The different Copyrights that exist in a song, as well as ideas on how to draft a legal document for a collaboration
Legalities of Collaboration
By Lesego Sefako a.k.a Sir LSGIn the world of the independent musician, it has become increasingly important for artists to equip themselves with skills on matters that were once left for the record label to look after. The modern artist is not only a singer or producer, they are sometimes the agent, the PR specialist, the manager, and the lawyer just to name a few roles. Although I may not call myself a lawyer, I ought to know the insights of all my legal agreements as an artist. The main aim of this piece is to explain the different Copyrights that exist in a song, as well as give ideas on how to draft a legal document for a collaboration.
As artists, we are first creatives before anything else. We’re driven by the passion to create, that’s essentially what gets us going. Of the 50 most “Shazamed” songs in South Africa (in October 2020), 85% of those are a collaborative project between two or more artists, and almost all of the songs have got more than one person contributing to the tune. There is no doubt that collaboration is a significant driver of modern music, and can be beneficial to everyone involved, if done efficiently and justly.
In the exception of when there is some amount of money to be paid by one artist to the other for a collaboration, our creative nature is the reason why many artists get into collaborations first, before having legal agreements of what these collaborations will mean. Often once the music is done, it is only then we start the legal process of getting the paperwork done. On my debut album ‘Moving Circles’, I have collaborated with some of my friends in this manner. Luckily for me, I never had any issues with disgruntled co-collaborators, and I honoured the agreements. As you are about to learn, history has shown how bad things can get, when a song becomes a big hit and the legalities were not in order or in some cases, were non-existent.
In episode 12 of Bread4Soul CONVOS, I hosted the award winning producer Mpho Phoolo a.k.a 37MPH, and he mentioned a situation in his career were he had a verbal agreement (which is legally binding but hard to prove), with long -time friend & rapper JR, for a 3 album deal. The first album ‘The Main Event’ was a success, with two hit songs; ‘Gata Lenna’ &‘So Hot’. The second album was an even bigger success, which included the mega hit ‘Show Dem (Make The Circle Bigger)’ featuring the late H.H.P. 37MPH was however disappointed to not have been a part of that album, “which could have made me a millionaire”. JR did not honour his 3 album deal as he released this album through another label. The matter was settled out of court, and this did not only cause a drift between the two artists, but at the time it also ended their friendship (they have since “smoked the peace pipe”). Another matter I will not go into details with, that involves the same song by JR; ‘Show Dem (Make The Circle Bigger)’ is the much publicised Beef between H.H.P & JR soon after the music video of the hit track was released and after it was used by one of South Africa’s leading mobile networks on their 2010 World Cup campaign, which would have earned the artists a lot of money.
The point I’m raising with the above matters is that, it’s cool to do collaborations with friends, but it’s important to have a legal agreement between all parties. The first thing an artist needs to understand with regards to music contracts is the different copyrights that exist in a song, in order have meaning of their own contribution, and the rights that may arise from that contribution. On episode 13 of Bread4Soul CONVOS I hosted Katlego Malatji, an entertainment lawyer and the director of Tailor Made Legal Solutions. He explains that “Copyright is the Intellectual Property in the work, and vests automatically when you’ve written a song and reduced that song to words, if you have produced a beat and reduced that beat to a recordable format, or when you have written the musical notes to the song”.
Below is what Katlego describes as the default breakdown of a song’s ownership (keeping in mind that the below can be tailored to suit different kinds of agreements):
50% is The Master Right - Owned by whoever pays for the making of this song (Studio Time, Session Fees, etc).
50% is The Publishing - This is the Intellectual Property mentioned above. Owned by the creators of the music.
Publishing is further split into two parts:
25% is owned by the Composer of the music. In our days this would be the Producer (or whoever created the actual music)
25% is owned by the Author of the lyrics. This would be whoever wrote the words to the song.
I’m going to use one of my songs, Sir LSG feat. Ayanda Jiya - Sandcastle, as an example to put the above breakdown into context.
- As the producer, I have paid for the making of this song, meaning that I paid all the session fees, all the studio fees and all costs associated with the making of this song. Therefore, I own The Master Right, i.e 50% of the song.
- Assuming that I composed all the music in the song (which I didn’t), I will own a further 25% of the song (50% of the Publishing).
- Ayanda Jiya wrote all the lyrics to the song, she therefore owns the other 25% of the song (50% of the Publishing)
In a case where I composed the song with another person, let’s say Thandi Ntuli, who’s role in the song is co-composer and we both contribute equally to the composition, the Publishing split will be as follows:
25% - Sir LSG
25% - Thandi Ntuli
50% Ayanda Jiya
Knowing the above information, I can draft two basic agreements which highlight the above mentioned percentage splits, one between Ayanda Jiya & myself, the other one between Thandi Ntuli & myself.
While still using the above song as an example, the 3rd agreement I need to have is an agreement with any other session musicians who might have performed on the song but did not write or compose the song. (e.g. guitarist Simz Kulla, who’s paid a session fee to play guitar on the song). Simz has to give me, the owner of The Master, permission to use his guitar parts in the song.
Follow the Bread&Soul CONVOS on the Cav’ Platform. These are the publishing dates for the series:
May 2021 Legalities of Collaboration
June 2021 Music Publishing
July 2021 The Master Recording
In the exception of when there is some amount of money to be paid by one artist to the other for a collaboration, our creative nature is the reason why many artists get into collaborations first, before having legal agreements of what these collaborations will mean. Often once the music is done, it is only then we start the legal process of getting the paperwork done. On my debut album ‘Moving Circles’, I have collaborated with some of my friends in this manner. Luckily for me, I never had any issues with disgruntled co-collaborators, and I honoured the agreements. As you are about to learn, history has shown how bad things can get, when a song becomes a big hit and the legalities were not in order or in some cases, were non-existent.
In episode 12 of Bread4Soul CONVOS, I hosted the award winning producer Mpho Phoolo a.k.a 37MPH, and he mentioned a situation in his career were he had a verbal agreement (which is legally binding but hard to prove), with long -time friend & rapper JR, for a 3 album deal. The first album ‘The Main Event’ was a success, with two hit songs; ‘Gata Lenna’ &‘So Hot’. The second album was an even bigger success, which included the mega hit ‘Show Dem (Make The Circle Bigger)’ featuring the late H.H.P. 37MPH was however disappointed to not have been a part of that album, “which could have made me a millionaire”. JR did not honour his 3 album deal as he released this album through another label. The matter was settled out of court, and this did not only cause a drift between the two artists, but at the time it also ended their friendship (they have since “smoked the peace pipe”). Another matter I will not go into details with, that involves the same song by JR; ‘Show Dem (Make The Circle Bigger)’ is the much publicised Beef between H.H.P & JR soon after the music video of the hit track was released and after it was used by one of South Africa’s leading mobile networks on their 2010 World Cup campaign, which would have earned the artists a lot of money.
The point I’m raising with the above matters is that, it’s cool to do collaborations with friends, but it’s important to have a legal agreement between all parties. The first thing an artist needs to understand with regards to music contracts is the different copyrights that exist in a song, in order have meaning of their own contribution, and the rights that may arise from that contribution. On episode 13 of Bread4Soul CONVOS I hosted Katlego Malatji, an entertainment lawyer and the director of Tailor Made Legal Solutions. He explains that “Copyright is the Intellectual Property in the work, and vests automatically when you’ve written a song and reduced that song to words, if you have produced a beat and reduced that beat to a recordable format, or when you have written the musical notes to the song”.
Below is what Katlego describes as the default breakdown of a song’s ownership (keeping in mind that the below can be tailored to suit different kinds of agreements):
50% is The Master Right - Owned by whoever pays for the making of this song (Studio Time, Session Fees, etc).
50% is The Publishing - This is the Intellectual Property mentioned above. Owned by the creators of the music.
Publishing is further split into two parts:
25% is owned by the Composer of the music. In our days this would be the Producer (or whoever created the actual music)
25% is owned by the Author of the lyrics. This would be whoever wrote the words to the song.
I’m going to use one of my songs, Sir LSG feat. Ayanda Jiya - Sandcastle, as an example to put the above breakdown into context.
- As the producer, I have paid for the making of this song, meaning that I paid all the session fees, all the studio fees and all costs associated with the making of this song. Therefore, I own The Master Right, i.e 50% of the song.
- Assuming that I composed all the music in the song (which I didn’t), I will own a further 25% of the song (50% of the Publishing).
- Ayanda Jiya wrote all the lyrics to the song, she therefore owns the other 25% of the song (50% of the Publishing)
In a case where I composed the song with another person, let’s say Thandi Ntuli, who’s role in the song is co-composer and we both contribute equally to the composition, the Publishing split will be as follows:
25% - Sir LSG
25% - Thandi Ntuli
50% Ayanda Jiya
Knowing the above information, I can draft two basic agreements which highlight the above mentioned percentage splits, one between Ayanda Jiya & myself, the other one between Thandi Ntuli & myself.
While still using the above song as an example, the 3rd agreement I need to have is an agreement with any other session musicians who might have performed on the song but did not write or compose the song. (e.g. guitarist Simz Kulla, who’s paid a session fee to play guitar on the song). Simz has to give me, the owner of The Master, permission to use his guitar parts in the song.
Conclusion
As musicians we ought to take off the creative hat for a bit and see ourselves as a business. Legal work can seem like such a daunting task but if you have the correct knowledge of the different copyrights in the music you can very well draft a decent contract for you and your co-collaborators. In the following sections we will get into deeper details of the two copyrights; Publishing and The Master Recording.Follow the Bread&Soul CONVOS on the Cav’ Platform. These are the publishing dates for the series:
May 2021 Legalities of Collaboration
June 2021 Music Publishing
July 2021 The Master Recording
Copyright: Cav’ Platform / Goethe-Institut Südafrika
May 2021
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