The case for a collaborators agreement

By Paul Irvine

Every year, thousands of new songs are registered with SOCAN as co-writes, the result of songwriters working together to create unique combinations of words and music that the writers hope will capture the public’s imagination.

When it comes to establishing rights in a new song, co-writers and publishers often turn to SOCAN’s work registration form for guidance. This form sets out, among other things, the work’s title, date of registration, the names of the writers and publishers (“shareholders”), and the percentage share of ownership that co-writers and publishers have in the work.

However, even if everyone agrees to their respective ownership shares and files work registration forms for the new work, other situations might arise that could be addressed in a collaborators agreement. This sets out basic rules for the new work and provides a contractual means to further establish and clarify co-writers’ rights and avoid future misunderstandings. Consider the following possible issues.

• If the co-writers are recording artists, independent of one another, co-writer A may wish to be the first to record and release the song. Under a collaborators agreement, co-writers B and C could grant A the first right of refusal to record and release the work, and issue a so-called first-use mechanical licence to A or A’s record company for their respective shares. If this first right to record and release is granted, co-writers B and C might want to specify that it is exercisable within a specified time period.

• If co-writer A were under a recording contract that stipulates, for example, a reduced-rate mechanical royalty (i.e., a controlled-composition clause) and free synchronization licences for promo videos, would co-writers B and C agree to similar royalty reductions and concessions with respect to their shares? If so, should these be limited to the subject recording agreement only? Are there other limitations? Should the non-recording co-writer(s) enjoy the benefit of this right?

• Is the work one of joint authorship — in other words, are the co-writers’ contributions indistinguishable from the whole — or does the work consist of two separate copyrightable elements, such as the lyrics on the one hand and the music on the other? Joint writers in Canada cannot exercise rights in a copyright work without the agreement of the other(s), although this does occur in practice, sometimes to the dismay of the uninformed co-writer.

• Crediting: whose name goes first? Alphabetical order? Is it based on who came up with the initial idea or who made the greater contribution? Or is it a partnership of co-writers who choose a group name (The Matrix) or put the names in the order the writers feel they sound best (Leiber & Stoller, Lennon & McCartney).

• A co-writer and/or his/her publisher may ask for exclusive rights to administer the work, including the right to grant third-party licences and to enter into third-party agreements concerning the work. If these rights are granted, accounting and audit rights should be addressed, in addition to a right of approval with respect to certain uses of the work (in other words, moral rights). Collaborators are subject to their agreements with their performing-rights organizations (e.g., SOCAN), with the author’s share of public-performance royalties paid directly to the writer by that organization, and in accordance with the organization’s rules. The key is that the agreement of all writers must be obtained for joint works if a third party wishes to publish such a work.

• Will the co-writers share the cost of making demo or master recordings? If so, will they co-own the recordings? Are there limitations on the use of such recordings?

This is just an outline of some key issues to consider when drafting and negotiating a collaborators agreement. After all, why not establish the ground rules early?

Paul Irvine is an entertainment paralegal at Sanderson Entertainment Law (paulirvine@sandersonlaw.ca). The general information contained in this article is not intended as a substitute for skilled legal advice on specific contractual matters.

This article is reprinted with permission from the author.

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