Legal Considerations When Co-Writing A Song: What You Need To Know

• Published date: 14 March 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Law Firm: Cox & Palmer
• Author: Mr Matthew Gorman

What constitutes 'songwriting'? What rights do songwriters have? Can a co-writer record the song or sign a synchronization license without the consent of the other co-writers? How do co-writers 'split' songs? What are the benefits of signing a written co-writer agreement? Does the legal stuff pertain to me?

Whether you co-write with your co-writer(s) in your living room, spontaneously in the studio, during a song camp, or via Zoom, you need to consider all the 'legal stuff'.

This area of the law in Canada is often misunderstood and songwriter disputes are, in my experience, quite common. As such, I wanted to take the opportunity to break down some key legal points when it comes to co-writing songs.

What is a 'Work of Joint Authorship'?

Under the Canadian Copyright Act, a 'work of joint authorship' means a work (i.e. a song) "produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors." In other words, if you write a song with a co-author, unless you sign an agreement to the contrary, the co-writers will own the entire song jointly (for example: the lyrics and melody will not be distinct parts unless agreed otherwise).

A frequently used analogy is that co-authoring a song is like cracking an egg and watching the egg white (lyrics) and yoke (melody) mix in an irreversible way. For example, subject to an agreement to the contrary, the co-writers do not own the egg white and yoke separately - they each jointly own 50% of the entire pan of scrambled eggs.

The case law in Canada suggests that the shares of a co-written work/song are held by the co-writers as 'tenants in common.' This is a fancy way of saying that, if you co-write a song, provided you don't assign your interest in the song to a third party (such as a music publisher), your interest in the song will pass to your estate upon death. Remember, copyright in a song lasts for the life of the author plus 50 years. As such, you and the beneficiaries of your estate could enjoy songwriting royalties for many years.

What Constitutes Co-Writing?

A 'joint author' of a song needs to establish that they made some significant original expression to the song, keeping in mind that the contribution need not be equal to that of the other co-writer(s). The conventional Canadian legal test for joint authorship also requires that there must be "joint labour in carrying out a common design."

One court case involving a...