Do I retain 100% ownership of my original published instrumental in this scenario?

[misteraudio]

What is the name of your state (only U.S. law)? New York

I wrote an instrumental and published it to a number of social media sites. Several months later I was approached by a singer who wanted to create lyrics and vocal melodies for the instrumentals. These lyrics and vocal melodies were recorded after the song was initially published online as an instrumental. I am wondering if this has caused it to become a "joint work" or if it is considered a "derivative" work.

 

[adjusterjack]

Depends. What does your contract say?

 

[misteraudio]

No contract.

 

[quincy]

What is the name of your state (only U.S. law)? New York

I wrote an instrumental and published it to a number of social media sites. Several months later I was approached by a singer who wanted to create lyrics and vocal melodies for the instrumentals. These lyrics and vocal melodies were recorded after the song was initially published online as an instrumental. I am wondering if this has caused it to become a "joint work" or if it is considered a "derivative" work.

Far more facts need to be known to determine the copyright status of the works that have been created.

Did you license your work to the singer, providing limited rights for limited purposes? Or did you transfer through a written agreement any of your rights in the instrumental?

The singer might have retained 100% of the rights to her lyrics and vocals while you retained 100% of your rights to the instrumental - should an agreement between the two of you spell it out this way. But when authors combine two works to form one, the intention of the authors can be important when it comes to determining copyrights. These intentions are best spelled out in a written agreement so that there is no misunderstanding later between the parties.

Under the Copyright Act, when two or more authors create their works with the intention of combining them into a whole, that is a joint work. The authors can register the resulting work as coauthors and each will have equal rights in the work. Courts consider the rights to be equal absent a coauthor or collaboration agreement that changes the "equal" to a percentage of copyright ownership.

The combination of your instrumental with the lyrics and vocals would be considered a derivative of your original. A derivative is a work that is based on preexisting material that has enough creative material added to make it a new, original work subject to its own copyright. Creating derivatives is one of the exclusive rights held by a copyright holder so, in order for someone to create a derivative from your instrumental, your permission is required. If your work is used without your authorization, that would be copyright infringement.

I suggest that you and the singer/songwriter sit down and have a contract drawn up between the two of you that spells out all of your rights and obligations so there will be no confusion or controversy later.

If you choose to go ahead without an agreement in writing, you both will share equally in the resulting work. The singer can use the joint work as she sees fit and you can use the joint work as you see fit, as long as each of you share equally with the other any revenue that is generated from the joint work. Although this can be okay for some, this could also potentially cause a problem in the future if one of you does not like what the other is doing with the work.

Good luck.

 

[adjusterjack]

No contract.

Oops.

As you read the last two paragraphs of Quincy's comments I'd like you to consider the cost of litigation in the future should the two of you have a dispute over ownership of the material.

You'll want to nip this in the bud now by consulting an intellectual property attorney and reaching some sort of written agreement.

 

[misteraudio]

We don't have any written contract regarding the use of the instrumental. When I wrote the instrumental i did not do it with intent to merge with his work. I allowed him to create the lyrics and vocal melodies (not sue if this counts as licensing) after the fact. The work was created and published separately months before the singer came into the picture. What I'm trying to determine is whether or not the singer has any claim to the copyright on the original instrumental work.

IE: I sell copies of the instrumental, does he need to receive royalty?

 

[quincy]

The instrumental, absent any agreement to the contrary, still remains the property of you, misteraudio, and the lyrics/vocals still remains the property of the singer.

It will be the joint work that will share copyrights (again, absent any agreement to the contrary).

Having the matter reviewed by a copyright lawyer, and having this lawyer draft an agreement, is certainly advised. It is smart to move ahead with the protection of a written agreement as disputes over copyrights arise with some frequency.

And you should register both your instrumental work and the joint work with the Copyright Office.

 

[justalayman]

Far more facts need to be known to determine the copyright status of the works that have been created.

Did you license your work to the singer, providing limited rights for limited purposes? Or did you transfer through a written agreement any of your rights in the instrumental?

The singer might have retained 100% of the rights to her lyrics and vocals while you retained 100% of your rights to the instrumental - should an agreement between the two of you spell it out this way. But when authors combine two works to form one, the intention of the authors can be important when it comes to determining copyrights. These intentions are best spelled out in a written agreement so that there is no misunderstanding later between the parties.

Under the Copyright Act, when two or more authors create their works with the intention of combining them into a whole, that is a joint work. The authors can register the resulting work as coauthors and each will have equal rights in the work. Courts consider the rights to be equal absent a coauthor or collaboration agreement that changes the "equal" to a percentage of copyright ownership.

The combination of your instrumental with the lyrics and vocals would be considered a derivative of your original. A derivative is a work that is based on preexisting material that has enough creative material added to make it a new, original work subject to its own copyright. Creating derivatives is one of the exclusive rights held by a copyright holder so, in order for someone to create a derivative from your instrumental, your permission is required. If your work is used without your authorization, that would be copyright infringement.

I suggest that you and the singer/songwriter sit down and have a contract drawn up between the two of you that spells out all of your rights and obligations so there will be no confusion or controversy later.

If you choose to go ahead without an agreement in writing, you both will share equally in the resulting work. The singer can use the joint work as she sees fit and you can use the joint work as you see fit, as long as each of you share equally with the other any revenue that is generated from the joint work. Although this can be okay for some, this could also potentially cause a problem in the future if one of you does not like what the other is doing with the work.

Good luck.

Quincy, while I may be msinterting the situation, to me, it would appear there was no intent to create a joint work. Lyricist simply requested permission to use op's work and create a derivative work yet you stated it is treated as a joint work unless a written agreement states otherwise; why? Why wouldn't the music remain an independent work and the derivative remain music owned by op and additions owned by lyricist?

If it is deemed a joint work wouldn't that give lyricist the right to use only the music (sans lyrics) in other works without permission of op as owner of copyrights of the music?

 

[quincy]

Quincy, while I may be msinterting the situation, to me, it would appear there was no intent to create a joint work. Lyricist simply requested permission to use op's work and create a derivative work yet you stated it is treated as a joint work unless a written agreement states otherwise; why? Why wouldn't the music remain an independent work and the derivative remain music owned by op and additions owned by lyricist?

If it is deemed a joint work wouldn't that give lyricist the right to use only the music (sans lyrics) in other works without permission of op as owner of copyrights of the music?

It is a joint work if the intention of the authors is to create a single copyrighted work. It is a derivative work if a new work is created based on a preexisting work.

What misteraudio wants to do with the copyright ownership, and what the singer wants to do with the copyright ownership, will determine how the work should be registered.

If registered as a joint work with a contract spelling out specific ownership rights (e.g., misteraudio retains 100% of instrumental rights, singer retains 100% of lyrics/vocals, both share revenues from joint work 50-50), this can be done. It will simply be registered as a joint work and an agreement will spell out the specifics. If there is no agreement and the work is registered as a joint work, copyrights in the registered work will be shared equally and all revenues generated by this joint work must also be shared equally.

misteraudio could also license rights to the singer for X amount of dollars (or no dollars), with the license providing whatever it is misteraudion and the singer want and need it to provide. A license could allow the singer rights only to use the instrumental as it is recorded with her lyrics and vocals. The rights to use can be restricted, in other words. She could have 100% of all revenue generated from the work, if this is what they want, or perhaps misteraudio could have 20% or whatever. With limited licensing, misteraudio retains his rights and he can resell or use his instrumental for other purposes. The singer would be limited by the terms of the license.

Contracts are basically whatever two parties agree to, and these agreements can be fashioned to meet the wants and needs of the parties. But the exclusive rights of a copyright holder cannot be transferred to another without a written and signed agreement (i.e., a copyright holder cannot give to another any or all of his exclusive rights in a work, making another the copyright holder, without a written and signed transfer agreement).

And without any written agreement at all, the law will presume certain things.

So far, no copyrights have been transferred. Both misteraudio and the singer retain their exclusive rights to their own copyrighted material. There has been only an oral agreement between misteraudio and the singer allowing for the singer to use the instrumental in the single recording.

What happens now is essentially up to misteraudio and the singer. There are options. The available options, and their pros and cons, are best personally reviewed by a copyright lawyer.

But I think it is important for something to be in writing between misteraudio and the singer, to solidify the agreement and its terms, so, if a dispute arises, both parties can look at the written agreement and know exactly where they stand legally.

 

[misteraudio]

Let's say a dispute has arisen. There is no contract, and the other party expects 50% of ownership of pre-existing instrumental along with vocal work. Does the fact that the instrumental was existing and published protect my ownership of said instrumental (sans vocals)?

 

[justalayman]

Has a dispute arisen? Factual events are tough enough to deal with. Hypothetical situations are impossible.


When this new version was created, was there any discussion of it being a joint work or did the lyricist simply request permission (a license) to use your work and create a derivative?

Has your original work been registered with the copyright office? Has the joint/derivative work been registered? If so, as a joint or derivative work?

 

[quincy]

Let's say a dispute has arisen. There is no contract, and the other party expects 50% of ownership of pre-existing instrumental along with vocal work. Does the fact that the instrumental was existing and published protect my ownership of said instrumental (sans vocals)?

If a dispute has arisen over the work that uses the singer's lyrics and vocals and your instrumental, and this dispute cannot be resolved amicably between the two of you, then it can be up to a court to decide the copyright ownership. I suggest you speak to a copyright lawyer in your area before this winds up in court.

First, the singer cannot claim 50% ownership in your instrumental work when no copyrights have been transferred to her in a written and signed transfer agreement. All the singer could potentially claim is that the work is a joint work and she is entitled to use the work without your permission in any way she wants (as long as she shares 50% of the revenues generated by the work with you).

If a court sees the work as a derivative based on your grant of permission to the singer to use your instrumental, there is no license that indicates exactly what was granted. Again, however, without anything in writing, exclusive rights to the instrumental have not been transferred in part or in whole to the singer (nor have any rights in the lyrics/vocals been transferred to you).

What you have created (besides a mess ) is a work that has combined two separate copyrighted works into one work and this one work has its own copyrights. But neither of the contributors to the work have given up any of their rights to their underlying works.

Having agreements in writing is important for just this reason.

Again, sit down with a copyright lawyer in your area for a review - and I recommend you work to get this settled now before more complications arise.

Good luck.