Do I Owe Former Collaborator for a Song He Didn't Co-Write?

Dear Rich: I used to write songs with a musician friend until we had a falling out. Fast forward four years, and I'm now releasing an album of original songs with a California-based indie label. My ex-songwriter friend heard my demo and said that one of my new songs is based on another song that we wrote together. He says that he should be given credit and a portion of the music publishing income. He's threatened to get a lawyer. I don't want this to mess up my record release. 

We can provide you with the legal rules that apply in your situation, but if you're concerned that the dispute will jeopardize your label relationship, you should seek the advice of an entertainment attorney. There are two likely arguments that your former collaborator can make; that he is a co-author of the new song, or alternatively, that the new song is a derivative of the earlier collaboration.

Is he a co-author? It's unlikely that your former collaborator would qualify as a co-writer of your new song. That's because a co-writer (or joint author) must intend for their contribution to merge with your new work. Other factors that are important are: 

• each co-writer must make an independently copyrightable contribution to the new work,
• each co-writer must exercise control over his contribution (he had some creative control or supervisory power over the creation of the work)  and 
• the audience appeal of the work is derived from both of your contributions (and "the share of each contribution in the song's success cannot be appraised"). 

Is the new song a derivative work? Your former collaborator may argue that your new song is a derivative of your earlier collaboration. The performer, Lizzo, ran into a similar problem in 2019 when two former collaborators claimed that her hit song, "Truth Hurts," was derived from an earlier co-written composition entitled "Healthy." Although the trial court dismissed some of the copyright claims in favor of Lizzo, the former collaborators were allowed to continue their lawsuit on other related claims. As a result, the case dragged on for three years and was finally settled confidentially in 2022. 

Takeaway. Get an attorney's opinion on your former collaborator's chances in court. Analyze your financial risks and determine whether it could be more convenient and less expensive to reach a settlement. 

Lyric Writer Wants to License Song

Felice and Boudreaux Bryant,
cowriters of Bye Bye Love, Wake Up
Little Susie, All I Have to Do Is Dream,
Rocky Top, and other great hits

Dear Rich: I write song lyrics and about three years ago collaborated by email with a composer. He sent me a musical composition that I have since written lyrics to and would like to pitch for a TV ad campaign and CD production. Unfortunately, I get no response from email and Soundcloud page from composer is inactive. Can I use music legally or do I have to have written permission? Can't think of any other ways to contact person to get authorization. 
It sounds as if you and the composer -- like Felice and Boudreaux (left) -- intended to combine words and music into "inseparable or interdependent parts." That makes you and the composer joint copyright owners of the song.
Rights of joint owners. With one exception (see below), joint copyright owners can separately grant permission (a license) for someone to use the song, provided that each writer shares the income with the others. If the writers have not agreed on the percentages, courts often start with the presumption that all songwriters contributed equally. Because you cannot locate the composer, you should put aside the composer's share of any income as a demonstration of your good faith.
First authorization of song. There's one question that's unresolved: Do all cowriters have to consent to the first release of the song? We think so because the first release makes the song available for anyone who pays a fee to record the song. Keep in mind that others may disagree because there is no explicit requirement in copyright law that all writers agree to first release. If you've used best efforts to locate the composer and you've documented your efforts, you may be better served disregarding our advice in this situation.