Who Owns the Band's IP? a Discussion of Who Owns a Musical Group's Intellectual Property in the Absence of Legal Agreements
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Who Owns the Band’s IP? A discussion of who owns a musical group’s intellectual property in the absence of legal agreements. Christopher S. Hoffmann J.D. Candidate, May 2020 Chicago-Kent College of Law Fall 2019 I. INTRODUCTION After months practicing in a smoke-filled garage, jotting down lyrical ideas during the morning train ride to your day job, and recording makeshift melodies into your iPhone’s Voice Memo application, you feel like you’ve finally made it: your band is in the studio recording its debut album. Pre-production demos with your producer went smoothly, and you’ve even gotten initial interest from a few small record labels in releasing your music. One morning, before recording vocals for the last song, your producer pushes past the glass door of the studio control room, fragrant dark roast in-hand, and asks whether your band has legal agreements in place. You assumed everything would be split equally among the four band members. What if your guitarist believes he should own a greater percentage of the songs because he wrote the music for six of the ten tracks the band is currently recording? Does your drummer own any of the music if his only compositions were the drum tracks he performed on the recordings? How about your producer – does he have an ownership interest in the songs for writing all the harmony vocals that the band members sang in the studio? If your bassist wrote the lyrics to half the songs, and your only contribution was singing on the studio recordings of those songs, does that mean you have zero ownership interest in half of your band’s material? Who, if anyone, owns the right to use your band’s name and logo? In the absence of legal agreements, ownership of a musical group’s intellectual property is divided. Potentially distinct sets of owners can exist for a band’s copyright in its musical works, sound recordings, and music videos. In addition, separate ownership may exist for a band’s trademarks, such as its name and logo. 1 Section II of this paper provides brief background on essential elements of copyright law before discussing who owns the copyright in a band’s musical works, sound recordings, and music videos when legal agreements do not otherwise account for ownership of intellectual property in those sets of works. Section III provides background information regarding trademark law before discussing ownership of a band’s name and logo in the absence of agreements. Finally, Section IV summarizes the findings of this paper and discusses the advantages of drafting a band agreement and contracts addressing ownership of a band’s intellectual property, as opposed to relying on the “default” settings offered by copyright and trademark law. II. COPYRIGHT The overarching goal for most bands is recording their songs for distribution. Whether songs are made available online, via CD, or on vinyl records, having their music available to the public allows bands to book shows, print merchandise, earn revenue and royalties from sales, and begin to build a following. Most bands, however, do not understand the importance of treating their group like a business. Young and inexperienced bands, who might begin creating music as a hobby before deciding to make it their careers, are especially unlikely to view their band as a business operation. As a result, the overarching majority of bands do not have agreements dictating their terms of operation. A well-drafted band agreement can cover any topic from “[h]ow to split profits from gigs” to “[w]hat to do if a band member wants to quit.”1 One of the most important subjects bands should address in their agreements is who owns, and receives credit for, the bands songs.2 When a band’s agreement does not provide otherwise, copyright law steps in to the void and provides default settings for how ownership of a band’s 1 BARRY IRWIN & ADAM REIS, BAND LAW FOR BANDS 4 (2d ed. 2016). 2 Id. 2 music is divided. Copyright law also fills in the gap when bands do not execute contracts allocating ownership of their sound recordings and music videos with the individuals who helped them to create those products. When bands fail to execute agreements dictating ownership of these important aspects of their intellectual property, the results supplied by copyright law are often murky and only declared by judges after intensive fact-finding and consideration of what constitutes a creative contribution to bands products. In many instances these default options will either include individuals outside the band, whom the band members did not personally consider shared owners in their works, or operate to exclude band members who have not made a significant enough creative contribution in the eyes of the law, but who made a significant creative contribution. A. Background: Copyrightable works and copyright ownership, joint authorship, and the two distinct forms of copyright that exist in the music industry In order properly to explore the question of who owns a musical group’s copyright in the absence of legal agreements, one must possess a basic understanding of certain applicable copyright law concepts and doctrines. Relevant copyright topics include information regarding copyrightable works and copyright ownership, the concept of joint authorship, and the two distinct copyrights existing in every publicly distributed song: copyright in underlying musical works and sound recordings. 1. Copyrightable works and copyright ownership The Copyright Act of 1976 provides copyright protection for (1) original works of authorship (2) fixed in any tangible medium of expression “from which they can be perceived, 3 reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”3 “Some minimal level of creativity” or originality is necessary for a work to be copyrightable.4 An “author” of a copyrightable work is the individual “to whom anything owes its origin; originator; maker; one who completes a work.”5 Works of authorship include musical works and any accompanying words.6 A work is “fixed” in a tangible medium of expression when “its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”7 In the case of a rock band seeking copyright protection for an original song written by one of its members, recording a song and putting it into digital format or CD is enough to satisfy the requirement of fixation. Initial ownership of a copyrighted work vests in the author or authors of the work.8 2. Joint Authorship A “joint work” in copyright law is a work (1) prepared by two or more authors (2) with the intention that their contributions be merged into “inseparable or interdependent parts of a unitary whole.”9 A leading treatise on American copyright law is quick to suggest, however, that the definition of joint works given in the Copyright Act is actually the definition of a work of “joint authorship,” because it discusses the creation of a work by multiple authors as opposed to the circumstances under which a work by a single author is jointly owned.10 “Inseparable” parts of a unitary whole have little or no independent meaning standing alone, whereas “interdependent” 3 17 U.S.C.A. § 102 (1976). 4 Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). 5 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57–58, (1884) (quoting Worcester). 6 17 U.S.C. § 102. 7 Id. at § 101. 8 Id. at § 201. 9 Id. at § 101. 10 Childress v. Taylor, 945 F.2d 500, 505 (2d Cir. 1991) (citing 1 Nimmer on Copyright § 6.01 (1991)). 4 parts of a unitary whole have some meaning standing alone but achieve their primary significance because of their combined effect.11 Independently-created music and lyrics merged with the intention of creating a song constitute a primary example of “interdependent parts of a unitary whole,” and the resulting work is considered a work of joint authorship if it is prepared by multiple authors.12 To achieve the requisite degree of intention for a copyrightable work to be considered a work of joint authorship, the authors must intend “at the time the writing is done” that their contributions be absorbed or combined into an integrated unit.13 Initial ownership of a joint work vests in its authors, who are considered co-owners of the work’s copyright.14 Some jurisdictions have interpreted the statute to impose additional requirements for joint authorship. Significantly, several jurisdictions require that each putative co-author’s contribution be independently copyrightable, even before the contributions are merged into a single work.15 Precedent in the United States Court of Appeals for the Ninth Circuit Court goes further, requiring that “authorship” itself constitute something more than an individual “making a valuable and copyrightable contribution” to a work.16 The Aalmuhammed v. Lee17 court laid out three factors it considered indicative when parties contributing to a single work are actually joint authors: (1) that purported authors “superintend” the work by exercising control and being “the inventive[s] or 11 Id. at 505. 12 H.R. REP. 94-1476, 120, 1976 U.S.C.C.A.N. 5659, 5736. 13 Id. 14 17 U.S.C. § 201. 15 See Childress, 945 F.2d at 507 (“It seems more consistent with the spirit of copyright law to oblige all joint authors to make copyrightable contributions, leaving those with non-copyrightable contributions to protect their rights through contracts.”); Erickson v.