Musician's invest time, money and emotion into their musical works. A common trait arises with musicians, which is a lack of knowledge within the legal field and the avoidance of using lawyers to review or use contractual agreements. On occasion, disputes arise over who owns what rights in a song when multiple authors collaborate without a contract. These disagreements revolve around financial entitlements of the finished work based on the songs generated proceeds. Without a contract, it comes down to various legal tests to determine who contributed what and how to the song. These contributions can include but are not limited to 'singing, songwriting, and a variety of instruments played' during the songs phases of creation.
Musical work falls within the legal field of intellectual property being a 'creation of the mind, such as literary and artistic works'. Copyright is the legal recognition for musical works and provides a pathway for musicians to obtain an income for their music. Both national legislation, like the Copyright Act 1968 and legal precedent provides the source of these rights. In brief, these rights are 'reproduction, publication, communication and adaption'. The owner of these rights has final say over third parties ability to use their songs.
It is important to define musical work within Australia and what a song consists of. The Copyright Act 1968 lacks a definition; however, EMI v Larrikin provides to 'identify that part of the musical work that manifests its originality' and 'a melody, excerpt or phrase in a completed work is capable of manifesting originality'. Also, a song can consist of two parts which are essential to differentiate. A musical work is the melody portion while lyrics fall within a separate legal category known as literary works.
For joint authorship to arise in a musical work, the standard requirement is that two or more parties create the work. Once created, the parties are both copyright owners. North America, the United Kingdom and Australia all have different case law to determine the requirements for musician's entitlement to copyright under their respective legislation.
The Australian Copyright Act 1968 defines joint authorship as 'a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors'. Prior v Sheldon states 'a major creative contribution' is required for joint authorship in musical works. Prior selected the tempo, melody, and added multiple instruments like bass, drums and piano amongst other contributions which were approved by Sheldon. The Court found this to be 'a major contribution possibly the major creative contribution to the theme'.
The United Kingdom Copyright, Designs and Patents Act 1988 defines joint authorship as 'a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors'. The precedent case of Hadley v Kemp provided that joint authors make 'a significant and original contribution to the creation of the work'. Four years later Beckingham v Hodgens built off this in the creation of a three-part test: (1) Has the author collaborated in the creation of 'the work', (2) Did the author make a significant contribution to the work, and (3) Was the contribution separate. This case involved a non-band member writing and recording a violin intro part to the song 'Young at Heart' by the Bluebells. The non-band member Mr Valentino was found to be a joint author and was able to claim damages for copyright infringement when the song appeared in a Volkswagen commercial.
The definition of joint authorship in Canada is almost identical to the United Kingdom under the Copyright Act R.S.C. 1985. Neudorf v Nettwerk provides: (1) each author must contribute significant original expression to the work, (2) each of the joint authors must have intended their contributions to be merged, and (3) each of the joint authors must have intended that the other serve as a joint author of the work. Neudorf failed to fulfil multiple parts of this test. However, it is significant to note that being listed in any form of credit on the musical work will help fulfil the intention element of the test.
The US Copyright Act of 1976 uses 'joint work' which 'is work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole'. Childress v Taylor set out (1) 'contribution of each joint author must be copyrightable' and (2) 'the parties must have had the intent to be joint owners at the time that the work was created'. Janky v Lake County Convention applied this test to a doo-wop song and found that even a 10 percent contribution can still qualify a musician as a joint author on a musical work. The intent element was easily fulfilled in this case as credit existed as both authors were registered.
Moral of the story, joint authors, own their work in equal shares! Just make sure you contribute to the song and if possible, get your name on the credit. Preferably create the musical work in Australia where IP Partnership is located and more importantly, where the legal test does not require an intention element like North America. Better yet, to save yourself years of hassle in the court system get a written agreement in place before creating songs with other musicians.
With that said, if you are a musician, please do not hesitate to contact IP Partnership with concerns about copyright interests in musical work during the joint authorship process. We can put your mind at ease by walking you through the process, all while providing legal documentation in the form of co-writer agreements to ensure your copyright interests are protected. Thus, allowing the musician to do what they do best, create! Don't worry, if you missed the contractual stage of the joint authorship process, our intellectual property lawyers could still provide legal assistance at any point throughout a professional musicians career.
Michael Landau, 'Joint works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation' (2014) 54(2) The Intellectual Property Law Review 157, 167.
Ronnie Phillips and Ian Strachan, 'Breaking Up Is Hard To Do: The Resilience of the Rock Group as an Organizational Form for Creating Music' (2016) 40 Journal of Cultural Economics 29, 32.
Ronnie Phillips and Ian Strachan, 'Breaking Up Is Hard To Do: The Resilience of the Rock Group as an Organizational Form for Creating Music' (2016) 40 Journal of Cultural Economics 29, 41.
World Intellectual Property Organization, 'About IP', What is Intellectual Property (Webpage) <https://www.wipo.int/about-ip/en/#> ('About IP').
Shane Simpson and Jules Munro, Music Business: A Musician's Guide To The Australian Music Industry (Omnibus Press, 4th ed, 2012) 141; WIPO, What is Intellectual Property? (World Intellectual Property Organization (WIPO), 2004) 18.
Shane Simpson and Jules Munro, Music Business: A Musician's Guide To The Australian Music Industry (Omnibus Press, 4th ed, 2012) 143; Copyright Act 1968 (Cth) pt III.
WIPO, What is Intellectual Property? (World Intellectual Property Organization (WIPO), 2004) 19.
EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited (2011) 276 ALR 35 [11].
Shane Simpson and Jules Munro, Music Business: A Musician's Guide To The Australian Music Industry (Omnibus Press, 4th ed, 2012) 147.
World Intellectual Property Organization and China National Intellectual Property Administration, Intellectual Property Basics: A Q & A for Students (WIPO, Volume 1056 of WIPO Publication, 2019) 42.
World Intellectual Property Organization and China National Intellectual Property Administration, Intellectual Property Basics: A Q & A for Students (WIPO, Volume 1056 of WIPO Publication, 2019) 42.
Copyright Act 1968 (Cth) s 10.
Prior v Sheldon [2000] FCA 438, [64].
Prior v Sheldon [2000] FCA 438, [46]-[47].
Prior v Sheldon [2000] FCA 438, [64].
Copyright, Designs and Patents Act 1988 (UK) s 10
Hadley and Others v Kemp and Another [1999] EMLR 589, 643.
Hodgens v Beckingham [2003] EWCA Civ 143, [11].
Hodgens v Beckingham [2003] EWCA Civ 143, [5].
Hodgens v Beckingham [2003] EWCA Civ 143, [1]; Shane Simpson and Jules Munro, Music Business: A Musician's Guide To The Australian Music Industry (Omnibus Press, 4th ed, 2012) 218.
Copyright Act, RSC 1985, c C-42, s 2.
Andrea Rush, 'Y2K Canada The Year In Review' (2001) 48(3) Journal of the Copyright Society of the U.S.A. 449, 455; Neudorf v Nettwerk Productions Ltd [1999] 3 C.P.R. (4th) 129, 144, 153.
Neudorf v Nettwerk Productions Ltd [1999] CanLII 7014 (BC SC), [151].
Copyright Act of 1976, 17 USC §§ 101(2016).
Childress v Taylor, 945 F.2d 500, 501 (2nd Cir. 1991).
Janky v Lake County Convention & Visitors Bureau, 576 F.3d 356, 363 (7th Cir. 2009).
Janky v Lake County Convention & Visitors Bureau, 576 F.3d 356, 362 (7th Cir. 2009).
