Should Songwriters Share Credit with Band Members?

A recent issue of Rolling Stone named Martin Scorcese’s The Last Waltz the #1 music DVD of all time. [1] It chronicles late-'60s alt-country rock stars The Band’s final concert, interspersed with interviews and commentary recounting their impact on the music scene. [2] The magnificent film, however, neglects to answer one nagging, persistent inquiry: why did they break up? The answer, conveniently forgotten on the cutting room floor, involves the one topic around which all American businesses pivot: finances.

The graveyard of prematurely fractured bands seems littered with financial disputes. In a typical paint-by-number band, the lead songwriter crafts the majority of the songs. This can result in contentious relations among band members, as an immense amount of attention rains like a beacon upon one member of the group, who unwittingly becomes the former conglomerate’s ringleader. Increased fiscal returns often accompany this heightened attention, as the primary songwriter collects the lion’s share of the song-related royalties.

This, reputably, is what precipitated The Band’s demise. Lead guitarist/primary songwriter Robbie Robertson had amassed and squirreled away a considerable amount of royalties, enabling him to simply walk away from the group and maintain a comfortable existence by utilizing his existing funds and those that would continue to trickle in from the massive songwriting catalog he had cultivated (which included such Band staples as "The Weight," "Up On Cripple Creek" and "The Night they Drove Old Dixie Down"). [3] The other band members clearly wished to continue their venture, ultimately reuniting (sans Robinson) in 1983. [4] Band drummer, vocalist, senior member and founder Levon Helm’s hostility regarding the supposedly excessive credit allotted Robinson emerged in his biography This Wheel’s On Fire and most noticeably culminated in his refusal to attend the Band’s induction into the Rock and Roll Hall of Fame in 1994. [5] In a more recent example, popular rock act Matchbox Twenty recently lost their longtime rhythm guitarist Adam Gaynor, who claimed that the band’s three founding members received a disproportionate amount of the profits. [6] Clearly, despite the genre-spanning trend of declining record sales, the disproportionate dispersion of songwriting royalties can serve as the focal point for a great deal of contention.

The typical route to a hit song finds a lead singer or guitarist also serving as the primary songwriter of a rock group (Robbie Robertson for the Band, Ville Valo for H.I.M., Rob Thomas for Matchbox Twenty). He will bring the raw "backbone" of the song, often the lyrics and the main melody, to the group, who will assist in spawning the final version by attaching layers of input mined from their well-practiced instrument until a final product emerges. Often bands will labor together in a mixing room for days, weeks, or even months before presenting a final product that will, hopefully, emanate from radio speakers and populate iPods to the point that it will eventually beat a path to the top of the charts.

Then, the royalties start coming in. And so begin the heated arguments, as the songwriter receives the lion’s share of the songwriting profits despite the band’s collective creation.

Every recorded song inspires two copyrights: one in the musical work, and another in the sound recording. The "musical work" copyright belongs to the songwriter, and consists of a song’s main melody, chord progressions, structure and lyrics. [7] The "sound recording," or "mechanical," copyright consists of the embodiment of an artist/band’s particular performance of a song, usually captured on a master recording and referred to as a "phonograph." [8]

Thus, when a song begins receiving airplay, two sets of royalty payments arise. The first payment goes to the primary songwriter, who conceived the main lyrics, melody and backbone of the composition. Owning a song means, among other things, maintaining the right to perform the work publicly and distribute copies of it; thus, every time a song is played on the radio, "covered" by another artist or performed in some other manner, the songwriter receives a stipend. [9] Performing rights are given exclusively to the songwriter(s). [10]

The second payment results from the use of the mechanical right. Each musician holds a copyright in their particular performance captured on a recorded song, entitling them to a portion of the royalties collected from the reproduction and sale of that particular rendition. Those who hold the "mechanical" copyright in a song do not also retain a performance right; they only have a right to collect when a copy of their specific performance of the song is sold (for instance, when someone downloads the track on iTunes). [11] Songwriters amass further revenue through synchronization (a license to use a song in a movie or television show) and print revenue (from the sale of sheet music). [12]

In parsed terms, this means that every time "The Weight" appears on another movie soundtrack or compilation album, Robertson receives a rather sizeable payment for both his performance on the track and his composition of the song, while Helm receives a proportional sliver, a stipend for the appearance of his vocals and drumming on the phonograph. Does this align with the traditional concepts of fair play and distribution? Upon inducting The Band into the Rock and Roll Hall of Fame, the institute acknowledged that a large portion of their appeal derived from "the band members’ loose-limbed musicianship, and the conversational blend of voices from" three of the band members (note that Robertson never sang on Band records, and his microphone was not amped on The Last Waltz). [13]

Should band members besides the principal songwriter, whose input helped flesh a bare-bones song concept into a full-fledged masterpiece, receive proportionate songwriting credits? After all, their input is often critical to the success or failure of a track, and prove so integral to a song that it seems almost like stealing to deny that band member a portion of the songwriting credit. Would the Eagles’ classic "Hotel California" have the same impact without Joe Walsh’s extended stylings at the end of the track? How about "Wipe Out" without the drum solo?

Was Robertson truly the sole mastermind behind the Band’s extraordinary success? Could "The Night They Drove Old Dixie Down," composed by a Canadian, really have integrated so much anguish, nostalgia and disappointment on one track without the input of Helm, the one Band member who actually hailed from the United States? [14] The track chronicles one Southern man's musings about the Civil War. Surely when helping materialize the lyrics and present the percussion, Helm had some input as to the ultimate vocal styling of the track. [15] Robertson receives a windfall every time a subsequent artist covers the song or includes it on a compilation, but these second-comers would not have been motivated to take such actions without Helm helping to make the track a hit.

Sometimes, contentions about how to arrange and formulate the final version of a song escalate to the point that singer/songwriters initiate a solo career to obtain the liberty to release their songs in a manner they deem most appropriate. Pursuant to his massive success collaborating with Carlos Santana on a track called "Smooth," Matchbox Twenty’s Rob Thomas put the band he co-founded on temporary hiatus to issue a solo record. He felt the need to create a disc of his own compositions over which he could employ absolute control. He says band members often strike tracks he wished would stay on the record, or alter them to the point that they no longer comport with his initial vision. [16] The list of singer/songwriters who disentangled from their former coworkers to seize a greater control of their destiny could fill a tome: Glenn Frey and Don Henley of The Eagles; Robert Plant from Led Zeppelin; Robbie Robertson, Rick Danko and Levon Helm from The Band; Gwen Stefani from No Doubt. The issue is epidemic.

Simply considering this fact - that songwriters have to disengage from the coworkers who helped make them famous to maintain the integrity of their compositions - it seems clear that a song’s framework consists of more than its lyrics and basic melody, as the current copyright regime defines it. [17] Shouldn’t the entire band, having helped mold a bare stem into a bouquet that the public adored, share in the songwriting credits?

Copyrights are infinitely divisible and assignable, so the primary songwriter could share the profits if they so desired. [18] Yet many seem wont to do so, which means the law must afford some sort of protection if it is indeed justified. A well-oiled and long-hardened principle of copyright law considers the addition of harmony to a particular melody a derivative work. [19] Derivative works are copyrightable if they do not affect the scope of any copyright protection in the preexisting material, and their copyright only extends to the non-trivial aspects contributed by the second authors. [20] Harmonic additions are generally deemed trivial. Yet, how expendable can they be, if their addition causes record sales to climb and a band’s profile to shine? Are we not undermining the very goal of copyright law by encouraging non-songwriting band members to refrain from proposing the cream of their ideas for fear that another will unduly reap the benefits? Might the world have been graced with a Band reunion before the untimely death of two members if Helm has received the songwriting credit to which he felt entitled?

^{[1] Peter Travers, Top 25 Music DVDs, RollingStone, October 4, 2007, at 47.
[2] Id.
[3] Barney Hoskyns, Across the Great Divide: The Band and America 370-1 (2006).
[4] Jeff Ramarkn, History of the Band, http://theband.hiof.no/history/postscript.html (last visited October 5, 2007).
[5] Hoskyns at 407 ("Helm has long maintained that Robbie Robertson took more credit for The Band's music than he deserved..."); Rock and Roll Hall of Fame, The Band, http://www.rockhall.com/inductee/the-band (last visited October 5, 2007).
[6] Adam Gaynor Home Page, http://www.adamgaynor.net/.
[7] See 17 U.S.C.A. §115 (West 2007).
[8] See 17 U.S.C.A. §101.
[9] See 17 U.S.C.A. § 106(4).
[10] Heather McDonald, Performing Rights Royalties, http://musicians.about.com/od/glossary/g/prr.htm (last visited October 5, 2007).
[11] Heather McDonald, Mechanical Royalties, http://musicians.about.com/od/glossary/g/mechanicalroyal.htm (last visited October 5, 2007).
[12] Robert R. Carter, Sources of Publishing Income, http://www.musesmuse.com/robcarter-art.html (last visited October 5, 2007).
[13] Rock and Roll Hall of Fame, The Band, http://www.rockhall.com/inductee/the-band (last visited October 5, 2007).
[14] Richard Skelly, Levon Helm, http://wm11.allmusic.com/cg/amg.dll?p=amg&sql=11:3nfuxqr5ldde~T1 (last visited October 5, 2007).
[15] Peter Viney, The Night They Drove Old Dixie Down (revisited), http://theband.hiof.no/articles/dixie_viney.html (last visited October 5, 2007).
[16] Christina Fuoco, LiveDaily Interview: Rob Thomas, LiveDaily, June 1, 2005, http://www.livedaily.com/news/8230.html?t=98.
[17] See 17 U.S.C.A. § 201(d)(2).
[18] See 17 U.S.C.A. § 201(d)(2).
[19] Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 167 (S.D.N.Y. 1993) ("a composter generally creates a harmony to accompany a particular melody, as opposed to developing harmony in the abstract").
[20] Durham Industries, Inc. v. Tomy Corp., 630 F. 2d 905, 909 (C.A.N.Y. 1980).}

Comments

[Zach]

I enjoyed this article as I am in a band on the rise and we're just now discussing this subject in a very serious way. Where the true tension lies on behalf of the "songwriter(s)" is that fact that they put more time into the music and less time into their personal lives to craft the backbone and/or lyrics to the record, while other bands members only had to show up to rehearsal and inject smaller amounts of creative input to complete the piece. The tension on behalf of the "non-songwriters" in a band typically comes from their understanding of how their personal touch on the music is a distinction from the songwriters vision and warrants compensation. However valid as each argument may seem, in my opinion one does not equal the other. I see a majority of bands today in it for the money-dream that is sold via MTV. They quickly learn the harsh realities of the business of music and their ignorance is no excuse. MOst songwriters know they stand to make the most, which is part of their motiviation to keep writing as well as maintain creative control of what the band plays. This is also a major area of tension in bands, however a team has to realize where it's strong and weak points are and do what serves the team best. On the other hand, a songwriter will quickly find themselves alone if they don't learn to appreciate and compensate, in some way, the members of the group for their input and skill. Bottomline is everyone has to know where they stand from the beginning. If you can't write good songs, play in multiple bands on as many songs as you can to compensate for your lack of musical royalties. That's my solution and a big reason why most musicians eventually become session players I think.

[Ashley Balestrieri]

Chris: There is a crutial distinction between the two examples you provided. The Band was pluked from relative obscurity after their tenure with Ronnie Hawkins to help flesh out the sound of compositions Dylan had already fully composed and conceived. They simply accommodated his orders to produce the particular style and sound Dylan had in mind (as I believe anyone in his presence would be inclined to do). Backing bands do not take songwriting credit for solo artists' compositions because they are just following orders and doing their job; perhaps, in copyright parlance, producing a work-for-hire. In the Band's case, Robertson would walk into, say, the Big Pink with the rough embryo of a song and the others would work their magic to expound upon it and make it come alive in the studio. On the expanded version of the brown album, you can hear Helm making vocal suggestions to Manuel on an alternate take of "Whispering Pines" and reasonably surmise that interactions of this nature occurred regularly. That said, I absolutely agree with you about Levon Helm's underrated genius. You should check out his latest release Dirt Farmer; it is simply superb. And his autobiography This Wheel's On Fire is an absolute riot, well worth your time.

[Chris]

I love Levon Helm and think he was the unacknowledged voice behind The Band, singing many more hits than Rick Danko or Richard Manuel. But this is, unfortunately, sour grapes on his part. Look no further than the artist The Band became famous for backing: Bob Dylan. Should they share in the songwriting credit for the songs Dylan made famous while they were his backing band?

[Ashley Balestrieri]

Mr. Gaynor issued the statement on the "Postcards" portion of his website, which he subsequently modified.

[Bob]

An interesting and timely topic but I have to ask, where in your referenced link [6] does Adam Gaynor, former guitarist for Matchbox Twenty, claim, as you state, "that the band’s three founding members received a disproportionate amount of the profits"?

I have read no such public statement of his, nor can I find one on his website. I think you do a diservice, both to your article as well as the aforementioned band, if you cannot corroborate the reasons for his estrangement any more specifically than that. Rumor and innuendo have no business in your article and do nothing to advance your premise.

Perhaps you could direct your readers to the specific statement rather than just a generic, and somewhat annoying, website.