The following scenario may sound familiar to you: you’re recording music in the studio and, due to a lack of budget, your producer agrees to take a share of your copyright royalties instead of cash up front. Or perhaps: the renowned producer you approach will only accept the commission if he is allowed to be listed as a co-author. However, such ‘gifts’ or concessions are less innocent than they seem, and can come back to bite you later. This is evident from the legal consequences attached to (joint) authorship.
(Co-)authorship in law
Article 165(1) of the Economic Law Code (“WER”) provides as follows:
“Only the author of a literary or artistic work has the right to reproduce or cause to be reproduced the work, in any manner or form whatsoever, whether directly or indirectly, temporarily or permanently, in whole or in part.
That right includes, amongst other things, the exclusive right to authorise the adaptation or translation of the work. (…)”
Furthermore, Article XI.168 of the same Code states:
“Where copyright is undivided (…) its exercise shall be governed by agreement. In the absence of an agreement, none of the authors may exercise the right separately, unless a court so decides in the event of a dispute.
However, each author remains free to bring legal proceedings in his own name and without the involvement of the other authors for infringement of copyright and to claim damages for his share.
The court may at any time make authorisation for the publication of the work subject to such measures as it deems appropriate; he may, at the request of the author who objects to the publication, decide that the latter shall not share in the costs and proceeds of the exploitation or that his name shall not appear on the work.”
Finally, Article XI.169 of the WER provides:
“Where a work has been created jointly by two or more persons, and where the individual contribution of each of the authors can be clearly identified, the authors may not, unless otherwise provided for in relation to this work, collaborate with any other person.
They shall, however, have the right to exploit their contribution separately, provided that such exploitation does not prejudice the joint work.”
As you can see, the law grants an author a great many exclusive rights. Only the author may authorise changes to their work. If several authors have written a work together – or at least claim to have done so – one author cannot simply make alterations to the jointly written work without the consent of the other author(s). This can lead to awkward situations should the authors no longer see eye to eye. In such a case, one of the authors can block the other author if the latter wishes to continue working on the piece. This is all the more distressing when the work was not actually created as a co-write, and the person causing the obstruction is, in reality, not even a co-author.
Think twice…
The situation outlined above can usually be avoided. In the case of a (genuine) co-write, a written agreement is essential if all authors are to have clarity about what is and isn’t permitted. If you are dealing with a producer or session musician who claims a share of the copyright, think carefully before agreeing to this! Co-authorship is only legitimate if they have actually made a sufficiently tangible contribution to the lyrics or music.
Grey areas
When assessing whether certain actions actually constitute a work (or a detailed version thereof), there are often situations that are not clearly defined in black and white. To what extent does a creative performance touch upon the essence of the work itself? When are interventions purely technical, or can they nevertheless be classified as a performance of a work (e.g. programming a drum machine) or even as a creation? For several years now, PlayRight has required producers to specify which instrument they are playing if they wish to be eligible for rights as performers, in order to clarify the distinction between (unprotected) technical acts and (protected) performances. When completing declarations as a performer or author, it is of course impossible to verify to what extent these reflect reality or whether they were completed under pressure. In principle, failing to complete a legally relevant document – such as a declaration – truthfully may even be subject to criminal sanctions.
Conclusion
If producers or session musicians claim a share of the authorship of your work, think carefully about whether this is justified. Authorship is more than just a signature on a declaration; it is of great moral importance (‘right of paternity’) and also has financial implications. Copyright must not simply be enforced as a means of payment by contributors who, in reality, have made no textual or compositional contribution to the work.