Who counts as a songwriter?
19 · · 13 min read · Español
A songwriter is somebody who contributed original expression to the song and whom the other writers intended to be a co-author. Both halves are required. The second one decides nearly every real argument, and it is the half nobody in the room is thinking about while the song is being written.
- United States law defines a joint work as one prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole, and the authors of a joint work are co-owners of the copyright in it.
- A qualifying contribution is original expression that could stand on its own as the subject matter of copyright. Ideas, direction, refinements and suggestions do not qualify, and copyright does not protect titles.
- The second requirement is mutual intent. The parties must have entertained in their minds the concept of joint authorship at the time the work was made.
- Courts weigh three kinds of evidence for that intent: who held decision-making authority over what went into the work, how the parties credited themselves, and what written agreements with third parties say about authorship.
- Canada defines a work of joint authorship as one produced by the collaboration of two or more authors in which one author's contribution is not distinct from the others', and the leading Canadian music case requires the same mutual intent.
Who legally counts as a songwriter?
A co-author of a song is someone who contributed original expression to it and whom the other authors intended to be a co-author. Two tests, both mandatory.
The statute is short about it. Section 101 defines a joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” and section 201(a) finishes the thought: “The authors of a joint work are coowners of copyright in the work.”
Co-owners, not owners of their own bits. Nobody walks away holding the verse they wrote — everyone holds a share of the whole song, and in the United States that share is equal by default no matter who did more, which is what the law hands you when nothing is written down.
Which is why this question is not a courtesy question. Adding a name adds a co-owner of everything, permanently.
What kind of contribution counts?
Original expression counts: melody, lyrics, harmony, a musical part somebody could write down. Ideas, direction, suggestions and titles do not count on their own.
The Seventh Circuit set the standard out in Erickson v. Trinity Theatre, adopting Professor Goldstein's formulation:
[a] collaborative contribution will not produce a joint work, and a contributor will not obtain a co-ownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright
The court put the practical version in one line: “To qualify as an author, one must supply more than mere direction or ideas.” And then the sentence to memorise before your next session, about a theatre company whose actors claimed they had co-written the plays: “Ideas, refinements, and suggestions, standing alone, are not the subjects of copyrights.”
That is not a judge being stingy. It is section 102(b) doing exactly what it says, which is refusing protection to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Ideas are free. That is the deal copyright makes with everybody, and it cuts against you on the days you were the one with the idea.
Titles fall out the same way. The US Copyright Office says it in six words with nothing hedged around them: “Copyright does not protect names, titles, slogans, or short phrases.” The person who named the song named the song.
Does everyone have to agree you are a co-writer?
In the United States, yes. The writers must have intended each other to be joint authors at the time the song was made.
This is the half people do not see coming, and it comes from Childress v. Taylor, where an actress who had researched a play, pitched it, and contributed ideas and some minor expression to it was held not to be its author at all. The Second Circuit did not require anyone to understand the law. It required that they “entertain in their minds the concept of joint authorship.”
The reasoning is stated plainly enough to quote at a session: “That equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors.” And, six pages later, the line the Seventh Circuit liked enough to borrow — “A playwright does not so easily acquire a co-author.”
Note what this does to the room. Two people can both make real contributions to one song and still not be co-authors, because co-authorship is a relationship, and a relationship requires two people to be in it.
What do courts look at to decide that?
Three kinds of evidence: who held decision-making authority over the work, how the parties credited themselves, and what written agreements with third parties say.
That framework comes from Thomson v. Larson, and the case is worth knowing in full because the facts are so unkind. Lynn Thomson was hired as dramaturg on Rent, worked intensively with Jonathan Larson on the script for months, and after his death claimed co-authorship. The district court found she had “made at least some non-de minimis copyrightable contribution,” and that her contributions to the libretto were “certainly not zero.”
She lost anyway.
She lost on intent, and each of the three indicia went against her. Larson kept final say over what went into the show. He billed himself as sole author and billed her as “dramaturg.” Her contract with the theatre workshop was silent on copyright and paid her a fee. On the first of those the court was direct: “An important indicator of authorship is a contributor's decisionmaking authority over what changes are made and what is included in a work.”
So the record you leave behind is the evidence. Credits, contracts, who had the final no — those are not the paperwork after the fact. They are the fact.
So being in the room is not enough?
No. Presence, encouragement, feedback, engineering the session and paying for it are not authorship, and a real creative contribution is not automatically an authorial one.
The Ninth Circuit made this point about a film, and it travels: in Aalmuhammed v. Lee, a consultant on Malcolm X who directed actors on set, suggested script changes that made the final cut, and worked on the edit was held not to be an author of the movie.
Everyone from the producer and director to casting director, costumer, hairstylist, and “best boy” gets listed in the movie credits because all of their creative contributions really do matter. It is striking in Malcolm X how much the person who controlled the hue of the lighting contributed, yet no one would use the word “author” to denote that individual's relationship to the movie. A creative contribution does not suffice to establish authorship of the movie.
The court traced the definition back to a photograph of Oscar Wilde. The lithographer who copied it made a substantial creative contribution; Wilde, posing, presumably offered some notes. The photographer was the author — the one who, in the Ninth Circuit's words, “superintended the whole work,” the “master mind.”
One honest wrinkle, stated once. The Ninth Circuit leans on that control element in a way the Second and Seventh Circuits do not, so the emphasis differs by where you are standing. Every one of them lands in the same place on the question this piece is about: contributing something real, and being an author, are two different things.
What about the producer who changed the whole song?
A producer is a co-writer on the same test as anyone else: original expression contributed to the song, plus intent on every side. Nothing about the job title changes the analysis.
What does change is which copyright is being argued about. A producer who shaped the record has authorship questions on the recording, and those run on their own rules and their own paperwork — the master is a separate copyright with separate owners. A producer who is not a writer is normally paid on the master side instead, in points, which touch none of the publishing.
The case that actually splits the room is the track. Somebody composes an instrumental, hands it over, and a topline goes on it. That instrumental is original musical expression, and the person who made it contributed to the song — the first half of the test is done. Whether they are a co-author still turns on the second half, which is the conversation nobody had because the beat arrived in an email.
Have it. Before the vocal is cut, not after the song lands.
What is different in Canada?
Canada defines a work of joint authorship by collaboration where one author's contribution is not distinct from the others'. The leading music case adds the same intent requirement the American cases use.
The statutory definition, from section 2 of the Copyright Act, is one sentence: a work of joint authorship “means a work 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.”
Nothing in there mentions intent. The British Columbia Supreme Court read it in anyway, in a 1999 decision about four songs on Sarah McLachlan's Touch. In Neudorf v. Nettwerk Productions, Cohen J. set out a three-part test — did the plaintiff contribute significant original expression, did each party intend the contributions to be merged into a unitary whole, and did each intend the other to be a joint author — expressly borrowing the third element from Childress.
Darryl Neudorf cleared the first two on one song and lost on the third. The court accepted that he had contributed original expression to the verse vocal melody of “Steaming” and that both parties intended it to be merged into the song. Then it found that McLachlan had never regarded him as a co-author, and that there was no evidence of a single conversation between them about splitting songwriting credits. Three minutes of talking, never had, decided a copyright.
One Canadian holding is worth more to this audience than the outcome. The defence argued, with expert evidence, that songwriting comes down to lyrics, melody and chords, and that anything else is not writing. The court rejected that, holding that significant original expression contributed to other parts of a musical work can support a claim of co-ownership too. If you produce, that sentence is the most useful one on this page.
Neudorf is a trial-level decision of one province's superior court, not a national rule handed down from the top. It is also the case anyone arguing this in Canada will be arguing about.
What do you actually do about it?
Settle it out loud before anyone leaves the session: name everyone who was there, name what each person contributed, and say who is a writer.
This is our recommendation rather than anybody's rule, and it exists because both failure directions are expensive and both are avoidable in about four minutes.
- Somebody claims and is not a writer. Say the boring true thing: “You were amazing in there, and that was production, not writing.” Then say what they are getting instead, and put that in writing too. The claim gets harder to make later, not easier, and silence today reads as agreement in eighteen months.
- Somebody is a writer and nobody asked them. This is the one that actually bites, because it is discovered by a registration conflict rather than by a conversation. The session player who invented the line the song is built on is not a hypothetical. Ask, in the room, while everyone still remembers who did what.
Then write it down on a split sheet and sign it — a signed sheet is an ordinary contract and binds the people who signed it, which is exactly as much as you need it to do. If somebody won't sign because they disagree about who wrote what, that is a different problem with its own order of operations.
Say it out loud, in the room, on the day. Write the fucking names down.
FAQ
If you only wrote the lyrics, are you a co-writer of the whole song?
Yes, where the words and the music were written with the intention that they be merged into one song. The authors of a joint work co-own the whole work in undivided shares rather than owning their separate parts, unless they agree otherwise in writing.
Does the person who came up with the title count as a songwriter?
No. The US Copyright Office states plainly that copyright does not protect names, titles, slogans, or short phrases, so contributing a title is not contributing authorship.
Can a session musician be a co-writer?
Yes, where the musician contributed original musical expression to the song and everyone involved intended them to be a co-author. Performing a part somebody else wrote is not authorship of the song.
Do you have to be in the same room to be co-writers?
No. The statutory test is the intention that the contributions be merged into one work, not physical presence. Writers who have never met can be co-authors, and people who sat in the room all day can fail to be.
Sources
- US Copyright Act, 17 U.S.C. § 101 — the definition of a joint work, and the intention that contributions be merged into a unitary whole.
- US Copyright Act, 17 U.S.C. § 201(a) — that copyright vests in the author or authors, and that the authors of a joint work are co-owners of the copyright in it.
- US Copyright Act, 17 U.S.C. § 102(b) — that copyright protection does not extend to any idea, procedure, concept or principle, however it is embodied in a work.
- US Copyright Office, What Does Copyright Protect? — that copyright does not protect names, titles, slogans, or short phrases, and does not protect ideas or concepts.
- Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) — the two-prong test, the requirement that the parties entertain in their minds the concept of joint authorship, and that a playwright does not so easily acquire a co-author.
- Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994) — the copyrightable subject matter test, that an author must supply more than mere direction or ideas, and that ideas, refinements and suggestions standing alone are not the subjects of copyrights.
- Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) — the three indicia of co-authorship intent, and the holding that a contributor found to have made a non-de minimis copyrightable contribution to Rent was still not a co-author.
- Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) — that a creative contribution does not suffice to establish authorship, the screen-credit passage, and the Ninth Circuit's superintendence or “master mind” reading of author.
- Copyright Act (Canada), section 2 — the definition of a work of joint authorship, as collaboration in which one author's contribution is not distinct from the others'.
- Gowling WLG, Joint Authorship: British Columbia Supreme Court Adds Intention Of Parties To The Test (6 September 2000, on Mondaq) — the three-part Neudorf test and its borrowing of the intent element from Childress.
- Robert Lesperance, Lesperance Mendes, Joint Authors: When Are Collaborators in a Musical Work Entitled To Share In The Copyright Of The Work? (PDF) — the findings on “Steaming,” the absence of any conversation about splitting credits, and the court's rejection of lyrics, melody and chords as the boundary of songwriting.
This is not legal advice, and authorship is one of the areas where the answer is most fact-specific: the same contribution can go either way on evidence nobody thought to keep. The two Canadian sources here report a judgment we were unable to open directly, and they are cited as reports of it. Every page linked above was read on the date at the top of this piece. If a real share of a real song is in question, talk to a lawyer in the relevant territory.
Keeping the register
Whatever you decide, the thing that has to survive is the record of who did what and who agreed to it — which is what CatalogTracker keeps. People are recorded as parties with roles from a defined contributor vocabulary rather than as a list of names, so “producer” and “writer” cannot quietly become the same entry; publishing and master splits sit separately per track with their own status; and every change is stored with who made it and what it was before. It decides nothing about authorship, because that is not a thing software gets to decide. It just means the answer you reach in the room is still legible in four years. In development for iPhone.