When new guitarist rewrites old guitarist's parts, who owns what?
October 17, 2013 7:28 AM   Subscribe

A founding member of my 5 piece band was kicked out this summer, and we are going to rewrite 80% of his parts when we rerecord. We didn't like the old guitar parts and helped him write some of them, which is the main reason we wanted to part ways. He is now asking for equal ownership of the composition of songs originating from his tenure, and claiming that it is industry standard for the new guitarist who contributes new guitar compositions to get nothing. This seems very bizarre to me, but is he right? We all own an equal share of publishing and masters on songs that are already released.
posted by qzar to Sports, Hobbies, & Recreation (15 answers total)
(I'm not a copyright lawyer, just a layman who does occasionally deal with songwriting rights.)

So, funny thing about songwriting rights holding. The only parties who participate in rights holding on a composition are the songwriters. Think about Lennon/McCartney or Jagger/Richards. Although they may have agreements within the bands about how the income derived from the copyrights is distributed, from a pure rights holding standpoint, the other band members don't own the compositions and don't participate in songwriting royalties, regardless of their contributions to the recorded arrangements.

Did you copyright your compositions? Are they registered with your PRO? What was the split? This is the only question that matters.

Looking at your previous band question, it sounds like you guys operated in sort of a one-for-all situation, meaning that you probably consider that you all made equal contributions to the songwriting process. If the old guitarist is assumed to have participated in the songwriting, then he owns a portion of it (probably 20% unless there was an explicit prior agreement).

Let's be completely honest--most bands don't really need to worry about the royalty or licensing income derived from their compositions. But if you didn't sort it out before he left the band, and the numbers get big enough, you can be certain he can make a case for his input.

(In any case, the new guitarist owns nothing unless the songs are changed so substantially as to be entirely new compositions... which is unlikely.)
posted by uncleozzy at 8:09 AM on October 17, 2013 [1 favorite]

Yeah, this is a legal question. It belongs in the Law & Government section, for the limited purpose of some seeking some general information on these types of disputes. Without more information, it may be down to a close analysis of the facts, which calls for personalized legal counsel.
posted by snuffleupagus at 8:12 AM on October 17, 2013 [4 favorites]

and we are going to rewrite 80% of his parts when we rerecord.

You are making what copyright attorneys call a "derivative work". (This is no comment on the music itself.) The Wikipedia page gives you a pretty good explanation.

In short the creator of a derivative work - which must show some originality - has the right to the copyright. The former guitarist still has a right and interest in his original copyright - which it seems by mutual friendly agreement you give him credit - so he has a finger in your pie, but it is YOUR PIE.
posted by three blind mice at 8:17 AM on October 17, 2013

Just because he may have contributed to the creation of a few guitar riffs here and there doesn't mean he can claim authorship of those songs. And if your group is completely reconfiguring those riffs for a new guitarist, the new part couldn't even be considered a derivative work. It's hard to imagine how he could make a legal argument that the "final composition" form of the songs meaningfully included his authorship contributions. Even if your group continued to use guitar riffs that he had developed entirely on his own, unless he came up with the harmonic structure behind those riffs and unless those riffs were really the signature element that made those songs succeed, I don't see how he could win an argument in his favor. Presumably we're not talking about something like Keith Richard's lead-in to Gimme Shelter or the signature chords of Start Me Up, to make a few obvious examples of a guitarist's actual compositional contributions.

More to the point, what's he going to do? Sue you? For all that money you're going to be making off of these songs? With all that money he has to pay his lawyers? Just say "no" and let that be that.
posted by slkinsey at 8:38 AM on October 17, 2013 [1 favorite]

On re-read, I want to clarify that I didn't mean to be belittling in my last paragraph. More that I wanted to make the point that there is no use in even thinking about it until there is real money in play. Meanwhile, if there ever does come to be real money in play, the last thing you want to do is have some kind of agreement he can point to that makes him a part-owner of those songs. So you just say "no," and he's not going to do anything about it because there's nothing for him to gain right now. If there does ever come to be something in it for him and he tries to get money out of you, that's when you cross that bridge. Similarly, what would you guys do if your former bandmate started performing or even recording reworked solo versions of some of the band's old songs with his original guitar parts? Get a lawyer to write him a "cease and desist" letter? Sue him? Probably not, unless he started getting real attention or making real money by doing it.
posted by slkinsey at 8:54 AM on October 17, 2013 [1 favorite]

slkinsey has it right. It all comes down to money.

There is no definitive factual answer to your question in the law that does not involve the subjective assessment of similarity, unless perhaps you're playing his exact parts one octave higher or lower perhaps (in which case I could demonstrate similarity with a transcription).

The question is how much overall credit this guy asserts he deserves for the creation/writing of the composition, which cannot be broken down into its "parts" in a mechanical fashion. Normally, a "guitar part" is reducible to the question of "is the melody similar or different" in copyright litigation (I was once scheduled to be an expert witness on a very similar question before the parties settled out of court, in fact). You can't copyright the guitar tone or playing technique. Melodic similarity is a subjective question unless the notes are exactly the same (and even then), which means it has to be assessed by expert witnesses, a judge, and a jury in litigation.

And the bottom line is, a) are there any revenues worth protecting or pursuing with an advance agreement or litigation, or do you expect there might be in the future, meaning, beyond your hopes and dreams, do you really expect to sell at least thousands of copies of your record? and b) how seriously capable of suing you is this guy going to be? Does he have resources? Is he a published songwriter or represented by an agent or publisher or record company? Does he have a lot of lawyer friends who might be hungry for a little spec work? Etc.

It's always better to work these things out in writing in advance, and if you're not expecting big revenues, maybe throw him a bone with a small buyout that establishes his prior work as work for hire or with a promise of a small songwriting credit and thus future royalties if you actually end up making money.

Pop music history is full of fired musicians who have sued their bands over rights and royalties. Pursuing such matters in litigation is expensive and highly uncertain (cases are almost always settled out of court for that reason). Assess your risk, act accordingly.

Edited to add: I am not a lawyer
posted by spitbull at 9:20 AM on October 17, 2013 [1 favorite]

Also be aware that potentially, damages in copyright litigation can *far* exceed the actual amount earned by the copyrighted work in question to that date. The risk is not linear or symmetrical. I'd also consider how much you and your bandmates have to lose if you're successfully sued.
posted by spitbull at 9:34 AM on October 17, 2013

You need to consult an actual professional, a lawyer who specializes in entertainment/music and/or copyright law. This is seriously way too complicated and band-specific to get many useful answers out of AskMe.

As much as we might want to help, there's too much info missing from your question. Who has songwriting credits? Who's on the copyright? (Publishing is not quite the same thing as songwriter/composer credits and copyright owners.) Looking at your previous questions, it looks like your band is incorporated as an LLC - what were the terms of that partnership and how did you deal with your guitar player leaving that partnership? How much (if any) of this is on legal documents versus handshake agreements?

Whether "guitar parts" constitute a significant contribution to the songwriting is probably (legally) highly debatable, possibly depending on how well-known a song is, and I doubt any Not-Lawyers here have much access to previous lawsuits and court rulings and records of settlements to give you much guidance.

It's also not clear from your question whether you're talking about re-recording and re-releasing already released material or whether you're talking about new guitar parts in new material (which has already been written & recorded but not released), and I suspect that could make a big difference.

And then there's the fact that there are different types of royalties, and who gets what depends on what type of royalties you're talking about. Again, songwriting credits and copyright ownership can make a big difference, while OTOH any mechanical (CD/vinyl/electronic sales) or performance (radio/streaming "airplay") royalties that accrue from the previously released material that your old guitar player is on will go to him, and not your new guitarist.

I'm not suggesting that you pop back in and answer any of the above questions - I'm trying to demonstrate how your question is actually too complicated and case-specific to really get much useful here besides, "Lawyer up."

The real decision you have to make (as pointed out by slkinsey and spitbull) is whether there's a realistic chance enough money is at stake to make it worth lawyering up.
posted by soundguy99 at 9:38 AM on October 17, 2013 [5 favorites]

And one more thing, and your future lawyer will thank me:

Contrary to popular perception, an author has copyright in work the instant s/he creates it. There is no requirement to "file" for formal copyright. However, if none of you has yet paid the fee and mailed in the forms and the demo recordings to file for a formal copyright certification, *you* should do it *fast.*

What that does is it then requires your adversary to file for copyright protection on the same work. If they don't do so promptly, you could be at a significant future legal advantage.
posted by spitbull at 9:39 AM on October 17, 2013

Response by poster: Thanks for these really insightful answers. We're definitely trying to get everything in writing so as to avoid future drama should we ever make money off of these tunes... we had an original band agreement that stated that we'd all get equal share of revenue from the band's compositions that were "commercially released" during his tenure, which we are obviously going to give him. We kicked him out because we felt he was not pulling his own weight compositionally, and have since revised many an unreleased song.

He's now drafting a "leaving" agreement in which he's requesting these same equal shares for those compositions which we have not yet released, which will have for the most part completely different guitar lines (melodic, rhyhtmic, tonal etc).

I do hope to get some sync money on these songs once released (record deals and royalties would be great too!). He's a friend, I don't think he'd sue us but who even knows? I don't think any of us could prove our involvement in songwriting if we had to. I just want to be fair.
posted by qzar at 9:40 AM on October 17, 2013

band agreement that stated that we'd all get equal share of revenue from the band's compositions that were "commercially released" during his tenure, which we are obviously going to give him. [ . . . ] He's now drafting a "leaving" agreement in which he's requesting these same equal shares for those compositions which we have not yet released

Mmmmmmm . . . . I'm not at all sure that either you or your ex-bandmate quite grasp that there are actual U.S. Federal laws that cover a lot of what you're trying to negotiate, plus a whole pile of precedent, in the form of lawsuits won, lost, and settled out of court.

And while I'm no more a lawyer than I was an hour ago, my understanding is that if push ever comes to "I'll see you in court", some or all of your "agreements" will be thrown out if they don't actually comply with the law.

On top of that is the question of what's actually arguable in court - if your band agreement literally just states "equal share of revenue from the band's compositions that were "commercially released" during his tenure", that's got HUGE holes. There are many different possible sources of "revenue" from being in a band, and which band member gets what revenue from what source can be really complex, and is subject to the above referenced laws.

definitely trying to get everything in writing so as to avoid future drama

If you're really truly serious about this, then you want an experienced lawyer putting it in writing that complies with the law and that will hold up in court. You might not avoid future drama, but you'll seriously reduce the chances of it happening.

He's a friend, I don't think he'd sue us but who even knows?

Yeah, well, I'm pretty sure most of the lawsuits in the music business are between people who at one point considered themselves friends . . . . .

You need to consider the idea that your friendship could end over this.

I just want to be fair.

That's the thing, though - what you guys are negotiating seems (to me) to be in a highly uncertain area of "Who wrote what, and what constitutes "writing" a song, anyway?" and so getting some expert advice would help determine what's actually fair to all parties.

I'd also suggest you get your hands on a copy of This Business of Music. It's no substitute for an actual lawyer, but I think it might help you understand your legal rights and responsibilities and the contractual aspect of the music business a little better.
posted by soundguy99 at 11:39 AM on October 17, 2013 [1 favorite]

Basically if he was involved in any way with a song, even if it was rewritten, he's going to be able to make a claim to it. If I were in your shoes I'd give him a cut of all the songs he was involved in equal to the cut that everyone else involved in those songs is getting. He gets credit and a cut for songs he was in the room for, he doesn't get credit or a cut for songs he wasn't.
posted by Jairus at 1:00 PM on October 17, 2013 [1 favorite]

I'm not at all sure that either you or your ex-bandmate quite grasp that there are actual U.S. Federal laws that cover a lot of what you're trying to negotiate

I'd just second this. There are mechanical rights, performance rights, synchronization rights, publishing rights, and a whole bunch more. A few details here and here. Furthermore, some rights will accrue to the lyricists, some to the composers, some to the performers, etc etc. And it makes a difference whether you're doing any of this as a work for hire or not.

From your thumbnail description above, it sounds as though you're not even aware of all those different type of rights and their ramifications. (Though I'm perfectly aware you're giving a quick summary--maybe your actual agreement is super-sophisticated?)

As far as I understand you and your bandmates can make any and all sorts of agreements about all these various kinds of rights and assign them, give them up, sell them, or whatever. But it really is a thicket of complexity and you're not going to be able to navigate it cleanly by yourselves.

One thing you might consider--whether it is not simply easier and cheaper to just leave behind all those old compositions done in conjunction with this bandmate, and start anew. I know that sounds like a lot of work but I'm willing to bet that really, truly solving the rights issues could be even more work and definitely more expense.

If your compositions remain in obscurity, then it won't really matter (and will it really matter if you decide to leave those obscure compositions behind, in the case they are fated to always remain obscure?). But if you happen to win the lottery and your compositions do become very popular and profitable, then you're essentially guaranteed an expensive trip to court courtesy of your former bandmate.

Moving any particular composition to popularity/profit is always something of a gamble and a long shot. Personally I'd spend my time gambling with compositions that don't have this kind of encumbrance.

Plus from a philosophical viewpoint this fits into the "One you planned to throw away" category. It always seems sooo painful at the moment to throw things away, but with a new, improved bandmember I'll bet you'll be happier in the end with the material you start fresh now, far more so than the re-hashed older material. For both musical and legal reasons.
posted by flug at 1:34 PM on October 17, 2013 [1 favorite]

We kicked him out because we felt he was not pulling his own weight compositionally

On a more informal note, here is my take on what I would think is 'fair'.

Your description above is of a group compositional process. And in the particular sentence I quote above, you admit right there that he is part of that compositional process. A part you all are dissatisfied with, yes, but you can't be dissatisfied with something unless the person is actually and in fact, taking part in it. So he is one of the composers of all these pieces, by your admission and by the band's admitted practice at the time.

So a share of the compositional rights for all works that this person was involved in the creative process of, in any way (so basically all works that were even started before he left the group), is his fair due. That includes that works you have to re-has and improve later or whatever. Doesn't matter--if they were started when he was there, he gets a piece of them as co-composer.

Now if you could get him to agree to, say, a 50% reduced share on some of the newer things that he didn't much time on and that are going to take a lot more work to get into their final shape--well, that is something you could negotiate with him about and if he agrees, then fine. But if he doesn't agree, then he just gets his regular share.

So that takes care of him.

The new guy gets arranger or perhaps composer credit for anything he works on that was previously started, depending on how extensive the contribution is.

The new guy gets performer credit for all works on which he performs, whether new or old. (Whereas old guy gets performer credit for all works on which he performed, but if you keep performing old works after he is gone, then he isn't the performer any more so he doesn't get any performer credit there.)

Now how all that might work out in terms of rights and dollars is as different question. But thinking in terms of what he does/doesn't get credit for is at least a start.
posted by flug at 2:01 PM on October 17, 2013

You might also consider just changing the band name. Not a panacea for these issues, but potentially helpful as a demarcation.

Don't try to negotiate a 'leaving' contract like this without advice. What you are doing is analogous to dissolving a joint venture. Let him go naked if he wishes--don't play along. And don't accept his language without an attorney review.
posted by snuffleupagus at 2:31 PM on October 17, 2013 [1 favorite]

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