaborating parties. To ensure that your collaboration agreement accurately reflects your copyright ownership intentions from the beginning, discuss your collaboration with your lawyer and get an agreement drafted.
- Is your collaborator legally considered a co-author? In many situations, you may want your collaborator to be a co-author, meaning that you both share the same exclusive rights to the song. To be considered a co-author, your collaborator must contribute ideas and document them with you during the creative process, with both of you deciding together on the ideas that will be fixed in the final work. Merely contributing ideas does not make your collaborator a co-author; both parties must share the intent to establish joint authorship and must actively participate in the creative process together. If you direct all of your collaborator’s creative contributions, and your collaborator has little to no creative input of their own that ends up fixed in the final work, your collaborator is unlikely to be considered a co-author. As a result, your collaboration agreement must assign joint ownership to your collaborator if you want both parties to jointly own the work. To avoid future disputes over co-authorship, your collaboration agreement should designate your collaborator as either a co-author or as a party whose contributions are made as work-for-hire.
Need a lawyer to draft your next collaboration agreement to comply with these statutory requirements? Email us (Randy Ojeda Law) at randy@randyojedalaw.com and sofia@randyojedalaw.com, and we can get started.