Co-writing for Artist-Writers with Record Deals
Whenever you co-write with someone not in your band (which could be a producer or another songwriter) there are some issues you have to be concerned about. Some of this may be a little too complex legally for most people to try on their own, but we will assume that if you have a record deal (which is when most of these issues come up) you will already have a lawyer or manager to help you. These are not all the issues involved, but if you cover all of them you will avoid a good deal of agina later on.
1. Splits: It seems obvious, but make sure there is no dispute about who wrote how much of the song.
2. Videos: You will need to be sure that the co-writer agrees to whatever terms are in your record deal that cover the synchronization license for promo music videos that are in your recording agreement. Assume that you’ll need to get a free sync license for promo music videos. “Promo music videos” can include YouTube which is technically a commercial exploitation but which throws off so little revenue that is may as well be promotional. One way to refer to this is “a free sync license for promotional or “YouTube-style” music videos”.
3. Controlled Compositions: See the previous post about controlled compositions clauses. If you are an artist signed to a recording agreement with a controlled compositions clause, you want to be sure that your co-writer accepts all the terms that apply to you. If you are the unsigned co-writer, be sure you understand all the terms of the controlled comp clause that apply to your song. You can ask for a copy of the "redacted" clause from the artist contract (and artists who do a lot of co-writing should have a digital copy of this clause ready to send out as it is a fair request).
4. Demo Ownership: Make sure you are clear about who owns the copyright in the demo recording. Remember—there are two copyrights in each sound recording, the sound recording itself (the demo) and the song that’s recorded (that you are co-writing). If you are the featured artist, you want to own 100% of the sound recording copyright in the demo. The percentage ownership of the demo and the percentage ownership of the song are two very different things and the ownership shares are independent of each other. Just because your cowriter owns 50% of the song doesn’t mean the cowriter owns 50% of the recording. This will become important if you use a pitching service for film and TV placements (“syncs”) and the licensee wants to use the recording of the cowrite. If you are signed to a record company, the record company will technically own the demo (or will take the position that they do).
5. Other Sync Licenses and Pitching: Aside from music video syncs, there is a whole world of film and TV licensing as well as advertising opportunities. These often require servicing a recording of your song to the film and TV supervisors or creatives at advertising agencies. There are people who operate these pitching services, and major labels (at least theoretically) do it themselves. If you co-write with a writer who either has a pitching deal or a record deal, you need to have an understanding of who can pitch the song and who can approve synchronization licenses. If you are the featured artist, you will want to have some control over who is pitching the song because if your co-writer pitches the song for a use you do not want to approve, that can create confusion in the film and TV licensing community and may result in your not getting considered for syncs you do want. (The conversation with the co-writer will go something like this: “Want do you mean the artist won’t approve it? YOU PITCHED IT TO ME!”)
6. Creative Commons: As usual, you have to be very careful not to write with anyone who intends to make your co-written song available under any kind of a “Creative Commons” license. The “CC” license does not work very well for professional songwriters, mostly because it is very poorly drafted and it is effectively irrevocable. See “Carefully Co-Writing Without Creative Commons”, Public Licenses: The Gift that Keeps on Giving (by Prof. Jane Ginsburg), Common Understanding (by ASCAP's Joan McGivern)