I’m In A Band, But I’m Not The Songwriter…What The $!#$!

By George Howard
(follow George on Twitter)

We’ve spent a lot of time describing how important it is for songwriters to make sure they’re taking care of business with respect to their copyrights in order to make certain that they collect all the money they are owed when their songs are used.

We believe that the new TuneCore Songwriter Service is revolutionary in terms of collecting the money owed to songwriters, but, as you can see embedded within the name of this service – “songwriter” – the focus is on those musicians who actually compose the songs.

Undeniably, the deck is stacked in favor of the songwriter.  It is the songwriter who — until he or she transfers, assigns or sells it —  enjoys all the exclusive rights associated with the copyright that is created when an artist creates an original work and fixes it in a tangible medium (i.e. records it or writes it down).

This means that if you’re in a band — perhaps you’re the bass player — but you don’t write the songs, you likely will earn far less than the person (or people) in the band who did write the song.

For instance, every time the song is played (streamed) online, the writer gets paid; any time the song is used in a movie or a TV show, the writer gets paid, any time the song is sold as a download, CD, or vinyl, the songwriter gets paid.

Those members of the band who do not write the songs tend to get paid only a portion of money that is generated from live shows, and (if they’re signed to the label) revenue from the sale of the record or download.

Remember, labels pay two royalties: 1. A mechanical royalty that is paid directly to the songwriter when the label’s record that contains the song is reproduced and distributed. 2. An “artist” royalty that is paid to the person/people who is/are signed to the label — this is typically a percentage of either the list price of the record or the net profits (if any) the label makes from selling the record).

So, if you’re the songwriter in a band that is signed to the label, you are eligible to receive mechanical royalties and artist royalties; additionally, if the songs you wrote are used (as above) in movies/played on radio/etc., you get paid.  If, however, you’re in the band, and are signed to the label, but don’t write any of the songs, if you receive any royalty at all, it will be a percentage of the “artist” royalty — you will get nothing in terms of mechanicals or any other revenue generated from synchs, public performance, etc.

The sad part is that most people in the band (including the songwriter(s)) are completely unaware of this disparity until it’s too late.  Often, for instance, this disparity doesn’t become apparent until the bass player — still living in Mom’s basement — gets picked up for band rehearsal in the songwriter’s new car.

At a certain point, a light goes off, and the band members who aren’t writers realize that their income (or potential) income is vastly less than those of their bandmates who write the songs.

Bad things happen at this point.

This is where bands break up, or members leave, or members just “phone it in” because they know they’ll never be compensated in the same manner as the songwriters.

This is, of course, not just bad for those band members who don’t write, but also for the songwriters; they’re often left without a band (and/or their friends).

The importance of addressing this situation is increasingly relevant as there are more and more opportunities for songwriters to generate revenue from their work (and fewer and fewer opportunities for non-songwriters to generate revenue from sales/downloads).

Clearly, TuneCore’s Songwriter Service shows that there is money to be made and collected for songwriters, but what does one do if you’re not a songwriter, or if you are a songwriter who doesn’t want to lose his or her band.

Different bands deal with this dynamic in different ways.  Bands like R.E.M., for example, simply divide the copyright amongst the members irrespective of who wrote what for any song.  In this manner, each band member (whether he or she contributed to a song or not) receives the same amount of income when the song is exploited.

The flipside of this is bands like the Rolling Stones who engage other members (think Ron Wood) to be in the band, and pay them a fee.  Often, this fee is structured as a “work made for hire” agreement, which stipulates that even if the person in the band did contribute materially to a song, he or she forgoes any future income from that song, and, in fact, assigns all of his or her rights over to those who pay the work for hire fee (Mick and Keef).

These are the two extremes, but I believe there is a middle ground that may be appealing for many.  The R.E.M. option is a fantastic one if you are convinced that those in the band are crucial to the success of the band, and you can’t imagine the band going on without them.   The approach of the The Rolling Stones can work if you have enough money to compel musicians to forego any rights related to their creative output in exchange for a fee.  However, Many bands sit somewhere in between: the songwriter, for whatever reason, is unwilling to give up a percentage of her copyrights in perpetuity, and/or the songwriter(s) don’t have the money to pay the hired guns enough to make it worth their while.

One of the great things about bands is the esprit de corps, and so finding some solution that makes everyone feel part of the team (all for one, and one for all), without placing undue stress on the songwriter (relinquishing current or potential) income is crucial.

What I suggest is working with an attorney to create a simple “intra-band” agreement.  This agreement can serve a variety of purposes, and all bands should consider one.  In addition to being a general “operating” agreement that delineates how decisions get made within the band, how the money flows, etc., this agreement can also address the sticky wicket described above with respect to the potential economic inequities between songwriters and non-writers.

For instance, I suggest creating a clause in the intra-band agreement that stipulates that however long a band member is an active member (i.e. showing up at rehearsals, gigs, recordings, meetings, etc.) he or she will receive a percentage of any income derived from songwriting, irrespective of whether or not this person actually wrote the song/has any claim to the copyright of the song.  However, if the band member leaves the band (or is fired — and you’ll need to make sure you make clear what can cause someone to be fired) that member forgoes any future income generated from songwriting.

So, imagine, for instance, there are four members of the band, but only one writes the songs.  If you structure an agreement as I suggest above, the three non-songwriters would receive some percentage of the income derived from the exploitation of the songs (doesn’t have to be equal percentages, but it could be) so long as they’re active members of the band.

In this manner, the songwriter doesn’t have to assign any percentage of his copyright to the members, but instead just directs some of the income derived from the copyright to them while they’re in the band.  If one of the four band members above leaves, the songwriter can assign the leaving member’s share to the new band member.

The alternative stinks.  The songwriter divided the copyright with his bandmates so that each owns 25% of the copyright.  One of the band members leaves – taking with him his 25% of the copyrights.  Now, a new band member joins, and the three remaining members might have to divide the remaining 75% to include this new member.  In this case, the band member who left will have a higher percentage ownership of the copyright than the remaining band members!

Following the intra-band agreement approach, even if the band breaks up, the writer would retain his or her copyrights, and be able to form a new band without pieces of his or her copyright scattered around the island of misfit toys.

The other advantage of this intra-band agreement approach is that it gives incentive to the band members to stay in the band.  All bands go through bumps in the road, but those bumps can become mountains if the members don’t feel they are being fairly dealt with from a financial perspective.  The intra-band agreement rewards commitment, and its transparent nature obviates confusion.

So, as we hurdle towards increased ability to collect income from things like streaming music, and, one hopes, songwriters generate an increasing amount of revenue, it’s important to address this issue of making sure both the songwriter is protected, and the band members are given incentive and are compensated.

__________________________________________________________________________________________________________________________

George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is a Professor and Executive in Residence in the college of Business Administration at Loyola, New Orleans. He is most easily found on Twitter at: twitter.com/gah650

  • A Stickler

    The author is incorrect in implying that non-writing band members will receive only a percentage of the artist royalty and nothing from film/tv placements and radio play. For a film/tv placement there is a master fee (band) and a sync fee (songwriting). They are often equal in size. The master fee will be collected by the record company and shared with the band according to the record contract (often 50/50). Terrestrial radio play will not pay royalties to band members, but digital transmissions will (collected and distributed by SoundExchange, I believe 50/50 between record company and performers).

    • http://twitter.com/gah650 George Howard

      @3b6c4b58a1ce6e78b08f510204d14fcf:disqus  – you’re right, of course, that (assuming the artist who is signed to the label is recouped – big assumption, btw), income from master usage (etc) will flow through to those signed to the contract (whether they wrote the song or not).
      as you say, most of these deals are mfn, and thus the payment for the master will be the same as the payment for the synch. 

      additionally, yes, for digital public performance, the master holder and the featured performer are paid when the songs are b’cast in a non-interactive streaming fashion.

      thanks for adding this info. i left it out because i felt it diverted away from the publishing focus of the article (as you point out, these are both master issues). in any case, i’m grateful to you for making the point.

      Thanks,George

      • A Stickler

        Dear George, thank you for your gracious reply. I understand what you mean. However, playing devil’s advocate, I could also argue, that if the band members don’t get paid because of an unrecouped advance then please do count that advance as valid income. It does not matter when they get it, they did get paid.

        Plus the songwriter may well not have recouped his publishing advance either which would mean that the publisher who collects the sync fee will not pass on any of it and the songwriter will make the same zero dollars as the unrecouped band does.

        And public performance royalties (which would be payable by a PRO even if the songwriter had not recouped) are overhyped and overrated. Even if it’s a feature vocal performance and over 45 seconds long (which is hard to get), cable rates are likely to be in the tens of dollars and network rates are in the hundreds of dollars (but networks usualy only air once). If it’s less than 45 seconds and not a vocal feature the songwriter will get much much less (single dollar amounts on cable, less than a hundred bucks on a network).

        For single song placements, the sync fee almost always will be much more substantial than those mysterious public performance royalties. No reason to get jealous, dear performers out there! A great master recording is worth as much as a great song.

  • http://pulse.yahoo.com/_CKNVYD37C5OID26F4V4JGLSRPM CrypticS

    Thanks for the great post, first of all. I do have one question though that I feel hasn’t been clearly identified in any of the songwriter/copyright posts on the TuneCore blog. What defines a songwriter…what exactly does the songwriter do. I’m under the impression it is the person who writes the vocal melody and the lyrics because even if you take away the instruments it’s still the same song (i.e. a remix of the song). I’ve heard some people think it’s also the guitar chords underneath that make someone a songwriter (i.e. if the guitarist writes the guitar parts…they’re also a songwriter) because some songs start with a chord progression or a riff on guitar and without that the vocal melody may not have been written (so goes the argument).

    So either in a post or a comment could you please identify under U.S. Copyright Law who exactly the songwriter is, what do they do/contribute to the song to make them the songwriter, and does it matter in what way the song is written (i.e. guitar parts first, then vocals) and if so who the songwriters are?

    Thanks!

    • A Stickler

      U.S. copyright law does not define “songwriter”. It says that any author owns a copyright in his or her original expression the minute this expression is fixed in a tangible form (recorded, written down, painted). Chords in themselves would be hard to copyright for lack of originality. Many tunes are based on similar (some on identical) chord progressions. Riffs could probably be copyrightable, but if you play them to someone’s pre-existing song you’ll hardly get that person to share copyright with you. Things change a bit when you create a song with someone else with the intention to co-write (to create, together, an inseparable whole). In this situation the law will consider you co-authors (50/50 in the absence of a different agreement), but each of you still have to contribute original expression that would be copyrightable on its own. The best thing is always to have an understanding with someone you write: if you agree upfront to co-create a song together regardless of who writes what than there is no competition (“I wrote this, you only wrote that”). If someone comes into rehearsal though and has pretty much a finished song, you can’t claim co-writing just because you adjusted the chord progression a bit. In general, agreements, and especially written agreements, always save the day.

      • http://pulse.yahoo.com/_CKNVYD37C5OID26F4V4JGLSRPM CrypticS

        I was under the impression you could only copyright the vocal melody and lyrics. You didn’t exactly answer my question…does that mean a drummer can claim to be a songwriter because he changed a beat and in turn that altered the chorus?

        What my question in simplest terms is, is the person who writes the LYRICS and VOCAL MELODY the person who gets the full copyright? Or does it also include guitar? I don’t quite understand that since U.S. copyright law says only melody and lyrics are able to be copyrighted. How can you argue who wrote what if it’s a band?

        • Anonymous

          @crypticS

          honestly, you discuss, agree, argue and fight between the band members. Someone gets to claim ownership to the song. If the drummer thinks she wrote it, then she can get into a legal battle with anyone else that says otherwise
          jeff

          • http://pulse.yahoo.com/_CKNVYD37C5OID26F4V4JGLSRPM CrypticS

            Hi Jeff,

            Thanks for the reply. I understand that there will probably be a heated discussion, but how do you determine who wrote the song? Just because a drummer wrote drum parts to the song does that mean they receive credit for writing it?

            What if the lead singer writes the lyrics and vocal melody to every single song by the band? That’s just how the band writes. The vocalist writes all lyrics and vocal melodies, the guitarist writes the guitar parts, the bassist writes the bass parts, and the drummer writes the drum parts. Does that mean they are all songwriters and thus retain an equal share (25%) of the copyright (assuming 4 people are in the band) to the song? Or does the vocalist receive 100% of the copyright?

            I’m not talking about splitting up the copyright, I’m just trying to determine what a band member has to contribute to a song (i.e. lyrics and vocal melody) to be considered the songwriter in the band and thus claim 100% copyright of the song. If you can’t determine WHO the songwriter is by identifying what they exactly contribute to songwriting how can you identify who gets awarded copyright?

            For example, Jared Leto of the band 30 Seconds to Mars writes all vocals, lyrics, and chord progressions to all their songs. The other band members then go and work on the songs together and fine tune them but Leto writes the basis of what makes the song the song and thus receives 100% of the copyright.

            Sorry to keep asking the same thing over and over again but I feel like no one understands what I’m asking or isn’t answering it directly.

          • Anonymous

            @CrypticS

            I am sorry I am frustrating you with my answers, I really dont mean to.
            The answer is, its all subjective. If you believe you wrote part of a song the others that wrote it have to agree with you. If they don’t, then it becomes a legal battle and, if it actually ends up in court, musicologists and “experts” come in to argue why you are entitled to own a piece of the song. A judge then rules.
            The law says a song is “lyrics and melody”, and that can be a fuzzy line.
            If you believe you wrote 100% of the lyrics and melody, then you would claim 100% ownership of the song. If someone else disagrees with you, they would then argue, negotiate and/or, if they had oodles of money and time, sue you.
            there is not set formula or way of just simply determining it.

            jeff

          • http://pulse.yahoo.com/_CKNVYD37C5OID26F4V4JGLSRPM CrypticS

            Thanks Jeff, that makes a lot of sense. So in other words, because of that gray area you’re talking about it’s important to identify in a band agreement (as described in the original post) who writes what in the band: i.e. the lead vocalist writes all lyrics and vocal melodies, contributes guitar parts, etc. and etc. for each member of the band and then as a band you agree how that the copyright is distributed.

            Thanks for clearing all that up, I appreciate it!

          • A Stickler

            @ Tunecore and @yahoo-CKNVYD37C5OID26F4V4JGLSRPM:disqus
             
            I believe you are both incorrect in saying “U.S. copyright law says only melody and lyrics are able to be copyrighted.” and “The law says a song is “lyrics and melody”.

            Maybe you know something I don’t, but can you please point out to me which statute says only melody and lyrics can be copyrighted or which law or statute defines the word “song” as lyrics and melody?

            The law says that original expression in a tangible (fixed) form can be copyrighted. That really COULD be a bassline. Hammer and Rick James settled the case about Hammer using James’ signature bassline in “Can’t Touch This”. I believe a court would have found that bassline to meet the threshhold of copyrightability even though it’s “only” a bassline.

  • Mariag

    As a songwriter who has a band, this is a tricky situation because I have written and paid for dozens of professional demos before one of the songs is perfect for the band. If I were to attempt to recoup the money spent developing the songs that wouldn’t be fair to the band.

    For the band, we have an even split of touring revenue and then at the end of the year look at revenue from merch for a bonus. I use any money from songwriter income to continue to develop new songs. I don’t think the band should pay for it and that’s fine with them.

    We have not had a bit hit yet, but I’m sure everyone will be happy to pay for my development at that time. That idea doesn’t seem fair either as I don’t want to resent my band members for not paying for songs pre-hit.

    The truth is you never know if and when you will have a hit. So to get into arguements about it is not productive. At the time BIG money rolls in we’ll need to revisit the payouts, but monies from songwriting will remain in the song R & D category.

  • Da Palani

    Wow, wish I read this two years ago, I had the concept but didn’t execute quite so well. Fortunately, the person I worked with is great and I’m glad he gets paid even at my niave expense.
    But it’s a learning process, and like the article says, many don’t realize the complexicity of the music copyright law.
    “Share a little and it won’t be so lonely at the top!”

  • Donagh

    Good article! As a publisher, we have to explain this to almost every band we sign. Thos who split everything evenly regardless of who wrote what, almost always end up paying a chunk of royalties to the drummer who left a year later. It’s an issue that needs to be worked out from the very start.

  • burningfields

    This topic still just blows my mind. To think of all the great drummers, bass players, guitarists who have played on and contributed to many great songs and hits today who to this day get nothing but what they were paid for their session fee when they went into the studio. I myself have found it so frusterating to see recordings I have played on selling and making money today while I receive absolutely nothing. All because I am not the songwriter. You would think we would atleast get part of the ‘mechanical’. If we do or should please let me know!! Thank you for writing on this topic. It’s a pretty crazy one!

    • Donagh

      Yeah, but all the drummer/bassist etc did was to play the song that somebody else spent many hours, days, weeks writing. That’s their job in the band. You don’t hear any drums on the accoustic or accapella versions do you?

      What were you doing while the writer was writing? 

  • Conh Flama

    OK, Im going to mae a point blank question, to receive a point blank answer. By the way, TUNECORE RULES!

    FIRSTLY, there MUST be some kind of Copyright to the MUSIC ITSELF, because artists sue for another song’s MUSIC sounding similar to theirs..like Blurred lines and “Foxy Lady.(got to Give it up.)”But the MELODY NOR words are used.

    ok, Lets say I made the song, “Superfreak”. And I play piano. as you can hear, there is little heavy dudy boards in the song. Lets say I am in the band. And The BASS PLAYER starts playing the popular riff, over the drum beat! I say WAIT WAIT THATS GREAT!! And I start writing the melody we all sing to, and lyrics. Is the song now MINE? and I ALONE am the writer? A second illustration. I make a JAM. And I make ALL the music, because I have talent like PRINCE. and I make ALL the music. And I give it to my friend who makes a melody and lyrics, but the woman cant play a note. She calles it, “glamourous life” and its a smash. OBVIOUSLY the melody aint much and the SONG is driving that record. The copyright is HERS?

    And a last comment…which is an “in comparison”. Rock and roll has no sheet music, and therein lies the problem. My father was with the opera house. Those people have sheet music for EACH PART played in the orchestra. EACH PART is copyrighted. So lets say If I WROTE OUT each part for a band to PLAY OUT my two songs, Super freak , and Glamourous life. THAT BASS LINE is MY WRITING, not the singer who sang the melody “shes a very freaky girl…”. And it is ME that has to write all those parts cus I WROTE THE MELODIES OF THOSE PARTS..

    Songs like Sade’s Smooth operator. The drum pattern is unique. BECAUSE THERE IS NO SHEET MUSIC COPYRIGHTED, I can just make a song with the EXACT pattern?

    So this cumulates to 2 questions.
    How is it, a song that I WROTE THE PARTS that MAKE the record, and some chick makes a two note melody, is taking the money?

    And If She gets all the money, WHY CANT I JUST REMAKE SONGS, without the lyrics, and sell them without you guys (tunecore) questioning me about copyrights then?

    • http://www.colinjamieson.com/ Colin Jamieson

      It looks like you never received a point blank answer. Shame. I’m curious about this topic too.

      Where is the copyright boundary between fully composed instrumental music and a rock & roll original with a really unique guitar riff? I suppose this depends on the laws of the land, but is such a guitar riff covered by any aspect of copyright law if it was used in the recording of an original song – even if the song itself was written by another band member?

      (Every Breath You Take seems to be a classic example of this disparity of rights)

  • ‘Postrophe ‘Dernus

    Excellent article! I’m in the process of restructuring my band while using some songs that were written collaboratively with previous members (transferring of copyright ownership, etc). This has given me some great insight into how to approach things going forward, in order to prevent similar situations from happening in the future.