Legal relations among members of a rock band: Establishment and effects of joint ownership in their musical works

Legal relations among members of a rock band: Establishment and effects of joint ownership in their musical works Anna Victoria Jürgensen 1

I. Introduction The song Every Breath You Take by The Police collects royalties of $730,000 a year. 1 According to the lead singer of the band, Sting, he woke up in the middle of the night in Jamaica and went straight to the piano and the chords and the song just came out within ten minutes. Wrote the song. Went back to bed. 2 Andy Summers, on the other hand, who plays the guitar riff that is so significant for the sound of the song tells of a different account of how things happened: According to him: (W)e sit on the (studio control room) couch at creative standstill. Sting leans over and says, Go on, go in there, make it your own. ( ) The track rolls and I play a sequence of intervals that outline the chords and add a nifty little extension to each one that makes it sound like the Police, root fifth, second, third, up and down through each chord.... I play it straight through in one take. There is brief silence, and then everyone in the control room stands up and cheers. 3 Despite Summers significant contribution, Sting is the sole owner of the copyright of the composition. If Summers had been credited as a co-author of the song, he 1 (http://www.musictimes.com/articles/3268/20140108/breath-take-makes-sting-2-000- day.htm). 2 Vic Garbarini, The Police Report the lion in winter, Musician (June 1983) available at http://www.sting.com/news/article/23 3 Andy Summers, One Train Later: A Memoir 323-24 (2006) 2

and Sting would have shared the copyright. Due to the commercial success and several adaptations of the song by other artists like P.Diddy ( I ll be missing you ), the royalties amount to the very high amount of $730,000 a year and accordingly $2,000 a day. 4 Summers, however, was never given credit nor thought to ask for it. This scenario is a common phenomenon when it comes to rock bands and the legal relations between the primary contributor, often the lead singer, and the secondary contributors, the side musicians. The term side musicians in this paper refers to the musicians who are members of the band and perform in the recorded version of the composition and yet are not awarded ownership of the work s copyright. The latter often contribute a significant amount in the artistic sense, being relied upon by the primary contributor. Yet, lead musicians often free ride on the significant contributions of side musicians being supported by current legislation and case law. This paper explores the concept of Joint Ownership with focus on the treatment of secondary contributors. Their work, while often significant, is regularly judged insufficient to garner legal authorship credit in the musical composition. This note argues that current copyright jurisprudence allows primary contributors to free ride on the contributions of secondary contributors by subsuming their significant contributions whilst being the sole owner of the copyright. 4 see Fn. 1 3

It explores this issue by examining a hypothetical situation involving the songwriting process of a rock band including multiple authors. The first part of the paper analyses the differentiation between a copyright in musical work and in a sound recording. It then outlines the narrowly interpreted joint-authorship doctrine and questions the underlying assumptions in court interpretations. This note then analyses the relationship between the co-authors and then turns to an outlook. II. Hypothetical Bill is the lead vocalist and bass guitar player of a rock band called Hercules. Besides him the band consists of Amy, who plays the guitar and Elliot, who contributes the drums and percussion. One day, Bill introduces the band members to an idea for a new song. He has already written the lyrics and the basic melody and basic guitar chords. Bill has with him a sheet of paper with the lyrics and basic chords on it, but sings the melody and rhythm from memory. Elliot and Amy are thrilled with the idea of the song and decide to adapt it. They construct their own instrumental parts, at times with guidance from the lead singer, Bill. The guitar parts Amy composes include rhythm guitar parts that merely support the melody and lyrics. She also composes a very catchy guitar riff, which is being 4

repeatedly heard during the refrain and which distinguishes the song significantly from other rock song compositions. Elliot s percussion progressions are standard rock beats. Soon, the band is satisfied with the results and feels like a hit song may have just been born. Hercules agree to call the song Stardust. They move on with their rehearsal without fixing their respective parts in writing. They did, however record the song. A month later, they record a whole album of their songs, which includes the song Stardust. Hercules does not have a written agreement concerning the ownership of the songs. The song indeed makes it in the US-rock-charts and Hercules career gets started. After some time, Amy and Elliot feel like Bill was getting too much of stardom, drugs, women and is harming the band s reputation. Additionally, Amy and Elliot feel betrayed by Bill, because he claims the sole copyright to the Song Stardust, keeping them from collecting a considerable sum of money due to its commercial success. Amy and Elliot confront Bill with their claim to have a shared copyright in the song, since they, in their opinion, contributed significantly to the composition of Stardust. Bill declines their request, saying that s how the wind blows, since they are only useless side-musicians and he is the genius who came up with the idea of the song. Battle lines were drawn and Hercules split up. 5

Amy and Elliot sue Bill, seeking a declaratory judgment that they are joint authors of Stardust alongside Bill and an accounting for their shares of the copyright revenue. III. Distinguishing musical work from recording The Copyright Act protects original works of authorship fixed in any tangible medium of expression. 5 Recorded music is simultaneously protected in two separate ways: The copyright in the underlying musical work 6 itself and the copyright in the sound recording of the work. 7 This paper focuses its analysis on the joint ownership of a copyright of a musical work. Despite that, it is necessary to understand how both copyrights interact and are to be distinguished. Section 102 of the Copyright Act protects musical works, including any accompanying words. 8 as copyrightable subject matter. The Copyright Act itself does not include a definition of the term musical works, because Congress declined to define it since it was of the opinion that the term had a fairly settled meaning[]. 9 This lack of definition, however, leads to differing interpretations by the courts. 5 17 U.S.C. 102(a). This paper refers to the Copyright Act of 1976, as amended, as either the Copyright Act or the Act. 6 Id. 102(a)(2). 7 Id. 102(a)(7). 8 Id. 102(2). 9 H.R. Rep. No. 94-1476, at 53 (1976) 6

Some courts believe that the term merely includes melody and lyrics, 10 while another court has adopted the view that a musical composition's copyright protects the generic sound that would necessarily result from any performance of the piece. 11 Another approach is to consider melody, harmony, rhythm, pitch, tempo, phrasing, structure, chord progressions, and lyrics. 12 It is important to distinguish the term musical work from that of sound recording. Unlike the term musical work, the term sound recording is defined in the Copyright Act itself. It defines sound recordings as works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.... 13 Both laypersons and lawyers frequently confuse these two copyrights. Although maintaining the distinction is important, the confusion is understandable. Given the practice of using the recording studio as a compositional medium, the boundary separating these two copyrights has become blurred. 10 See, e.g., Tisi v. Patrick, 97 F. Supp. 2d 539, 548-49 (S.D.N.Y. 2000) (granting summary judgment for defendants because plaintiff could not contend that either the lyrics or the melody of [the two compositions were] strikingly similar, and holding that key, tempo, chord progression, chord selection, and guitar rhythm are not copyrightable as a matter of law); Intersong-USA v. CBS, Inc., 757 F. Supp. 274, 282 (S.D.N.Y. 1991) (finding song structure, chord progression, and recurring eighth note rhythm to be ordinary, unprotectable expression ); N. Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393, 400 (S.D.N.Y. 1952) ( It is in the melody of the composition[] or the arrangement of notes or tones that originality must be found. ) 11 Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002) 12 Swirsky v. Carey, 376 F.3d 841, 849, 71 U.S.P.Q.2d 1491, 64 Fed. R. Evid. Serv. 1002 (9th Cir. 2004) 13 17 U.S.C. 101. 7

Musical works today are protected by copyright upon their fixation in any tangible media of expression, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, be it written notation, recording, or otherwise. 14 The elimination of the written notation requirement 15 especially benefits fairly inexperienced composers, because it opens copyright protection to those not professionally skilled in written musical notation. Be that as it may, the rise of the recording studio as a mechanism for composing music and as a medium for the primary fixation has also lead to difficulties. Nowadays, the song writing process particularly in rock bands is more collaborative and often happens in the studio without prior written fixation. In those situations, the sound recording is the first fixation of the composition and the definitive guide as to what constitutes the musical work. Consequently, the availability of protection for musical compositions, which are first fixed by recording, can also be problematic, because it might aggravate the uncertainty caused by Congress's failure to define musical work and, in doing so, contributes to copyright's unfair and inconsistent treatment of secondary contributors. The traditional view of the song writing progress that a composer has a written sheet music and gives musical direction through that resulting in the musicians 14 17 U.S.C. 102(a). 15 H.R. Rep. No. 94-1476, at 52 (1976). 8

performances mirroring exactly what can be found in the sheets, is far from reality nowadays and in fact, has not represented the process for country, rock, gospel, folk or jazz. Nonetheless, it still dominates copyright law and, even if only subconsciously, influences many copyright jurists, even if only subconsciously. Over time this conventional vision of a singular author with a written plan has become more a theoretical concept than a practical reality for popular music. The use of a written musical score largely has been replaced by a collaborative authorship process, which often occurs in the recording studio. Even when the composition is not first composed in the recording studio, the studio often serves as the method of the composition's first fixation, making the recording the definitive guide for the boundaries of the musical work. Accordingly, it is more difficult to dissect the distinct musical composition and sound recording copyrights than is often suggested. 16 Regarding the hypothetical, it can be said that the analysis of this note focuses on the copyright of the musical work, which is supposed to include the parts Bill composed, which are the lyrics, the basic melody and basic guitar chords and the parts Amy and Elliot composed. The first fixation of Stardust here constitutes the recording that takes place in the studio right after the composition process. 16 See 17 U.S.C. 102(a)(2), (7) (2000) (providing for distinct copyrights); Jarvis v. A & M Records, 827 F. Supp. 282, 292 (D.N.J. 1993) ( Under the Copyright Act, there is a well-established distinction between sound recordings and musical compositions. (emphasis added)). 9

IV. Origin and Establishment of joint ownership Ownership of a copyright vests initially in the author or authors of the work. 17 The Supreme Court has said that, [a]s a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. 18 Generally, the composer of the musical composition and the performer of a sound recording are the owners of the respective copyright, if there are no co-authors or other secondary contributors and no agreement to the contrary. A joint copyright arises when multiple "authors" create a "joint work". It is defined 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." 19 Courts interpreting this language have developed a two-part test to determine when a work is a joint work. 20 In order to be a joint author a party must show (1) intent and (2) authorship. 17 17 U.S.C. 201(a) (2000). 18 Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989); see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884) ( An author... is he to whom anything owes its origin; originator; maker... (internal quotation omitted)). 19 17 U.S.C. 101. 20 See, e.g., Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068-69 (7th Cir. 1994) (discussing the statutory requirements for joint authorship) and Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000). 10

The first element, intent, serves as a mean to distinguish derivative works, compilations, and collective works from joint works. The putative co-authors must have "intended to merge the contributions into a unitary whole." 21 Reporting on the Act, the House Committee on the Judiciary states that [A] work is joint if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as inseparable or interdependent parts of a unitary whole. 22 Courts differ in their opinions on the specific requirements that need to be fulfilled in order to show intent. Courts disagree whether the intent of the co-authors should be focused towards working together or becoming joint-authors. 23 The prevailing judicial trend is to require the latter. 24 The Second Circuit adopted the strict approach, holding that artists must perceive or regard each other as joint authors. 25 They must possess a mutual intent to 21 Sys. XIX, Inc. v. Parker, 30 F. Supp. 2d. 1225, 1228 (N.D. Cal. 1998); 17 U.S.C. 101 (2006). 22 Id. 23 See Childress, 945 F.2d at 507 (noting this statutory ambiguity). 24 Id. at 508-09; see also Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (requiring that putative coauthors make objective manifestations of a shared intent to be coauthors ); Thomson v. Larson, 147 F.3d 195, 201-02 (2d. Cir. 1998) (examining and following Childress); Erickson, 13 F.3d at 1068-69 (adopting Childress); Gilliam v. ABC, Inc., 538 F.2d 14, 22 (2d Cir. 1976) (stating that the written agreements at issue suggest that the parties did not consider themselves joint authors of a single work ) 25 Childress v. Taylor, 945 F.2d 500, 508 (2d Cir. 1991). 11

share authorship. 26 The intent does not have to be focused on the legal consequences of co-authorship, 27 it is sufficient when each author has considered the concept of joint authorship, regardless of the legal specifications. 28 The court explained its narrow relationship test approach by saying that Congress could never have intended that collaborators such as editors and research assistants qualify as co-authors. 29 This approach was established as the standard for determining joint work status in most jurisdictions, although the language of the statute or legislative history does not directly support it. 30 The point of time at which the intent has to be present is the time the writing is done. 31 Each author s contribution does not need to be equal to those of the other coauthors. It merely has to be "significant both in quality and quantity to permit an inference that the parties intended a joint-work." 32 Regarding the hypothetical it can be induced that Bill wrote his part of Stardust with the intention to bring it to the band s rehearsal and to share his ideas and, correspondingly, the copyright with Amy and Elliot. The contributions by Elliot and Amy were most probably also written with their intention to make them part of the whole composition of Stardust. 26 Id. 27 Id. 28 Id. 29 Id. at 507. 30 Mary LaFrance, Authorship, Dominance, and the Captive Collaborator: Preserving the Rights of Joint Authors, 50 Emory L.J. 193, 223 (2000). 31 H.R. Rep. No. 94-1476 (1976) 32 Eckert v. Hurley Chicago Co., 638 F. Supp. 699, 704 (N.D. Ill. 1986). 12

The second requirement of joint ownership is that of authorship. It has led to even more judicial disagreement. 33 The primary issue is whether the individual contributions of each putative joint author must be independently copyrightable in order for each contributor successfully to claim joint authorship. Courts have developed two tests for the purpose of resolving this issue. The Goldstein Rule states that a party's contribution to the work must be independently copyrightable for such party to obtain co-ownership of the work's copyright. 34 According to Professor Goldstein, [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. 35 When defining and outlining the requirements of a joint work 36, the Copyright Act refers to authors as the creators or originators of the work. 37 Authors create works of authorship, which according to the Act all have to be independently copyrightable. 38 33 See Brown v. Flowers, 196 Fed. App'x 178, 186-89 (4th Cir. 2006) (discussing the two competing interpretations of this issue, one requiring independent copyrightability of each contributor's contributions and the other not requiring such); (discussing recent developments). 34 Paul Goldstein, Copyright: Principles, Law, and Practice 4.2.1.2 (2d ed. Supp. 2004). 35 Id. 36 See 17 U.S.C 101, 302. 37 See Balkan, 863 F. Supp. at 526 38 See 17 U.S.C. 102(a) 13

For example, in Balkin v. Wilson 39, the court held that ideas and concepts are not independently copyrightable and therefore do not fulfill the standard of a contribution under the concept of joint ownership. 40 This Goldstein Rule is the view most widely held and has been adopted, in some form, by a majority of courts that have considered the issue 41. It is significant for music industry purposes that both the Second and Ninth Circuit Courts of Appeal have adopted it 42, since they are in California and New York at the root of the music industry, Other courts have followed a different approach, the Nimmer Rule. 43 Under the Nimmer Rule, the contributions of a putative joint author need not be independently copyrightable to be the basis of a successful joint authorship claim so long as each author makes more than a de minimis contribution to the work. According to Nimmer all that should be required to achieve joint author status is more than a de minimis contribution by each author. De minimis' requires that more than a word or line must be added by one who claims to be a joint author. 44 This more tolerant approach allows secondary contributors to have a greater chance of being successful on a joint authorship claim than under the Goldstein Rule. 39 Balkin v. Wilson, 863 F. Supp. at 528 (W.D. Mich. 1994) 40 Id. 41 Erickson, 13 F.3d at 1069. 42 See Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000) (holding that [a] joint work in [the Ninth] circuit requires each author to make an independently copyrightable contribution to the disputed work, ; Childress v. Taylor, 945 F.2d 500, 506-07 (2d Cir. 1991) (adopting the requirement of an independently copyrightable contribution in the Second Circuit) 43 Nimmer & Nimmer, Nimmer on Copyright 2.01[B] (2007) 44 Id. 14

The Nimmer Rule does, however, remain a minority approach among the federal circuits and has been dismissed as purely theoretical. Accordingly, in most jurisdictions secondary contributors must prove the independently copyrightable nature of their contributions in order to win a joint authorship action. Neither the discussion of Goldstein Rule nor the Nimmer Rule has been lacking critique. As the minority view, the Nimmer test has been more widely criticized. The primary criticism of the Nimmer Rule is that ideas and concepts are not and should not be independently copyrightable, since the Act itself does not support that premise. Secondly, the contribution of an idea is an approach that is too ambiguous and unclear. The Goldstein Rule, on the other hand, seems to be self-contradicting in its requirements. It is not clear how contributions that are that are inseparable or interdependent parts of a unitary whole 45 can be independently copyrightable at the same time, except they are part of a compilation. Additionally, some commentators have criticized the Goldstein test as being too demanding, resulting 45 17 U.S.C. 101 (2006) 15

in many valuable contributions by collaborators being denied copyright protection. 46 Nonetheless, the disagreement between the proponents of each might be a distinction without a difference. The United States Supreme Court has set the bar for copyright protection rather low, requiring only some minimal degree of creativity for expression to be considered copyrightable. 47 Therefore, the Goldstein test could in practice be little more restrictive than the Nimmer test. Regarding Bill s contribution it can be said that the application of the Goldstein Rule as well as the Nimmer Rule would lead to his being credited as an author and owner of the copyright. Since his contribution includes the lyrics, the melody and the basic guitar chords, it is most likely to be held to be independently copyrightable since it includes a minimal amount of originality. The same thing can be said for Amy s guitar riff that is very catchy and is being repeatedly heard during the refrain and which distinguishes the song significantly from other rock song compositions, making it independently copyrightable. More difficulties can, however, be found in the classification of Elliot s contribution which is a standard rock percussion beat. It would have to be closely analyzed in order to be found to be independently copyrightable. The standard of copyright is fairly low, since the work only has to show a minimal amount of originality. This 46 see also Gaiman v. McFarlane, 360 F.3d 644, 658-59 (7th Cir. 2004) (acknowledging that the Seventh Circuit applies the Goldstein test in joint authorship claims but suggesting that in some cases the Nimmer test may be more appropriate). 47 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991). 16

means that if Elliot s rock beats are only minimally different from the standard rock beat, he would be awarded copyrightability of his contribution. This, consequently, means that he would be awarded joint authorship under application of both the Nimmer Rule as well as under the Goldstein Rule. V. Effects of joint ownership on the relationship between the co-owners Today, more than twenty years after the enactment of the Copyright Act in its latest form, there is still strangely little law regarding the relationship of joint authors and their rights and obligations toward each other. 48 The hostility courts have toward the joint works doctrine 49 or the scarcity of disputes that end up before the courts has resulted in a scarcity of case law. The relationship between joint authors, especially in the context of a rock band, is an intimate one, which is focused on artistic changes and impulsiveness. Yet, it involves deep contractual and financial disputes. Courts avoid familial disputes, preferring the parties themselves to solve their private matters. One could call the joint author relationship the copyright law version of a familial relationship. It is the most intimate relationship available under copyright law. 48 Maurel, 220 F.2d at 199. 49 See Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 Cardozo Arts & Ent. L.J. 293, 315 (1992) (arguing that in many particular instances copyright refuses to acknowledge the existence of joint authorship, or does so only grudgingly ) 17

The Copyright Act presumes that each co-owner is entitled to an equal undivided interest in the copyright of a joint work. 50 This presumption of equal undivided ownership can be modified by an express written agreement signed by the parties. The owners are generally treated as tenants in common. 51 Therefore, each joint owner has an independent right to use or license the work subject only to a duty to account to the other coauthors for any profits earned on the work. 52 If the joint owners do not have an agreement on the contrary, they have independent rights to copy, distribute, prepare derivative works, display the work, to perform the work publicly depending on the copyrighted medium, and grant non-exclusive licenses without seeking permission of the other joint owners. 53 50 See 17 U.S.C.A. 201(a); Warren Freedenfeld Associates, Inc. v. McTigue, 531 F.3d 38, 48, 87 (1st Cir. 2008); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068, 29 U.S.P.Q.2d 1347 (7th Cir. 1994); Designer's View, Inc. v. Publix Super Markets, Inc., 764 F. Supp. 1473, 1477, 20 U.S.P.Q.2d 1223 (S.D. Fla. 1991), summarily aff'd, 961 F.2d 223 (11th Cir. 1992); Visitor Industries Publications, Inc. v. NOPG, L.L.C., 91 F. Supp. 2d 910, 913, 54 U.S.P.Q.2d 1659 (E.D. La. 2000); Meltzer v. Zoller, 520 F. Supp. 847, 857, 216 U.S.P.Q. 776 (D.N.J. 1981); Price v. Fox Entertainment Group, Inc., 473 F. Supp. 2d 446, 454 (S.D. N.Y. 2007); Baker v. Robert I. Lappin Charitable Foundation, 415 F. Supp. 2d 473, 487 (S.D. N.Y. 2006).) 51 See Warren Freedenfeld Associates, Inc. v. McTigue, 531 F.3d 38, 48, 87 U.S.P.Q.2d 1301 (1st Cir. 2008); Davis v. Blige, 505 F.3d 90, 98, 84 U.S.P.Q.2d 1353 (2d Cir. 2007); Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1145, 86 U.S.P.Q.2d 1065, R.I.C.O. Bus. Disp. Guide (CCH) 11446, 2008-1 Trade Cas. (CCH) 76091 (9th Cir. 2008); Glovaroma, Inc. v. Maljack Productions, Inc., 71 F. Supp. 2d 846, 853 (N.D. Ill. 1999). 52 See Davis v. Blige, 505 F.3d 90, 98, 84 U.S.P.Q.2d 1353 (2d Cir. 2007); Goodman v. Lee, 78 F.3d 1007, 1012, 38 U.S.P.Q.2d 1354 (5th Cir. 1996); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068, 29 U.S.P.Q.2d 1347 (7th Cir. 1994); Bencich v. Hoffman, 84 F. Supp. 2d 1053, 1056, 54 U.S.P.Q.2d 1059 (D. Ariz. 2000); 53 17 U.S.C. 106 (stating a copyright owner s exclusive rights). Erickson, 13 F.3d at 1068. In the case of sound recordings, the rights may be more limited. 17 U.S.C 106 (sound recording exclude the right to perform except by digital transmissions); see also 17 U.S.C 114 (providing rights to sound recordings). 18

Exclusive licenses to third parties, however, cannot be granted by one co-owner on his own but must be agreed on by all co-owners. 54 A joint owner of a copyright has a duty to account to the other co-owners for profits. 55 Additionally, co-owners have the duty not to waste or deplete the coowned assets and a joint author cannot destroy the work, or license the work in such a way as to cause its destruction. 56 The actions of one co-owner can hinder or destroy another co-owner s ability to collect profits off the joint work. Especially when the work is being exhausted in a sense that the extensive use of a work s copyright can exhaust its worth and practically destroy its value. 57 VI. Outlook Legal scholars, judges and practitioners often fail to understand how the construction of contemporary music has changed in the last decades resulting in 54 In Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), Sybersound's analysis is flawed because, as a co-owner of the copyright, TVT could not grant an exclusive right in the karaoke-use interest of the nine referenced copyrights. 55 Erickson, 13 F.3d at 1068; see also Goodman v. Lee, 78 F.3d 1007, 1012 (5th Cir. 1996). 56 Nimmer On Copyright, 6.19[A] (citing Brown v. Republic Prod., Inc., 161 P.2d 796, 797-80 (Cal. 1945); Maurel v. Smith, 271 F.2d 211, 215-16 (2d Cir. 1921); see also: Weissmann v. Freeman, 684 F. Supp. 1248 (S.D.N.Y. 1988); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 73 F. Supp. 165, 168 (S.D.N.Y. 1947). 57 Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 73 F. Supp. 165, 169 (S.D. N.Y. 1947): while [i]t has been said that copyright, being an incorporeal right, cannot be destroyed... [t]he use of one owner, by license or personally, in motion pictures, on the stage, by radio, in advertising, in bands or orchestras, can destroy, practically, the copyright so far as the other is concerned. its broad use by an active publisher can so far exhaust the popularity of a song, or any other musical composition, as to destroy its value after that use has ended. And the destruction of value of a copyright is, in effect, a destruction of the copyright. 19

doctrines and jurisdiction that do not mirror the music industry practice. Courts have consistently chosen to narrowly interpret the joint work clause, ignoring the fact that the concept of a singular author does not comply with the reality anymore. Side musicians and other secondary contributors play a fundamental role in creating the sound and justice demands that they be treated fairly and rewarded equitably for their artistic contributions. The suggestion that a putative co-author should insist on a contract prior to collaboration ignores the dynamic of the collaborative process. To the contrary, there is nothing preventing a dominant author from exploiting the efforts of a co-author with an informal offer to share ownership, and then after the collaboration claiming that he or she had no intention of sharing ownership and consequently pocketing all the profits from the work s copyright. Putative co-authors that are secondary contributors are not likely to make up a powerful lobby. Consequently, the chances of Congress legislating such a rule are unlikely. In the absence of such a force, it is up to courts to initiate the process of reforming the joint work doctrine. Otherwise, primary authors will continue to exploit works that are not merely their own, at the expense of the less powerful secondary contributors. 20

To the extent that law is supposed to mirror society s norms and expectations, a divide between copyright law and music industry practice is particularly problematic. 21