Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: If two songwriters collaborate and co-own their copyright in a song, can one writer issue a license for the whole song (assuming she accounts to the other for her share)? What if the other writer believes that the song was licensed for less than the prevailing market rate for that use? Can that writer sue the co-writer for destroying the value of the copyright? I'm so glad you asked. As to your first question, the co-owners share the legal rights to the song (assuming there is no agreement to the contrary). As joint copyright owners, each writer can separately grant permission (a license) for someone to use the song, provided that each writer shares the income with the others. Although each co-owner is entitled to receive money from the song, this doesn't mean that the two writers have to share money from the song equally. One writer may receive 30% of the income and the other may earn 70%. Each writer's share is usually based on the value of their contribution. This is a matter that is agreed on by the two writers. If the writers do not agree and the issue turns into a lawsuit, then a court will decide on the value of each writer's contribution. Courts often start with the presumption that all songwriters contributed equally.

As to your second question -- whether one writer can sue the other for licensing the song at less than market value -- we believe that it will be difficult to successfully assert this claim. Copyright expert Melville Nimmer reportedly argued that a co-owner has a duty not to "waste" a copyright. (This concept is borrowed from real property law in which a life tenant has a duty not to injure or waste the property.) However, our nation's leading copyright expert does not believe that a co-owner can assert this kind of claim. Even if you could make such a claim, keep in mind that you will have a heavy burden demonstrating that the value of the copyright has been depleted.

The Dear Rich staff believes there may be one caveat to these rules and that is if one songwriter licenses the first use of a song without the consent of the co-writer. Although copyright law does not explicitly require all writers to consent to the first recording, we believe that this approach is required because after the first recording, this first use triggers the rights of others to record the song under compulsory license rules.

(P.S. Here are some additional tips for songwriters.)

Dear Rich: I have a question. I will be having a political fundraiser for a candidate and I want to play "Blame it On Cain" by Elvis Costello before I introduce the main speaker. About 500 to 1000 people will attend. We're not making any money on the event, just taking donations. Do I need to get permission from anyone? I'm so glad you asked. If the venue at which you are holding your fundraiser has an ASCAP license, then no, you probably don't need to get permission. (An ASCAP license covers public performances of songs by ASCAP-songwriters like Declan Patrick MacManus.) If the venue doesn't have a license, or their license doesn't include your type of event, you'll need to obtain an ASCAP license. (Songwriters who are not affiliated with ASCAP are usually affiliated with BMI.) Of course, if you're hosting a national event, you may want to get the okay from the songwriter to avoid any negative post-fundraiser blowback.

If you do anything other than play the song, you'll need more. For example, if you create a political video using the song, you'll need a sync license. If you use the recorded song as part of an ad campaign, you'll need other permissions, including one from the performers (under a principle known as right of publicity.)  By the way, the fact that your fundraiser is nonprofit or for-profit won't make much difference in terms of your permissions. The Dear Rich staff could go on and on about these rules (we did write the book) but this Slate article says it more succinctly. 

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Dear Rich: I have a question. I read about an artist who is trying to get paid by the State of California. They're using his painting of a whale on license plates. I thought all images of animals were in the public domain. I'm interested because I'm a crafts artist and I'd like to replicate certain animal images on jewelry. I'm so glad you asked. I've written about one aspect of your question -- the copyrightability of art that borrows from nature -- in a Nolo article, so check that out. If you're too busy to get through the whole thing, I can summarize it by saying that the natural appearance of birds, bees, flowers, and the like are in the public domain. So if you're making wax candles that look exactly like a corn cob, or animal heads that look exactly like a leopard, you'll have a hard time claiming copyright.

But if you're going beyond an exact replication of an animal -- for example, painting an inspiring shot of a whale's tail as the animal dives into the water, or creating a whimsical bespectacled penguin that also understands IP law, your original expression is protectable and you can stop others from copying.

In regard to the whale license plate, the bigger issue seems to be that the artist made a handshake deal with the State of California. (Who knew states had hands?) As readers of the Dear Rich blog know, all arrangements transferring intellectual property should be in writing. Lacking any paperwork, the state's got a weak defense.

BTW, we almost quoted directly from the Associated Press story on the subject. As you're probably aware, there's no way the The Dear Rich blog is going to move beyond its current obscurity without being publicly chased by a big-time plaintiff (and the AP is a tempting, though unglamorous target). Alas, we decided to hold out for Mr. Right.

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don't place on this register will become "orphan works" that anybody can use without your permission? I'm so glad you asked. The answers to your questions are "maybe," and "not exactly." An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can't be found and the publisher doesn't want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher -- after performing a diligent search -- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their "good faith" search for the owner, (2) file a "Notice of Use" with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special "orphan works" symbol when the work is published.

Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They're worried that if a piece of artwork doesn't show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there's nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan ... since the artist and his work are easy to locate on the web (Steve, please don't sue).

Dear Rich: I have a question. I sell karaoke machines. Do I have to pay a separate fee to display the lyrics? Or does the fee I paid for the music cover the lyrics, too? I'm so glad you asked. Yes, you will have to get a separate license for the lyrics even if you paid the compulsory license fee for the music. That's because the display of the lyrics on the screen (in conjunction with the music) is considered an audiovisual work and requires a separate permission. That's the word from the Ninth Circuit in Leadsinger, Inc. v BMG Music Publishing (.pdf) (which harmonized California courts with New York karaoke case law). In Leadsinger, the karaoke company argued that displaying the lyrics was a fair use (claiming it taught users how to sing), but that argument didn't fly with the judges who must have been watching this.

And, to find out how you can license copyrighted materials like this,  see the latest edition of my book Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Nolo).