Co-Creating Equality

See infra Section I.C.

This is the theory of authorship advanced in Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) and Erickson v. Trinity Theater, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994), present in Thomson v. Larson, 147 F.3d 195, 202–03 (2d Cir. 1998) as the “decisionmaking authority” factor, and followed in those and other circuits. See infra Sections I.B–C.

Statutory law is silent on ownership shares, stating only that the “authors of a joint work are coowners of copyright in the work.” 17 U.S.C. § 201(a). The equal split default was developed as a common law rule. The contemporary common law of joint authorship was codified as part of the Copyright Act of 1976. See infra Sections I.A–B.

While the ability to license the work on a nonexclusive basis is only one of a bundle of rights possessed by the copyright holder—the right to transfer the work on an exclusive basis most notable among them—it is the most economically significant right in most contexts, and therefore the focus of this Article.

When efforts are not rewarded, rational workers scale back efforts to conserve their resources. Charles G. McClintock, Roderick M. Kramer & Linda J. Keil, Equity and Social Exchange in Human Relationships, 17 Advances in Experimental Soc. Psych. 183, 195 (1984).

See Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 Va. L. Rev. 1575, 1639 (2003) (“Rules are cheap to administer because they are simple and straightforward, but due to their inflexibility they may lead to costly outcomes if they fit a given situation poorly.”).

This appears to be the overriding concern of the courts, although couched in utilitarian language. It may be that courts intuitively recognize the (empirically sound) notion that creators’ perception of fairness can motivate them to create (or demotivate them when perceived fairness is lacking). See Stephanie Plamondon Bair, Rational Faith: The Utility of Fairness in Copyright, 97 B.U. L. Rev. 1487, 1502–06 (2017). My argument is rooted in the idea that the utilitarian ends of copyright may, in a joint authorship context, be served by attention to the fairness concerns of co-authors. For a discussion and further empirical support, see Sarah Polcz, Loyalties v. Royalties, Hastings L.J. (forthcoming 2023).

ASCAP, along with Broadcast Music, Inc. (“BMI”), are the two largest organizations that collect public performance royalties on behalf of songwriters and music publishers (performance rights organizations, or “PROs”) in the United States. Combined, ASCAP and BMI control approximately ninety percent of the public performance licensing market. Anousha Sakoui, Justice Department Leaves Decades-Old Music Industry Decrees Unchanged, L.A. Times (Jan. 15, 2021), https://www.latimes.com/
entertainment-arts/business/story/2021-01-15/justice-dept-consent-decrees-music-industry-ascap [https://
perma.cc/5Z8F-7MXW].

H.R. Rep. No. 94-1476, at 121 (1976); Paul Goldstein, Goldstein on Copyright § 4.2.2.1, at 4:30 (3d ed. 2020 & Supp. 2020).

Goldstein, supra note 9, § 4.2.2, at 4:29 (“Each co-owner’s share of license proceeds will be measured according to a principle of strict equality, and will not be proportioned to the quantity or quality of each co-owner’s contributions to the joint work.”).

See, e.g., Sweet Music, Inc. v. Melrose Music Corp., 189 F. Supp. 655, 659 (S.D. Cal. 1960).

For a brief history of accounting in Anglo-American copyright law prior to 1874, see Accountability Among Co-Owners of Statutory Copyright, 72 Harv. L. Rev. 1550, 1553–55 (1959).

See Subcomm. on Patents, Trademarks & Copyrights of Sen. Comm. on the Judiciary, 86th Cong., 2d Sess., Copyright Law Revision: Studies Nos. 11–13, at 89 (Comm. Print 1960) (authored by George D. Cary) (“[N]either in the hearings nor in the report accompanying the bill that became the copyright law of 1909, does one find a reference to the problems of joint authorship or joint ownership.” (footnotes omitted)); Accountability Among Co-Owners of Statutory Copyright, supra note 12, at 150 (pointing out that no judicial statement on co-authorship had been made in Anglo-American law prior to 1871).

Copyright, and intellectual property protection generally, were regarded as species of monopoly, which could lead to political and social corruption. See 1 William F. Patry, Patry on Copyright § 1:18, Westlaw (database updated Sept. 2022). While these protections were regarded as too useful to be abolished, even early supporters like James Madison thought they should be treated with caution. See James Madison, Detached Memoranda, ca. 31 January 1820, Nat’l Archives, https://founders.archives.gov/documents/Madison/04-01-02-0549 [https://perma.cc/VV9L-5QYX].

A calculation by Professor William Patry, placing copyright registrations between 1790 and 1800 at approximately five percent of domestically published books, suggested the local nature of publication, the relative lack of piracy, burdensome formalities of copyright, and the preponderance of British-authored books—for which no protection was available under the Copyright Act of 1790—as prevailing reasons for the lack of registration. Patry, supra note 14, § 1:19. The expansion of the domestic publishing industry, without a concomitant expansion of domestic authorship, would stymie copyright reform throughout the nineteenth century: piracy of foreign (mainly British) authored works was regarded as a boon to the free spread of ideas throughout the democratic polity. Peter Baldwin, The Copyright Wars 114 (2014). Economically, the primary focus was on the protection of the American publisher—often of unauthorized foreign reprints—rather than the American author. See id. at 118. But in the wake of the transatlantic success of American authors, most significantly Harriet Beecher Stowe’s Uncle Tom’s Cabin, Congress fully extended copyright protection to foreign authors in 1891. See id. at 121–22. The modern period of American copyright could be said to have begun, and the modern period of American joint authorship law would soon follow.

Carter v. Bailey, 64 Me. 458, 463 (1874) (“In the absence of any contract modifying their relations, they are simply owners in common . . . each owning a distinct but undivided part which or any part of which alone he can sell, as in the case of personal chattels.”).

Id. at 463–64.

See id. at 462.

See id. at 464–65.

Id. at 464; see also Theodore R. Kupferman, Copyright—Co-Owners, 19 St. John’s L. Rev. 95, 103–04 (1945); Accountability Among Co-Owners of Statutory Copyright, supra note 12, at 1555.

In the United States, record sales increased from approximately 3 million units in 1900 to 30 million in the early 1910s to 140 million in 1921. Pekka Gronow, The Record Industry: The Growth of a Mass Medium, 3 Popular Music 53, 59 (1983). Radio broadcasting stations increased from five in 1921 to over five hundred in 1924. Christopher H. Sterling & John Michael Kittross, Stay Tuned: A History of American Broadcasting 827 (3d ed. 2002). By 1930, 40.3% of American households owned radio sets; by 1940 the figure was 82.8%, and 95% saturation was reached by 1950. Steve Craig, How America Adopted Radio, 48 J. Broad. & Elec. Media 179, 182 (2004). For a history of the similar growth of the American film industry during this time period, see generally Eileen Bowser, The Transformation of Cinema 1907–1915 (1990) and Richard Koszarski, An Evening’s Entertainment: The Age of the Silent Feature Picture 1915–1928 (1990).

See Accountability Among Co-Owners of Statutory Copyright, supra note 12, at 1556 (contrasting the reach of publication in the time of Carter with the ability to reach “virtually the entire potential audience” with then-contemporary publication).

A similar logic was applied in Crosney v. Edward Small Prods., Inc., 52 F. Supp. 559 (S.D.N.Y. 1942) (accounting appropriate between co-owners of motion picture rights where licensing destroys the value of the res).

See Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 73 F. Supp. 165, 168 (S.D.N.Y. 1947). Most later cases recognize—or at least recite—an equitable “constructive trust” basis for recovery, rather than a tenancy in common theory analogizing ouster or destruction of the res. See Maurel v. Smith, 220 F. 195, 201 (S.D.N.Y. 1915) (“[W]hen the Smiths took out these statutory copyrights the literary property, which by publication they used and destroyed . . . .”). Modern cases often leave the legal basis indeterminate. See, e.g., Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984) (describing duty to account as derived from “equitable doctrines relating to unjust enrichment and general principles of law governing the rights of co-owners” (quoting Harrington v. Mure, 186 F. Supp. 655, 657–58 (S.D.N.Y. 1960))).

Maurel, 220 F. at 201.

The composer was not a party to the suit.

Copyright Act of 1909, Pub. L. No. 60-349, § 9, 35 Stat. 1075, 1077.

Maurel, 220 F. at 201.

See, e.g., Jerry Vogel Music Co. v. Miller Music, Inc., 74 N.Y.S.2d 425, 428 (N.Y. App. Div. 1947), aff’d, 87 N.E.2d 681 (1949) (confirming the accounting rule in co-authorship as “promot[ing] sound and orderly marketing of a work and a fair division of profits on the basis of mutual interest”). The case itself concerned, as early joint authorship cases often did, the words and music of a song.

See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.08 (2022).

See Justin Hughes, Actors as Authors in American Copyright Law, 51 Conn. L. Rev. 1, 66 (2019) (noting that Sweet Music, Inc. v. Melrose Music Corp., 189 F. Supp. 655 (S.D. Cal. 1960) is the “rare, possibly lone case directly deciding this issue”), a finding with which my research agrees. In Thomson v. Larson, 147 F.3d 195, 205 (2d Cir. 1998), plaintiff Lynn Thomson proposed an award of “24 per cent of two-thirds of the authors’ share attributable to the work as a whole, or in other words, 16 per cent,” on the theory that she had co-authored two-thirds (book and lyrics, but not music) of a revised version of Rent with Jonathan Larson, 48% of which consisted of new material. Brief of Plaintiff-Appellant at 50, Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) (No. 97-9085). The court appeared to give no consideration to this suggestion.

Maurel, 220 F. at 199.

Id.

Levy v. Rutley, L.R. 6 C.P. 523 (1871).

Id. at 530 (opinion of Montague Smith, J.).

Maurel, 220 F. at 201.

See Avner D. Sofer, Joint Authorship: An Uncomfortable Fit with Tenancy in Common, 19 Loy. L.A. Ent. L.J. 1, 7–8 (1998).

This was established by the time Maurel was decided. See, e.g., In re McConnell, 197 F. 438, 441 (N.D.N.Y. 1912) (citing Bittle v. Clement, 54 A. 138 (N.J. Ch. 1903)).

Maurel, 220 F. at 200 (“[I]t is impossible to say how much of their vogue was due to [the lyrics] alone, and how much to their presentation along with the opera as a whole. . . . I do not think that it is in the least possible to undertake a satisfactory analysis of the extent of the mutual influences between the parts of such a piece.”).

See Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir. 1944) (Hand, J.) (“The popularity of a song turns upon both the words and the music; the share of each in its success cannot be appraised . . . .”).

Maurel, 220 F. at 200.

Professor Shyamkrishna Balganesh proposes the application of a Necessary Elements of a Sufficient Set (“NESS”) test to determine whether causation rises to the level of authorship. Shyamkrishna Balganesh, Causing Copyright, 117 Colum. L. Rev. 1, 57–61 (2017).

Such a perception would be supported by the plaintiff and first defendant having on several previous occasions negotiated an equal split of profits for a collaboration with the same division of labor as in the case at bar, although Judge Hand stated his decision was not based on this consideration. See Maurel, 220 F. at 198.

Sweet Music, Inc. v. Melrose Music Corp.,189 F. Supp. 655 (S.D. Cal. 1960).

Id. at 659.

Id.; see also Eliscu v. T. B. Harms Co., 1966 WL 7662, at *2 (N.Y. Sup. Ct. Oct. 27, 1966) (“Plaintiff as a joint contributor to the composition is entitled to share equally with the other collaborators, absent any agreement to the contrary.” (citations omitted)).

H.R. Rep. No. 94-1476, at 121 (1976).

Judge Hand further expanded upon Maurel’s analysis in Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266 (2d Cir. 1944), in which joint authorship was used as a defense to an infringement action, and held that in a work originally intended to be joint, renewal of the copyright was to the whole work rather than its constituent elements—here the words and music of a song. The focus was on the nature of the work itself, rather than the mindset of the parties in relation to one another: because the words and music were intended to be performed as a single piece, joint authorship exists. Disregarding the relationship of the creating parties did, however, give rise to the notion that the parties themselves could be unknown to one another. Id. at 267. This is Judge Hand’s one innovation that was explicitly repudiated by the Copyright Act. See H.R. Rep. No. 94-1476, at 120 (1976) (emphasis added) (“The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit.”).

See H.R. Rep. No. 94-1476, at 120 (1976) (“Under the definition of section 101, 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.’ ”).

For instance, if an author creates a work from one of their own previous joint works, does the “intent to merge” from the previous work carry over into the putative derivative work, joining the earlier co-author automatically? See Weissmann v. Freeman, 684 F. Supp. 1248, 1261 (S.D.N.Y. 1988), aff’d in part, rev’d in part, 868 F.2d 1313 (2d Cir. 1989) (finding a joint work in this fact pattern, which was overturned on appeal by a divided Second Circuit panel).

See Fisher v. Klein, No. 86 CIV. 9522 (PNL), 1990 WL 10072477, at *1 (S.D.N.Y. June 26, 1990). The putative co-authors prevailed at the district court level in Fisher as in Weissmann. Id. at *19. While the Second Circuit’s doubts concerning Weissmann’s intent standard were addressed on appeal, Fisher was allowed to stand. Fisher, which had co-authorship turn on a “dominant author’s” intent to share authorship, was a major influence on the landmark Childress case, albeit to inhibit a finding of joint authorship rather than to support it. See Childress v. Taylor, 945 F.2d 500, 508 (2d Cir. 1991).

Second Circuit courts had, on occasion, previously expressed concern with the relative contributions of the collaborators in joint authorship cases. See Kenbrooke Fabrics, Inc. v. Material Things, No. 82 CIV. 7187-CSH, 1984 U.S. Dist. LEXIS 15458, at *17–24 (S.D.N.Y. June 28, 1984); Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 647 (S.D.N.Y. 1970).

This is the implication behind the observation in Childress, not further explained by the court, that the “equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors.” Childress, 945 F.2d at 509. When one author is a “dominant author,” it is “especially important.” Id. at 508. Why? The unspoken assumption—unspoken because it seems unquestionable—is that a majority contributor would naturally not want to share equally with someone who made a much smaller contribution. To overcome this “common sense” view requires a strong showing to the contrary.

See Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1069 (7th Cir. 1994).

Copyrightable works are “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a) (2016). “[M]usical works, including any accompanying words,” are one category of works of authorship. Id. § 102(a)(2). A work may be fixed in a “copy or phonorecord.” Id. § 101. For a discussion of the originality requirement as it pertains to musical compositions, see infra notes 159–63. In joint works, an ongoing area of dispute is whether contributions need to satisfy a “non-de minimis” standard or should be independently copyrightable: these approaches are associated with Professors Melville and David Nimmer (the “Nimmer standard”), 1 Nimmer & Nimmer, supra note 30, § 6.07, at 6-20 to 6-21, and Paul Goldstein (the “Goldstein standard”), Paul Goldstein & P. Brent Hugenholtz, International Copyright 248 (2d ed. 2010), respectively. Most circuits follow the latter standard.

Furthermore, it wasn’t until Thomson v. Larson, 147 F.3d 195, 202 (2d Cir. 1998) that the Childress analysis was held to apply to fact patterns in which lesser contributions were “major,” or of a type that would be independently copyrightable. This led to the “conundrum” of Thomson having made independently copyrightable contributions on a non-work-made-for-hire basis to a work of which she was not an author. Id. at 205. The pressing question (if Thomson was not a co-author of the work, could she then enjoin the Larson heirs from producing Rent with the lines she contributed?) was avoided by the court on procedural grounds and formed the basis of subsequent litigation. See Jesse McKinley, Family of ‘Rent’ Creator Settles Suit Over Authorship, N.Y. Times (Sept. 10, 1998), https://www.nytimes.com/
1998/09/10/theater/family-of-rent-creator-settles-suit-over-authorship.html [https://perma.cc/MV99-HPTA]. This issue appears never to have been resolved in the circuit. See Kwan v. Schlein, No. 05 CIV. 0459 (SHS) (JCF), 2009 WL 10678967, at *5 (S.D.N.Y. Apr. 23, 2009) (“[W]hile it seems clear that Ms. Kwan is not a co-author, it is possible that, if her contributions were great enough, she might own a copyright as sole author in the portions she wrote.”).

Erickson, 13 F.3d at 1064.

A common approach in this line of cases was for the court to dismiss lesser contributions as “suggestions.” Erickson, 13 F.3d at 1072; Childress, 945 F.2d at 509; see also Thomson, 147 F.3d at 206 (defendant brief refers to plaintiff’s independently copyrightable contributions as “suggestions”). “Suggestions” says nothing as to the copyrightability of those contributions; it makes their relevance turn on their relationship to the control factor. Later cases would arguably turn on “control,” often to the near-complete exclusion of copyrightability considerations.

Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).

Id. at 1231.

Id.

Id. at 1235 (“Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make.”). Referencing Childress’s description of the putative co-author’s contributions in that case as merely “some form of assistance,” id. (citing Childress, 945 F.2d at 504), the Aalmuhammed court envisioned a parade of horribles likely to follow if lesser contributors were granted co-authorship in joint works: “Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were doing . . . .” Aalmuhammed, 202 F.3d at 1235–36. The work in the case at hand, Aalmuhammed’s work, fit into none of those suspect classifications. Here, the court is groping at a basis for a potential standard for when joint authorship is likely intended: note that the court appears to see the existence of a close relationship as indicative of a lack of co-authorship intent.

See id. at 1233 n.24.

Id. at 1235 (“Aalmuhammed did not at any time have superintendence of the work. Warner Brothers and Spike Lee controlled it.” (citation omitted)).

Modern cases cite typically to Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008), which restated the Aalmuhammed factors as a concise test:

First, we determine whether the “putative co-authors ma[de] objective manifestations of a shared intent to be co-authors.” A contract evidencing intent to be or not to be coauthors is dispositive. Second, we determine whether the alleged author superintended the work by exercising control. Control will often be the most important factor. Third, we analyze whether “the audience appeal of the work” can be attributed to both authors, and whether “the share of each in its success cannot be appraised.”

Id. (citations omitted). In the absence of a contract, “control” or lack thereof is generally sufficient for determining co-authorship intent. To date, no case has turned on the “audience appeal” factor. For a comprehensive discussion of audience appeal’s role in joint authorship cases, see Timothy J. McFarlin, Shouting the People: Authorship and Audience in Copyright, 93 Tul. L. Rev. 443, 469–79 (2019).

In Ford v. Ray, 130 F. Supp. 3d 1358, 1363 (W.D. Wash. 2015), the putative co-author had allegedly contributed the beat that was the “basis for the song” and scratching for the chorus and solos. Applying Aalmuhammed, his claim was defeated because he lacked control over the whole composition, there were no objective manifestations of shared intent, and the court drew no conclusion on the audience appeal prong though he had allegedly contributed the beat that was the “basis for the song” and scratching for the chorus and solos. Id. at 1363–64. In addition to the plaintiff having waited too long to bring the claim, the court clearly did not countenance that a lesser contributor could fairly expect to be entitled to co-authorship status. Id. The court’s comments normatively take for granted that co-authorship for lesser co-authors is at the discretion of the dominant author, characterizing the plaintiff as “motivated by an unfair desire to cash in on the efforts of another.” Id. at 1364; see also Robertson v. Burdon, No. ED CV18-00397 JAK (SHKx), 2019 U.S. Dist. LEXIS 85468, at *19 (C.D. Cal. Apr. 3, 2019) (“The allegations . . . support the inference that [the plaintiff] and [the defendant] shared an intent that the songs would be written together.”).

In a case involving three putative co-songwriters, Taylor v. Universal Music Corp., No. CV 13-06412 RGK (AJWx), 2014 U.S. Dist. LEXIS 195775, at *8–10 (C.D. Cal. Mar. 10, 2014), the district court appeared to require (at most) a lessened Aalmuhammed standard for a joint authorship claim to survive a motion to strike. (The standard was applied in full to the related sound recording.) The court referenced dicta in Aalmuhammed, similarly present in Childress, that “traditional” forms of joint authorship, for instance involving the music and lyrics of a song, might not require a full Aalmuhammed inquiry. See id. at *4 (citing Aalmuhammed, 202 F.3d at 1232); cf. Childress, 945 F.2d at 508 (“[Whether the putative joint authors regarded themselves as joint authors] requires less exacting consideration in the context of traditional forms of collaboration, such as between the creators of the words and music of a song.”). This is the only case I have found in which a court operating under the control standard was willing to consider the dicta that the test should perhaps be less stringent when involving traditional forms of co-authorship.

See Aalmuhammed, 202 F.3d at 1232 (“It is also easy to apply the word [“author”] to two people who work together in a fairly traditional pen-and-ink way, like, perhaps, Gilbert and Sullivan. . . . But as the number of contributors grows and the work itself becomes less the product of one or two individuals who create it without much help, the word is harder to apply.”).

See id. at 1233 (“Burrow-Giles defines author as the person to whom the work owes its origin and who superintended the whole work, the ‘master mind.’ ” (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884))); see also Moi v. Chihuly Studio, Inc., No. C17-0853RSL, 2019 U.S. Dist. LEXIS 103576, at *9 (W.D. Wash. June 20, 2019); Beautiful Slides, Inc. v. Allen, No. 17-cv-01091-MMC, 2018 U.S. Dist. LEXIS 226907, at *8 (N.D. Cal. Sept. 7, 2018) (“[The defendant] contends she ‘had her roles for which she had nearly exclusive control’ . . . .”).

Reinsdorf v. Skechers U.S.A., 922 F. Supp. 2d 866, 872 (C.D. Cal. 2013) (quoting Morrill v. Smashing Pumpkins, 157 F. Supp. 2d 1120, 1124 (C.D. Cal. 2001)). But see Heger v. Kiki Tree Pictures, Inc., No. CV 17-03810 SJO (Ex), 2017 U.S. Dist. LEXIS 237195, at *13–16 (C.D. Cal. July 24, 2017) (explicitly repudiating this interpretation).

In 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 252–53 (2d Cir. 2015), a director claimed joint authorship in a film in which the producer (as in Aalmuhammed) had failed to secure a work for hire agreement. The Second Circuit held that the “dispositive inquiry is which of the putative authors is the ‘dominant author,’ ” and cited the four Thomson factors—decisionmaking authority, billing or credit, agreements with third parties, and other evidence—in making the determination. Id. at 260. But whereas in Thomson the dominant author was found to be the one who contributed the significant majority of independently copyrightable material, Casa Duse’s authorship was predicated on an Aalmuhammed­like control standard, in which authorship requires no independently copyrightable creative contribution: “Casa Duse initiated the project; acquired the rights to the screenplay; selected the cast, crew and director; controlled the production schedule; and coordinated (or attempted to coordinate) the film’s publicity and release.” Id. The court held that these contributions represented greater control over the project than did the contributions of the director and therefore awarded sole authorship to the production company. Id. at 261; see also Anthony J. Casey & Andres Sawicki, The Problem of Creative Collaboration, 58 Wm. & Mary L. Rev. 1793, 1835 (2017) (“The court created the fiction of a dominant author and then that label was bestowed on the party exercising the fewest acts of creative authorship. It had to do this to consolidate formal ownership and authorship . . . .” (citation omitted)).

In Corwin v. Quinonez, 858 F. Supp. 2d 903, 912 (N.D. Ohio 2012), the plaintiff band member’s contributions to sound recordings were denied joint authorship status due to lack of mutual intent with the defendant band leader, principally under the control standard: the defendant did not “cede[] control of the recordings to Plaintiff” and “made the final decision of what [was] used for the song.” As in Aalmuhammed, the language used by the court here presupposes a single author despite the undeniably collaborative nature of the work. Corwin cites principally to Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994), but also to Janky v. Lake Cnty. Convention & Visitors Bureau, 576 F.3d 356 (7th Cir. 2009). In Janky, the Seventh Circuit found joint authorship in a case in which the putative co-songwriter likely did not make an independently copyrightable contribution, see Janky, 576 F.3d at 364 (Ripple, J., dissenting), partly on the theory that the co-author “wielded considerable control over what the song finally looked like,” id. at 362. (Janky followed the earlier Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) in repudiating, at least in certain circumstances, the Seventh Circuit’s longstanding adherence to the Goldstein standard.) Janky is, for now, the exception that tests the rule that the control standard is strictly a one-way ratchet for denying joint authorship claims. Its legacy across the circuits may be to serve as a means of granting authorship within the control framework to a party who has made no copyrightable contribution, and possibly no creative contribution at all.

On very rare occasions, as in Aalmuhammed itself, unrewarded creative contributors have been allowed to pursue recovery under unjust enrichment or similar theories, although rarely with success. See, e.g., Ahn v. Midway Mfg. Co., 965 F. Supp. 1134, 1140 (N.D. Ill. 1997); Cabrera v. Teatro Del Sesenta, Inc., 914 F. Supp. 743, 769 (D.P.R. 1995). But see Lopez v. Musinorte Ent. Corp., 434 F. App’x 696, 699 (9th Cir. 2011) (upholding a jury award in which one member of a five-member band had received one-fifth of the band’s profits and future royalties).

As discussed supra, influential rulings in joint authorship issue primarily from the Ninth and Second Circuits. The Ninth (32.38%) and Second (16.71%) are also the two circuits that produce the largest volume of copyright litigation. Christopher A. Cotropia & James Gibson, Copyright’s Topography: An Empirical Study of Copyright Litigation, 92 Tex. L. Rev. 1981, 2000 (2014). The districts in which most of these cases originate (the Central District of California and the Southern District of New York) disproportionately find for the defendants in copyright cases. Id. at 2008. Three out of four plaintiffs in the Central District of California (77.46%) are “individuals or small firms.” Id. The most common type of copyright registration for individuals is “text and music” (that is, songs). Dotan Oliar, Nathaniel Patterson & K. Ross Powell, Copyright Registrations: Who, What, When, Where, and Why, 92 Tex. L. Rev. 2211, 2214 (2014).

That is, if the desired end was co-authorship of a joint work. Recovery less than “all” but more than “nothing” could potentially have been pursued through a claim of copyright infringement. Indeed, it is by analogy to recovery in infringement that scholars have advanced the possibility of proportional recovery in joint authorship. See Nimmer & Nimmer, supra note 30, § 6.08. Joint authorship typically arises in litigation as an affirmative defense to copyright infringement. In the leading cases, infringement claims are rarely advanced. This may be because, applying the analogy to infringement damages, recovery in most cases would not be worth the cost of litigation. But when it is undeniable that the creator contributed independently copyrightable material, a significant question is whether, absent an agreement to the contrary, they retain a separate copyright interest in that material. The retention of such a right in a commercial work would place significant pressure on the majority owner to settle to avoid hold-up costs. That is in fact how the Thomson case was ultimately resolved, and likely explains the ruling in Casa Duse that a director had no copyright interest in the film footage that he shot.

Goldstein, supra note 9, § 4.2.1.2, at 4:18.3.

In contrast to the courts, scholars often express concern over disincentivizing effects of joint authorship law on lesser contributors. See Abraham Bell & Gideon Parchomovsky, Copyright Trust, 100 Cornell L. Rev. 1015, 1020–21 (2015); Gregory N. Mandel, Left-Brain Versus Right-Brain: Competing Conceptions of Creativity in Intellectual Property Law, 44 U.C. Davis L. Rev. 283, 349–50 (2010); Jennifer Yamin, Note, Analyzing Aalmuhammed v. Lee in the Context of Entertainment Industry Employment, 8 NYU J. Intell. Prop. & Ent. L. 91, 114 (2018). Arguments in favor of authorship for lesser contributors are often subsumed within arguments in favor of proportionality, typically on fairness or efficiency grounds. See Mandel, supra, at 353 (“The outcomes would be more efficient because they would provide the proper incentives to potential collaborators . . . . The outcomes would be more equitable because each joint creator would be rewarded in appropriate proportion to his or her contribution.”). Other objections are purely legal: specifically, that nothing in the Copyright Act or the circumstances surrounding its enactment supports the idea that authorship requires equal contributions. See Mary LaFrance, Authorship, Dominance, and the Captive Collaborator: Preserving the Rights of Joint Authors, 50 Emory L.J. 193, 232 (2001).

Professor Mary LaFrance offers this proposal: “Where [the] contribution is substantial as well as independently copyrightable, joint authorship should be presumed, and a party seeking to rebut that presumption would be required to show that the contribution in question was incorporated into the finished work under an express or implied derivative work license.” LaFrance, supra note 76, at 203.

Contra 1 Nimmer & Nimmer, supra note 30, § 6.08 (“If the only choice that the court faced was between making Aalmuhammed a half-owner or a non-owner of the resulting film, then that hard case would understandably force the bad law of the latter result.” (citation omitted)); Anthony J. Casey & Andres Sawicki, Copyright in Teams, 80 U. Chi. L. Rev. 1683, 1721 (2014). Goldstein also offers a less radical compromise, consistent with the logic of Childress, suggesting that courts could find an implied transfer of copyright ownership on the basis of the nature of the relationship between the collaborators. Goldstein, supra note 9, § 4.2.1.1. The example given is the editor and author relationship: editors rarely expect to share joint authorship in the work they edit. Similarly, given the prevalence of work for hire agreements in the film industry, it could fairly be said that Aalmuhammed did not expect to be a joint author of Malcolm X. However, Aalmuhammed testified that he approached an executive producer seeking credit as a screenwriter and was told “there is nothing I can do for you,” but that they would discuss the matter in the future. Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000).

See Goldstein, supra note 9, § 4.2.1.1.

Id.

Childress places that burden on the nondominant contributor. See Childress v. Taylor, 945 F.2d 500, 507 (2d Cir. 1991).

See, e.g., Mandel, supra note 76, at 353–57.

Paying high- and low-performing workers the same leads high performers to lower their efforts. Jason D. Shaw, Pay Dispersion, 1 Ann. Rev. Org. Psych. & Org. Behav. 521 (2014).

Perhaps intuitions are less strict than absolute proportionality, but they would at least require that the individual who contributed the most received the most; the individual who contributed the second most, the second most; and so on: that fairness requires a rank order between inputs and outputs.

Aristotle, who noted that “in acts of justice what is equal in the primary sense is that which is in proportion to merit, while quantitative equality is secondary,” was an early proponent of this construction of fairness. Aristotle, The Nicomachean Ethics 151 (David Ross trans., Oxford World’s Classics ed. 2009). This dynamic between inputs and outputs is referred to as “equity” in justice studies; in sociology it has been called the “principle of differentiation”; in organizational behavior, “pay dispersion.” The boundaries of the concept shift only slightly across disciplines. See Morton Deutsch, Equity, Equality, and Need: What Determines Which Value Will Be Used as the Basis of Distributive Justice?, 31 J. Soc. Issues 137, 143 (1975); Jennifer L. Hochschild, What’s Fair: American Beliefs About Distributive Justice 111 (1986); Shaw, supra note 83.

Other scholars propose alternate regimes that allow for proportional recovery. See Bell & Parchamovsky, supra note 76 (proposing a “copyright trust” that would allow for one controller of the work while contributors divided profits in proportion); Casey & Sawicki, supra note 78, at 1725 (separate authorship from ownership and grant ownership to the joint work’s “team manager”); Rochelle Cooper Dreyfuss, Commodifying Collaborative Research, in The Commodification of Information 397, 412 (Niva Elkin-Koren & Neil W. Netanel eds., 2002) (allow proportionality via “collaborative work[s]” that are not work for hire but fail the joint authorship test); Russ VerSteeg, Intent, Originality, Creativity and Joint Authorship, 68 Brook. L. Rev. 123, 179 (2002) (allow proportional recovery in quantum meruit if joint authorship is objectively unreasonable).

See Brief of Professors Shyamkrishna Balganesh. Justin Hughes, Peter Menell, and David Nimmer as Amici Curiae in Support of Neither Party at 28–29, Garcia v. Google, Inc., 786 F.3d 733 (2015); Nimmer & Nimmer, supra note 30, § 6.08 (2019); Hughes, supra note 31, at 65–67 (2019); Roberta Rosenthal Kwall, “Author-Stories”: Narrative’s Implications for Moral Rights and Copyright’s Joint Authorship Doctrine, 75 S. Cal. L. Rev. 1, 58 (2001); Benjamin E. Jaffe, Rebutting the Equality Principle: Adapting the Co-Tenancy Law Model to Enhance the Remedies Available to Joint Copyright Owners, 32 Cardozo L. Rev. 1549 (2011).

“Under the bill, as under the present law, coowners of a copyright would be treated generally as tenants in common, with each coowner having an independent right to use or license the use of a work, subject to a duty of accounting to the other coowners for any profits.” H.R. Rep. No. 94-1476, at 121 (1976).

What is often left unexplained with these proposals is whether lesser contributors would only be entitled to royalties in proportion to their contribution, or whether they would have full authorial rights, such as the right to license the work on a nonexclusive basis.

See Richard A. Hillman, The Richness of Contract Law 225 (1997) (noting the standard view that the rule most parties would want is synonymous with the efficient rule).

See Alan Schwartz & Robert E. Scott, The Common Law of Contract and the Default Rule Project, 102 Va. L. Rev. 1523, 1585–86 (2016) (“[E]nduring common law rules have to be transcontextual; that is, they must be satisfactory to parties over broad sections of the economy. . . . [F]ew rules can satisfy the structural requirement that they are (almost) everywhere applicable just because commercial parties (almost) everywhere like them.”).

The tenure of the equal split rule is comparably long to the cohort of common law contract default rules argued to have stood the test of time as trans-contextually acceptable to parties and therefore efficient. See id. at 1535. It has similarly satisfied the criteria of having been applied and accepted in different industry contexts. See, e.g., Greene v. Ablon, 794 F.3d 133 (1st Cir. 2015) (scholarship); Brownstein v. Lindsay, 742 F.3d 55 (3d Cir. 2014) (software); Berman v. Johnson, 518 F. Supp. 2d 791 (E.D. Va. 2007), aff’d, 315 F. App’x 461 (4th Cir. 2009) (film); Gordon v. Lee, No. 1:05-CV-2162-JFK, 2007 WL 1450403 (N.D. Ga. May 14, 2007) (architecture); Words & Data, Inc. v. GTE Commc’ns Servs., Inc., 765 F. Supp. 570 (W.D. Mo. 1991) (business); Strauss v. Hearst Corp., No. 85 CIV. 10017 (CSH), 1988 WL 18932 (S.D.N.Y. Feb. 19, 1988) (advertising); Fishing Concepts, Inc. v. Ross, 226 U.S.P.Q. 692, 696 (D. Minn. 1985) (advertising); Mister B Textiles, Inc. v. Woodcrest Fabrics, Inc., 523 F. Supp. 21 (S.D.N.Y. 1981) (textiles); Donna v. Dodd, Mead & Co., 374 F. Supp. 429, 430 (S.D.N.Y. 1974) (literature); Noble v. D. Van Nostrand Co., 164 A.2d 834 (N.J. Super. Ct. Ch. Div. 1960) (scholarship); G. Ricordi & Co. v. Columbia Graphophone Co., 258 F. 72 (S.D.N.Y. 1919) (music). The expansive treatment of work made for hire under the Copyright Act of 1909 may have forestalled potential joint authorship claims and thus challenges to the equal split.

Shaw notes: “Moreover, theories purportedly supporting the benefits of pay compression do not, in a general sense, advocate equal pay for unequal work. . . . [E]ven Pfeffer’s (1998) simplified practitioner-oriented treatment, which advocates pay compression as a best practice, also extols individual pay-for-performance as something organizations should universally adopt.” Shaw, supra note 83, at 534 (citing Jeffrey Pfeffer, Competitive Advantage Through People: Unleashing the Power of the Work Force (1994)). It is not clear what inputs are, but they are somehow quantitative and contextually determined. Often there is an assumption that focal inputs should be those antecedents with a more direct link to outcomes. See Robert Folger, Rethinking Equity Theory, in Justice in Social Relations 145 (Hans Werner Bierhoff, Ronald L. Cohen & Jerald Greenberg eds., 1986).

Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 Cornell L. Rev. 608, 616 (1998).

The World Intellectual Property Organization (“WIPO”) identifies the core copyright industries as those “wholly engaged in the creation, production and manufacture, performance, broadcasting, communication and exhibition, or distribution and sale of work and other protected subject matter.” World Intell. Prop. Org., Guide on Surveying the Economic Contribution of the Copyright Industries 51 (2015), https://www.wipo.int/edocs/pubdocs/en/copyright/893/wipo_pub_
893.pdf [https://perma.cc/E8AD-9ZQ7]. These include literature, music, theatre, film, the media, photography, software, visual arts, advertising services, and collective management societies. Id. at 52–53.

Approximately 500,000 pieces of contemporary art—works of “painting, sculpture, drawing, photography, prints, installation & video” created by artists born after 1945—were sold at auction in the last decade. See The Contemporary Art Market Report 2018, Artprice, https://www.artprice.
com/artprice-reports/the-contemporary-art-market-report-2018 [https://perma.cc/4S6J-W2JS]. The Museum of Modern Art (“MoMA”) Collection dataset (“MoMA dataset”) contains records of nearly 200,000 artworks and their creators, including dates of birth and death, year of creation, artwork type, and date of creation. See The Museum of Modern Art (MoMA) Collection, Github, https://github.com/MuseumofModernArt/collection [https://perma.cc/Z2H8-CDD4]. Filtering the dataset for contemporary artists (artists born 1945 or later) returns 21,238 works, 20,952 of which were created by a single artist, or a co-authorship rate of 1.3%. Extrapolating based on the Artprice data, approximately 6,500 pieces of co-authored art have been auctioned over the last ten years.

10/2358 (“Painting” Classification) in MoMA dataset. The Museum of Modern Art (MoMA) Collection, supra note 96.

16/1725 (“Sculpture” Classification) in MoMA dataset. Id.

1449/31730 (“Photography” Classification) in MoMA dataset. Id.

Hereinafter, “songs” refers to songs listed in performance rights organization databases.

See infra Section IV.B.

See Patrick Cauldwell, Code Leader: Using People, Tools, and Processes to Build Successful Software xxi (2008) (noting that “almost all software projects” are written by teams of programmers).

See supra note 101 and accompanying text.

Approximately 3 million articles are published yearly in scholarly peer-reviewed English-language journals. Rob Johnson, Anthony Watkinson & Michael Mabe, The STM Report: An Overview of Scientific and Scholarly Publishing 5 (5th ed. 2018), https://www.stm-assoc.org/2018_10_04_STM_Report_2018.pdf. Outside of the humanities, the vast majority of scholarly articles are co-authored. See Smriti Mallapaty, Paper Authorship Goes Hyper, Nature Index (Jan. 30, 2018), https://www.natureindex.com/news-blog/paper-authorship-goes-hyper [https://perma.cc/27AH-P6P9].

As set forth by statute,

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C § 201(b) (2016).

The Copyright Act defines a work made for hire as,

a work prepared by an employee within the scope of his or her employment; or . . . a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

17 U.S.C. § 101 (2016).

Modern courts have not typically held musicians to be employees of their record labels. See Daniel Gould, Time’s Up: Copyright Termination, Work-for-Hire and the Recording Industry, 31 Colum. J.L. & Arts 91, 109 (2007). Sound recordings, mentioned elsewhere in the Act, are also notably absent from the list of works made for hire, a circumstance which has generated considerable scholarly comment. See, e.g., Nimmer & Nimmer, supra note 30, § 5.03; Gould, supra, at 108 (2007); Mary LaFrance, Authorship and Termination Rights in Sound Recordings, 75 S. Cal. L. Rev. 375, 379 (2002). Sound recordings have been held not to fall under the “audiovisual work” label. Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 878 (5th Cir. 1997). Works made for hire are otherwise confined strictly to the categories of work enumerated in section 101. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 748 (1989). Even when music is composed as a work made for hire, royalties are distributed to the actual author per ASCAP rules. Robert Brauneis, Copyright and the World’s Most Popular Song, 56 J. Copyright Soc’y U.S.A. 335, 411 (2009).

See Nimmer & Nimmer, supra note 30, § 6.05 n.19 (“The reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world.” (quoting Garcia v. Google, Inc., 786 F.3d 733, 743 (9th Cir. 2015))).

Academic journal revenue is roughly three times larger than that of academic book publication. See Johnson et al., supra note 104, at 22. Over 3 million science, technology, and medicine (“STM”) scholarly articles are published per year. Id. at 5.

See Ann Okerson, With Feathers: Effects of Copyright and Ownership on Scholarly Publishing, 52 Coll. & Rsch. Libr. 425, 427–28 (1991).

While authors typically retain their copyrights in the work under an open access regime, the works are often published under royalty-free licenses. See Giancarlo Frosio, Open Access Publishing: A Literature Review 98 (Ctr. For Copyright & New Bus. Models in the Creative Econ., Working Paper 2014/1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2697412 [https://perma.cc/UJ6L-7W4X].

See Nimmer & Nimmer, supra note 30, § 6.05 n.19 (“The reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world.” (quoting Garcia v. Google, Inc., 786 F.3d 733, 743 (9th Cir. 2015))).

See 17 U.S.C. § 101 (2016).

These are often structured as funds, which combine the recording budget with advances against royalties in a lump sum, but traditional advances are still utilized. See Donald S. Passman, All You Need to Know About the Music Business 111 (9th ed. 2015). In exchange, most artists transfer the copyrights to their recordings (“the masters”) to the label. See id. at 211.

Songwriters often sign away a portion of their songwriting copyrights to publishers through co-publishing agreements. See id. at 235; Jill A. Michael, Music Copublishing and the Mysterious ‘Writer’s Share,’ 20 Ent. & Sports L. 13, 14 (2002). Record labels may also take a portion of the songwriting copyright, or the proceeds thereof, as part of a “360 deal.” See Edward Pierson, Negotiating a 360 Deal: Considerations on the Promises and Perils of a New Music Business Model, 27 Ent. & Sports L. 1, 34 (2010).

Theater is probably the closest analogue. Like songwriting, it has been the domain of several landmark joint authorship cases, discussed supra. See Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998); Erickson v. Trinity Theater, Inc., 13 F.3d 1061 (7th Cir. 1994); Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991).

Polcz, supra note 7, at 38.

ACE Repertory Search, ASCAP, https://www.ascap.com/repertory [https://perma.cc/8A8F-QB3W] [hereinafter ASCAP Repertory]. The downloadable version in CSV format (current as of Mar. 26, 2020) was used.

See Justin Hughes & Robert P. Merges, Copyright and Distributive Justice, 92 Notre Dame L. Rev. 513, 532 (2016) (“[E]ven in the music industry—and with access to very little empirical data—we can see the powerful role that copyright plays in securing incomes for creative individuals.”) Justin Hughes and Robert Merges also note the importance of the copyright system in advancing African-American prosperity at a time when the failure of other systems to do so is being increasingly, if belatedly, recognized. See id. at 551–55.

See id. at 532–33 (making as a “low-ball estimate,” PROs collected at least $4.1 billion in public performance royalties for songwriters in the 2010 to 2014 period).

In 1978, the Copyright Act revised the mechanical royalty rate, which had remained unchanged since the Copyright Act of 1909 set it at 2 cents per song. Royalties started at 2.75 cents per song, and have increased to 9.1 cents per song today. U.S. Copyright Off., Mechanical License Royalty Rates, https://www.copyright.gov/licensing/m200a.pdf [https://perma.cc/PNY6-7S5N].

American popular music of the pre-rock era was largely written by professional songwriters, rather than songwriter-performers. See generally Russell Sanjek, American Popular Music and Its Business: The First Four Hundred Years (1988).

See id. at 537–39.

See id. at 473.

Royalties generally, and songwriting royalties in particular, took a significant hit from the rise of streaming music, legal and otherwise. Streaming as a whole has undercut physical music sales. See John Seabrook, The Song Machine: Inside the Hit Factory 187 (2015). Even legal streaming services like Spotify can offer little benefit to songwriters. Id. at 188 (“On most streaming services . . . the owners of the recording get most of the performance royalty money, while the owners of the publishing get only a fraction of it.”); Jason B. Bazinet, Mark May, Kota Ezawa, Thomas A. Singlehurst, Jim Suva, Alicia Yap, Jennifer Breithaupt, Kevin Brown & Bjorn Niclas, Putting the Band Back Together: Remastering the World of Music 74 (2018), https://www.citivelocity.com/
citigps/music-industry/ [https://perma.cc/HAG2-5TR9] (“[I]f you are a fully independent artist, you are likely to earn around $15,000-$20,000 per million plays on a streaming service and that gets split between the writers . . . . [I]f you are on an ‘old industry’ label, you can expect to only get $1,700 per million plays, because the label is taking the lion’s share . . . .”) Labels feeling the pinch from declining physical sales have also increasingly turned to “360 deals,” whereby artists are obliged to surrender percentages of other revenue streams (like songwriting) in order to land a recording contract. See Passman, supra note 114, at 102–03; Lee Marshall, The 360 Deal and the New Music Industry, 16 Eur. J. Cultural Stud. 77 (2012). Increasing royalties from digital streaming may indicate that the importance of this revenue stream will only increase in the future. See Ed Christman, NMPA Claims Victory: CRB Raises Payout Rate from Music Subscription Services, Billboard (Jan. 27, 2018), https://www.billboard.
com/articles/news/8096590/copyright-royalty-board-crb-nmpa-spotify-apple-music-streaming-services [https://perma.cc/YC99-TWH5]; U.S. Sales Database, RIAA, https://www.riaa.com/u-s-sales-database/ [https://perma.cc/GA2H-EZMJ] (showing a reversal in recorded music revenue decline due to the growth of monetized streaming).

See Future of Music Coa., Artist Revenue Streams: Case Study: Indie Rock Composer-Performer 9 (Mar. 15, 2012), http://money.futureofmusic.org/wordpress/wp-content/uploads/2012/03/ARScasestudyA.pdf [https://perma.cc/6UUY-MLPN]. This information was gathered by the Future of Music project, which sought to compile information on musicians’ and composers’ revenue streams via surveys and interviews. See Artist Revenue Streams, Future of Music Coa., http://futureofmusic.org/article/research/artist-revenue-streams [https://perma.cc/XMS3-VHNK]. For a discussion of the survey’s results, see Peter DiCola, Money From Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives, 55 Ariz. L. Rev. 301 (2013).

The survey found that “[m]usicians in rock, pop, country, folk and all other genres [other than classical or jazz] earn 8% of their revenue from compositions.” DiCola, supra note 126, at 329.

Self-identified composers, including both performers and non-performers, earned 39%. Id.

See, e.g., Dean Goodman, Songwriter “Dirty Dancing” All The Way to the Bank, Reuters (Nov. 10, 2010), https://www.reuters.com/article/uk-dirtydancing/songwriter-dirty-dancing-all-the-way-to-the-bank-idUKTRE6A84IJ20101110 [https://perma.cc/T3B8-MUP5] (“Previte estimates that he gets quarterly checks of $10,000 to $30,000 for radio airplay, additional quarterly checks of $50,000 to $100,000 from the hit stage adaptation, and annual checks of $100,000-$125,000 when [1987’s “(I’ve Had) The Time of My Life”] is used in commercials.”); J.J. Cale: A Veteran Songwriter’s ‘Old Man’ Music, NPR (Feb. 25, 2009), https://www.npr.org/2009/02/25/101148876/a-veteran-songwriters-old-man-music [https://perma.cc/S9HM-STKD] (“Those royalty checks keep coming in, so Cale doesn’t have to tour or record much.”).

Synchronization fees vary based on the media, how the song is used, how much of the song is used, and the status of the songwriter. Passman, supra note 114, at 265–66. Typical fees for using songs in television shows can range from $10,000 to $50,000 or more, depending on the previous popularity of the song and how prominently it features. Id. at 269. These fees will scale if, for example, the song is licensed for less or more than a year. If the master is being used in addition to the song, a master use license is also required; this is typically equal in cost to the synchronization fee. Id. at 265.

For instance, if an artist accepts a low-ball offer in exchange for audience exposure. Id. at 269.

Id. at 270.

There is also the view that the most efficient default rule for a given fact pattern may not be a “majoritarian” default, but rather a “penalty” default: a default that most contracting parties would not prefer. See, e.g., Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 91 (1989) (explaining that penalty defaults are intended to serve a twofold information-forcing purpose: to force one party to reveal to another information that, if concealed, could increase their private gain on the contract at the expense of the total gain; and to force parties to reveal information to courts when it would be less efficient for courts themselves to discover it.) The equal split default was clearly not intended as a penalty default: it was derived from the equal split rule in tenancy in common, which was itself not intended as a penalty default. Judge Hand’s (and subsequent courts’) reasoning does not support such a reading. Judge Hand disagreed with courts dividing joint authorship shares other than equally, not because he thought it would impose a fact-finding burden on the court that would be better placed on the parties, or because he identified an asymmetry of information or market power between the parties, but because he regarded it (correctly or not) as philosophically impossible. Maurel v. Smith, 220 F. 195, 200 (S.D.N.Y. 1915). Could the equal split default function as a penalty default? Assuming majority or plurality contributors do not want to split equally, it would serve as a penalty default to them. But majoritarian defaults are penalty defaults to those not in the numerical majority; in most arrangements, the lesser contributors would be the more numerous beneficiaries. Furthermore, the only relevant information that might be withheld is the existence of the default itself; there is no reason to suppose that majority contributors, as a rule, would be the more legally well-informed parties. (Well-informed lesser contributors would be incentivized to strategically withhold information.) Also, while a proportional default would indeed impose additional fact-finding on courts, creative labor is particularly ill-suited to ex ante bargaining. Any efficiency gain likely to arise from compelling authors to quantify their contributions in advance would therefore be small, and might actually hinder creative production. This consideration may inform, at least in part, the lack of equal split defaults in non-American jurisdictions. See infra notes 142–44.

See, e.g., Richard A. Epstein, In Defense of the Contract at Will, 51 U. Chi. L. Rev. 947, 951 (1984) (selecting a rule “because it reflects the dominant practice in a given class of cases and because that practice is itself regarded as making good sense for the standard transactions it governs”); Stewart J. Schwab, Collective Bargaining and the Coase Theorem, 72 Cornell L. Rev. 245, 286 (1987) (looking to “actual contracts” to determine “which party values the entitlement most highly”); J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 Wis. L. Rev. 837, 842 (1995) (using contract data to find support for a default rule in “[t]he revealed preferences of market participants”). An objection to modeling default rules on actual contracting behaviors is that, where a well-developed default rule already exists, the universe of contracting decisions is distorted by the existence of the default rule. Cf. Jacob Goldin & Daniel Reck, Revealed-Preference Analysis with Framing Effects, 128 J. Pol. Econ. 2759, 2760 (2020) (describing default rules as a type of framing effect); Cass R. Sunstein, Switching the Default Rule, 77 N.Y.U. L. Rev. 106 (2002) (discussing default rules and the endowment effect). Parties who find the default objectionable will explicitly contract out of it, while those who find it acceptable will leave a gap. See Ayres & Gertner, supra note 133, at 115–16. However, even among its detractors, this market-mimicking approach has been considered desirable in circumstances similar to those surrounding artistic creation in general and songwriting co-authorship in particular—for example, where parties are unaware of the default or lack a contract entirely, as the distorting effect would not be present. See id. at 115 n.122. Additionally, a large majority (75%) of bands maintain their split preferences over the lifetime of the band. See infra Section III.B.1.

The royalty splitting directions that co-songwriters provide to performance rights organizations (“PROs”) may or may not be backed up by a written contract. PRO registration is not a contract between co-authors, and only needs to be signed by one of a song’s co-authors or their legal agents. I argue that looking at actual allocating behavior is an effective proxy for looking at actual contracting behavior. For this reason, while presumptively all split directives will have incurred negotiating transaction costs, they may or may not also have incurred contracting transaction costs.

Registration forms must indicate the identities of the writers, their publishers and their respective royalty shares. See Work Registration Form, Broadcast Music, Inc., https://www.bmi.com/pdfs/work-reg-e.pdf [https://perma.cc/J6H9-CTST]. As registrations must be signed only “by an affiliated writer or an authorized representative of the submitting publisher,” they do not function as contracts between putative co-authors. Id. Similarly, split sheets—internal documents indicating the relative ownership shares of songwriting contributors—have been held not to provide “conclusive evidence of copyright ownership or authorship,” although they have evidentiary value in determining the validity of such a claim. See Montalvo v. LT’s Benjamin Records, Inc., No. CV 12-1568 (GAG), 2015 WL 13815393, at *5 (D.P.R. May 8, 2015).

The economic benefits of co-authorship involve the authors’ ability to profit from the copyright on either an exclusive (sale) or nonexclusive (license) basis. Exclusive transfers require the consent of all owners of the copyright; nonexclusive transfers can be executed by any single owner. While the practice of songwriters selling their catalogue is not unknown, the primary means by which they derive economic benefits from their work is through licensing.

See LaFrance, supra note 76, at 257; Timothy J. McFarlin, An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors, 66 Case W. Res. L. Rev. 701, 753 n.190 (2016).

Under one approach to the prevailing substantial similarity standard, finders of fact must “break[] the works ‘down into their constituent elements, and compa[re] those elements for proof of copying.’ ” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (quoting Rice v. Fox Broad. Co., 148 F.Supp.2d 1029, 1051 (C.D. Cal. 2001)) (describing the extrinsic test), and determine “whether the ordinary reasonable person would find ‘the total concept and feel of the works’ to be substantially similar,” Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991) (quoting Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir. 1988)) (describing the intrinsic test). Therefore, in an infringement action, the finder of fact continually makes percentage assignments both formal and informal. See, e.g., Copeland v. Bieber, 789 F.3d 484, 494 (4th Cir. 2015) (discussing the relative importance of the chorus in pop); Newton v. Diamond, 388 F.3d 1189, 1196 (9th Cir. 2004) (no infringement where the sampled portion “is roughly two percent of the four-and-a-half-minute ‘Choir’ sound recording”); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487 (9th Cir. 2000) (“The jury found that 28% of the album’s profits derived from the song, and that 66% of the song’s profits resulted from infringing elements.”), overruled by Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020); cf. 17 U.S.C. § 107(3) (fair use determined in part by “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”).

See McFarlin, supra note 65, at 490–91.

See Restatement (Third) of Torts: Apportionment Liab. § 8 (Am. L. Inst. 2000).

See Fisher v. Brooker, [2006] EWHC (Ch) 3239 (Eng.) (awarding a 40% share to a co-author of a copyrighted song, although Fisher had argued for a 50% share); Bamgboye v. Reed [2002] EWHC (QB) 2922 (Eng.) (awarding a one-third share).

Gesetz über das Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz) [UrhG] [Act on Copyright and Related Rights], Sep. 9, 1965, as amended, Art. 8(3) (Ger.), https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html [https://perma.cc/M33C-5Q42] (“Proceeds derived from the use of the work are due to the joint authors in accordance with the extent of their involvement in the creation of the work, unless otherwise agreed between the joint authors.”).

Another efficiency-based argument in favor of the existing equal split rule is that a proportional split rule would increase how often joint authorship is litigated, because co-authors would self-servingly bring claims arguing they are entitled to larger shares than their co-authors will acknowledge. However, this seems unlikely. See Mandel, supra note 76, at 356. (“Equitable apportionment would reduce the stakes of expected outcomes from litigation, which would be expected both to reduce litigation and to increase the rate of settlement of any litigation that is initiated.”).

Importantly, they are a non-arbitrarily defined set of music groups. Descriptions of the co-songwriting processes for songs by Gold Record bands are broadly similar to those of co-songwriting by less successful bands and in non-band collaborations; on this basis, comparable shares of songs written through even and uneven contributions are expected between the Gold Record bands and co-songwriting more generally. Sufficient information was found to code 96.16% of all Gold Record bands that primarily release songs written by band members. The percentage of results excluded for missing data is 3.84%, because either there was insufficient information available for songwriting process coding or writing credit information was absent or uninterpretable. This level of missing data has been characterized as inconsequential. See Yiran Dong & Chao-Ying Joanne Peng, Principled Missing Data Methods for Researchers, 2 SpringerPlus 222, 223 (2013) (citing Joseph L. Schafer, Multiple Imputation: A Primer, 8 Stat. Methods Med. Res. 3, 7 (1999)).

See supra text accompanying note 55 for general copyrightability considerations. See infra notes 159–64 and accompanying text for the analysis applied to data in this study.

Gold & Platinum, RIAA, https://www.riaa.com/gold-platinum/ [https://perma.cc/8SHS-2YRF].

The search of the RIAA Gold & Platinum database for Group and Duo artists resulted in an initial list of 1,669 group and duo performances, many of which were not by bands. The study excluded 666 search results. Search results were excluded for non-band group performances as well as bands mostly performing songs not written by band members (19.47% of results; for example, Mormon Tabernacle Choir or folk groups performing songs in the public domain), backing bands (4.55% of results; for example, Dave Matthews Band), and bands for which insufficient information was available concerning songwriting process or song credits (3.84% of results).

RIAA and GR&F Certification Audit Requirements: RIAA Album Award, RIAA (Mar. 2021), https://
http://www.riaa.com/wp-content/uploads/2021/03/ALBUM-AWARD-RIAA-AND-GRF-CERTIFICATION-AUDIT-REQUIREMENTS.pdf [https://perma.cc/R3LS-VZVM]. Gold certification indicates sales of 500,000 and Platinum of 1,000,000 units. A unit is defined as a physical or digital album sale, 10 permanent track downloads, 1,500 on-demand streams, or some combination of the above. Prior to 1975, Gold certification required $1 million in wholesale sales, with no unit sales requirement. See Adam White, The Billboard Book of Gold & Platinum Records viii (1990).

RIAA and GR&F Certification Audit Requirements: RIAA Digital Single Award, RIAA
(Feb. 2016), https://www.riaa.com/wp-content/uploads/2016/02/DIGITAL-SINGLE-AWARD-RIAA-AND-GRF-CERTIFICATION-AUDIT-REQUIREMENTS.pdf [https://perma.cc/M7RQ-ZXM9]. Gold certification indicates sales of 500,000 and Platinum of 1,000,000 units. A unit is defined as a permanent digital download, 150 on-demand streams, or some combination of the two. (Physical singles sales are now largely nonexistent.) Between 1976 and 1989, Platinum certification indicated sales of 2 million units. See White, supra note 149, at viii.

The sources consulted were primarily interviews, biographies and feature articles covering a band’s songwriting process and the degree of band members’ involvement.

To classify bands, I hired outside coders to compile and review publicly available sources of information on the songwriting processes of the Gold Record bands and to code them according to the songwriting contributions protocol. The reliability of source material for each band was classified by a coder as very strong, strong, satisfactory, or insufficient information (these bands were excluded). Source reliability was very strong when the code was based primarily on unambiguous direct interview quotes from the band members. Source reliability was strong when third-party quotes were drawn from mainstream or music-focused publications and clearly delineated the songwriting process. Satisfactory reliability was given to codes based primarily on tertiary or amateur sources. Overall, source reliability was very strong or strong for 78% of the bands and 22% satisfactory. Multiple sources support the coding of 87% of bands, and source reliability was very strong or strong a majority of the time (79%) when coding was based on a single source. An independent coder coded an overlap of 10% of the bands (100).

Band members’ contributions to songwriting were assessed on the basis of the writing process for individual songs, rather than the band’s overall song output. This means bands such as Queen, in which all band members contributed solo written songs to the group’s output more or less evenly, were coded as some members do not contribute, rather than as even contributions. While this approach has the potential to cloud the interpretation of co-authorship crediting, in practice the codes assigned at the per song level and overall output level converged 99% of the time.

First, the coders collected and coded data on a subset of the Gold Record bands. I fine-tuned the coding protocol, then all bands were re-coded. The design of the coding process incorporated guidelines, derived from Klaus Krippendorff and Kimberly Neuendorf, presented in Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 Cal. L. Rev. 63, 107–17 (2008). Interrater reliability was measured as 84.5% using Krippendorff’s alpha; percent agreement was 91%. Krippendorff’s alpha is a standard measure of agreement between multiple coders. See Klaus Krippendorff, Content Analysis: An Introduction to Its Methodology 221–22 (2d ed. 2004).

The footnoted sentences in this paragraph which follow are reproduced from Sarah Polcz, supra note 7, which relies upon the same dataset.

Uncontradicted assumptions were informed by genre norms; for example, rappers were taken to be delivering their own verses, and members of electronic dance music (“EDM”), rap and hip-hop groups described as “producers,” “programmers,” or “beat makers” were assumed to be making copyrightable musical contributions. See Tonya M. Evans, Sampling, Looping, and Mashing . . . Oh My!: How Hip Hop Music Is Scratching More than the Surface of Copyright Law, 21 Fordham Intell. Prop. Media & Ent. L.J. 843, 852–53 (2011); Chris Robley, Should My Producer Get Publishing and Songwriting Credit?, DIY Musician (July 11, 2018), https://diymusician.cdbaby.com/music-rights/does-my-producer-deserve-publishing-and-songwriting-credit [https://perma.cc/MF8P-DLS3]. If any band members were described as making only contributions to songs that are not legally considered songwriting—such as arrangement, suggestions or feedback—then their bands were coded as some members do not contribute. To distinguish between uneven and even contributions by band members, industry norms, where existing, supplied assumptions; for example, lyrics were weighted as comprising half of the song. See Daniel Abowd, FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights, 30 Fordham Intell. Prop. Media & Ent. L.J. 1311, 1329 (2020). Since compositions may be the product of jam sessions or studio experimentation, a sound recording may represent the fixed form of the composition. See Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d, 267, 276 (6th Cir. 2009); Robert Brauneis, Musical Work Copyright for the Era of Digital Sound Technology: Looking Beyond Composition and Performance, 17 Tul. J. Tech. & Intell. Prop. 1, 28 (2014) (“By 2012, 77% of musical work registrations were accompanied by phonorecord deposits and only 17% by deposits of musical notation . . . .”). With this in mind, coders were instructed to regard contributions as “arrangements”—contributions to the sound recording rather than the music composition—only when band members clearly described them as such, with the understanding that the interviewee was aware of the distinction. These represent the categories of contribution ruled not to be protectible under the Childress standard. See Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994); Childress v. Taylor, 945 F.2d 500, 509 (2d Cir. 1991); BTE v. Bonnecaze, 43 F. Supp. 2d 619, 623 (E.D. La. 1999) (holding no joint authorship when a musician contributes unfixed “ideas and helpful insights”). Interviewees discussed a variety of contributions, some copyrightable (whether to the composition or to the sound recording) and others likely not.

See, e.g., Tim Louie, An Interview with Sixx:A.M.: Returning with Their Own Prayers for the Damned, Aquarian (May 18, 2016), https://www.theaquarian.com/2016/05/18/an-interview-with-sixxa-m-returning-with-their-own-prayers-for-the-damned/ [https://perma.cc/2L9S-U4WU] (“It’s the three of us getting together in a room picking up instruments and talking. We talk a lot before we even start writing, discussing subject matters, and working through melody ideas, working through riff ideas and we all bring in ideas.”).

Additionally, the United States Copyright Office (“USCO”) was a source for the concept that a musical work consists of four copyrightable elements: melody, rhythm, harmony, and lyrics. U.S. Copyright Off., Compendium of U.S. Copyright Office Practices § 802.3 (3d ed. 2021).

Individual words and short phrases are typically denied copyright protection. Nimmer & Nimmer, supra note 30, § 2.01[B][3]. However, this general rule may not be applicable in a songwriting context. See Goldstein, supra note 9, § 2.8, at 2:102–2:102.1 (“[T]he Act’s inclusion of ‘accompanying words’ in its reference to musical works means that musical and lyrical elements that by themselves would not be sufficiently original and expressive to qualify for copyright may combine with each other to produce a copyrightable work.”) Courts have been willing to consider the copyrightability of lyrics that would not reach the originality threshold if published as a literary work. See, e.g., May v. Sony Music Ent., 399 F. Supp. 3d 169 (S.D.N.Y. 2019) (refusing to dismiss an infringement claim based on the lyric “We run things. Things no run we.”). It is unlikely that band members would be described as lyricists, lyric writers or lyrical contributors if their only contributions failed to meet this threshold of originality.

Goldstein wrote,

Melody in a musical composition consists of a succession of notes, as well as the long and short durations of individual notes, organized around the composition’s rhythm. Because melody is so salient, and is relatively unconstrained by musical convention, it is typically the principal vessel of originality in musical compositions.

Goldstein, supra note 9, § 2.8, at 2:102.1–2.

“Harmony gives depth to a musical composition. It might consist of two or more voices, separated by a constant span of notes, simultaneously singing the melody, or it might consist of chords—the simultaneous sounding of individual notes—harmoniously connected to each other and to the composition’s melody.” Goldstein, supra note 9, § 2.8, at 2:102.2. See also Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) (Blurred Lines Case) (finding no reversible error in an infringement verdict based substantially on rhythmic and harmonic elements). Harmonic elements appeared in the coding in the form of chords and chord progressions.

“Rhythm is the physical element of music, the steady beat that sets a listener’s fingers tapping. Although rhythm can be varied, the dictates of musical convention will typically constrain variety. As a result, courts rarely find originality in rhythm alone.” Goldstein, supra note 9, § 2.8, at 2:102.1–2; see also Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009) (rhythmic elements copyrightable); New Old Music Grp., Inc. v. Gottwald, 122 F. Supp. 3d 78 (S.D.N.Y. 2015) (drum part copyrightable); BMS Ent./Heat Music LLC v. Bridges, No. 04 CIV. 2584 (PKC), 2005 WL 1593013, at *1 (S.D.N.Y. July 7, 2005) (rhythmic elements copyrightable); Santrayll v. Burrell, No. 91 CIV. 3166 (PKL), 1996 WL 134803, at *1 (S.D.N.Y. Mar. 25, 1996) (rhythmic elements copyrightable). Rhythmic songwriting elements often appeared in the coding in the form of drum parts, basslines, and beats.

The originality (and thus copyrightability) of the type of contribution is discussed supra. The minimum quantity of contribution also required consideration. A recent case offers the guideline (in dicta) that this is certainly more than three or four notes, but perhaps as few as seven. See Skidmore v. Zeppelin, 952 F.3d 1051, 1071 (9th Cir.) (en banc). In practice, sources did not reach this degree of specificity. See also U.S. Copyright Off., supra note 158, § 802.5(B) (“There is no predetermined number of notes, measures, or words that automatically constitutes de minimis authorship or automatically qualifies a work for copyright registration.”).

The copyrightable expression in a musical composition is typically found in its melody, harmony, rhythm or some combination of the three. See Goldstein, supra note 9, § 2.8, at 2:102.1–102.3.103; Nimmer & Nimmer, supra note 30, § 2.05[D]; see also 2 William F. Patry, Patry On Copyright, § 3:93 (“Originality in a musical composition consists not just of melody or harmony, but also in the combination of these two in addition to any other elements, such as rhythm or orchestration.”). While melody was long privileged as the sole source of copyrightable expression in musical compositions, courts have sometimes—and perhaps increasingly—been willing to find other aspects of the work copyrightable. See Joseph P. Fishman, Music as a Matter of Law, 131 Harv. L. Rev. 1861, 1870–73 (2018). Joint authorship cases concerning songwriting are typically decided on intent and rarely reach the question of copyrightability. Most discussion of the copyrightability of song elements has therefore arisen out of an infringement context. Infringement cases in music, involving highly fact-specific determinations, have understandably not produced a list of copyrightable and uncopyrightable elements that can be applied mechanically: the most that can be said is that certain elements may (or may not) be copyrightable. Furthermore, the infringement analysis does not itself determine copyrightability. In some instances, infringement has been found on the basis of elements that may not themselves be independently copyrightable. See Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (“[T]o disregard chord progression, key, tempo, rhythm, and genre is to ignore the fact that a substantial similarity can be found in a combination of elements, even if those elements are individually unprotected.”); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485–86 (9th Cir. 2000).

Courts have not recognized PRO registrations as evidence of authorship, but USCO registrations constitute “prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration.” U.S. Copyright Off., supra note 158, § 202. Therefore, USCO registrations were searched and compiled for ten songs by all bands with uneven contributions that include all members as co-authors. The credited writers in the PRO registrations match listed co-authors in USCO registrations 99% of the time. Also, 37% of the songs registered with PROs were not registered in the USCO database. See Zvi S. Rosen & Richard Schwinn, An Empirical Study of 225 Years of Copyright Registrations, 94 Tul. L. Rev. 1003, 1030 (2020) (noting that, over the course of the past thirty years, music registrations with USCO “f[e]ll off a cliff to levels not seen since the 1930s”).

This relied on assembling, per song, the number of band members and the number of co-authors credited.

The number of members with writing credit was compared to the number of members the band had in the year each song was released. If the number of member co-authors was less, the song was coded as false (per song; variable used only in computing per band level all members are co-authors), otherwise as true (per song). The total number of true songs was counted and compared to the total number of the band’s songs. When more than 50% of a band’s songs were credited to all members of the band in the year the song was released, the band was coded as true for the variable all members are co-authors. To determine the number of members in each band at the time their songs were released, discographies including year of release information were obtained from AllMusic, https://www.allmusic.com/ [https://perma.cc/4GVX-XYGQ]. Discography data was web-scraped. When AllMusic did not provide details on the year in which a song was released, a web search was conducted. After this, several sources were reviewed to find the number of band members in each year songs were released: band members were listed on AllMusic, Wikipedia, band websites, in liner notes, and often named in interviews. Touring and session musicians were not counted as band members. The names of the writers credited with the songs of bands in the Gold Record database were obtained from the online repertories of ASCAP and BMI.

The size of a band’s membership could influence how willing members are to include all members as co-authors. Particularly for uneven contributions to songwriting bands, as group size grows, so does the possible economic penalty for including all members as co-authors. To investigate whether the number of members in a band predicts the inclusion of lesser contributors as co-authors, representative band size was generated for each band (Two (21%); Three (22%); Four (35%); Five (16%); Six+ (6.1%)). For bands with variable numbers of members, the lowest number of members during the band’s active years was used. More than 90% of music groups had five or fewer members. The most common band size was four members (349/1,003, or 35%).

Genre data was obtained from AllMusic’s "genres” listing for each band. Music Genres, AllMusic, https://www.allmusic.com/genres [https://perma.cc/KN52-AVL9]. AllMusic’s proliferation of subgenres (over 120) is highly useful for capturing subtle commonalities across the site’s more than 30 million tracks. However, this subgenre classification scheme is too granular for the size of this study’s dataset. At the same time, AllMusic’s twenty-one higher level genre classifications potentially collapse meaningful differences within the study sample of Gold Record bands (for instance, by combining Pop and Rock into a single genre). For this reason, I decided to group together the bands’ AllMusic subgenres into the following nine genre categories: Rock (48%); Latin (2.9%); Country (4.4%); Metal (6.5%); Punk (2.1%); Pop (15%); Reggae (0.8%); Hip Hop, R&B, Gospel, Jazz (19%); and Electronic (1.7%). AllMusic frequently associates artists with multiple subgenres. In the event of a band’s multiple subgenre classifications corresponding to more than one of the study genre groups, the band was assigned to the study genre group with fewer observations.

Geographic regions are sometimes thought to vary in terms of attitudes that could relate to decisions about including lesser contributors as co-authors (for example, Southern communalism or coastal capitalism). For this reason, the geographic regions of bands from the United States and its territories were coded according to the location where the band was started. Location data was obtained from Wikipedia, which was then classified into regions using the boundaries of the U.S. Divisions and Regions of the U.S. Census Bureau, widely used regional divisions for statistics and data collection: Northeast (17%); Midwest (8.4%); West (26%); and South (20%). U.S. Census Bureau, Geography Div., Census Regions and Divisions of the United States, https://www2.census.gov/
geo/pdfs/maps-data/maps/reference/us_regdiv.pdf [https://perma.cc/FD3M-3LUY]. As the U.S. Census Bureau does not include Puerto Rico in any census region, bands from Puerto Rico were classified as South. All bands originating outside the United States and its territories were classified as Non-USA (28%).

In keeping with the common practice of organizing discussions of the history of popular music around particular decades, bands were assigned to a period spanning ten years according to the year in which their first album was released. The years in which albums were released was obtained from each band’s profile on AllMusic. The decade classifications used are 1960s and earlier (8.9%); 1970s (13%); 1980s (23%); 1990s (29%); 2000s (18%); and 2010s and later (8.6%). In general, no region or decade dominated group genesis, though there were comparatively fewer music groups prior to 1980.

This was analyzed as a true/false variable. It relied on assembling a year-specific version for all members are co-authors variable for the first and last year of a band’s existence. Bands might initially decide to include all members as co-authors, or not, but change their co-author inclusion practices in subsequent years. To track the potential for this occurrence, an all members are co-authors by year (true/false) variable was produced for each year the band has released songs. Bands were then categorized as initial year co-author inclusion (true/false), based on the value of all members are co-authors by year, in the year of their first release. The initial year co-author inclusion code for each band was compared against the all members are co-authors by year codes for each release year. If there were any occurrences differing from the bands’ initial year co-author inclusion code, the band was code as true for co-author inclusion changed, and otherwise as false. Further, 75% of bands were false for co-author inclusion changed.

First, for all Gold Record bands with any level of band member songwriting contributions, I used logistic regression analysis to investigate whether all members are co-authors was associated with songwriting contributions, genre, region, decade, or representative band size. The reference group for decade was “1980s.” Songwriting contributions were the most important predictors of all members are co-authors. Compared to bands in which some members do not contribute to songwriting, bands with even (or 2.9, p<0.001) and uneven (or 1.9, p<0.001) were significantly more likely to include all members as song co-authors. Significant associations were also found with representative band size, decade, and genre, but not region (p<0.001). Representative band size: Compared to four-member groups, two-member groups were significantly more likely to include all members as co-authors (p<0.001); five-member groups (p<0.05) and groups with six or more members (p<0.005) were significantly less likely to do so. For "decade,” compared to the 1980s, groups formed in the 1960s or earlier were significantly less likely (p<0.05) to include all members as co-authors, whereas this was less common with bands formed in the 1990s (p<0.05), 2000s (p<0.005), and 2010s and later (p<0.01). Genre: Compared to Pop groups, Latin (p<0.05) and Hip Hop, R&B, Gospel, and Jazz (p<0.05) groups were significantly less likely to include all members as co-authors. For the subgroup of uneven songwriting contributions bands, to a lesser extent, a band size of two members was also associated with all members included as co-authors (p<0.05).

Z-test of one proportion, p<0.05.

Such analysis would be underpowered.

Z-test of one proportion, p<0.001, 95% CI 56%–71%.

I used logistic regression to investigate associations with representative band size, genre, and region. The only significant association was with larger band sizes, which were negatively associated with all members are co-authors (five members p<0.05, or -1.1; six or more members p=0.054, or -1.8). Overall, bands with five or more members were significantly more likely to be coded as some members do not contribute (145/219, or 66%) than bands with four or fewer members (410/784, or 52%) (z-test of two proportions p<0.001).

Z-test of one proportion, p < 0.001.

Test of two proportions, p < 0.001. To note, 20% of bands which began by including all members as co-authors at some point switched to not including all members as co-authors; 36% of bands which began by not including all members as co-authors at some point switched to including all members as co-authors.

Despite the success of machine learning techniques for classifying image data, machine learning techniques have been less successful with music genre classification and human coding continues to generate more satisfactory results. Email from Joel Shor, Senior Software Engineer, Google Research, to Sarah Polcz (May 29, 2019) (on file with author).

An equal split variable was created for which bands were coded as true/false. Data was obtained through the online searches only for a subset of uneven bands, and it is not clear whether the bands whose splits are not public is data that is missing at random.

This terminology is used by ASCAP to refer to the aggregate percentage of a song’s royalties administered by ASCAP on behalf of its members and/or members of affiliated non-U.S. performance rights organizations. See ASCAP Reveals Its Percentage Share of Over 10M Songs Online, Music Bus. Worldwide (Nov. 12, 2015), https://www.musicbusinessworldwide.com/ascap-reveals-its-percentage-share-of-over-10m-songs-online/ [https://perma.cc/7PNF-SU5Z].

See U.S. Dept. Just., Statement of the Department of Justice on the Closing of the Antitrust Division’s Review of the ASCAP and BMI Consent Decrees 2 (Aug. 4, 2016), https://www.justice.gov/atr/file/882101/download [https://perma.cc/7XW6-CE7D]. (The review recommended, in part, that ASCAP and BMI should be required to license songs on a “100%” basis, rather than only the percentage under their control. Strongly opposed by the PROs, this proposal was ultimately defeated.) See Songwriters Win in Second Circuit Ruling on 100% Licensing Decision, ASCAP (Dec. 19, 2017), https://www.ascap.com/news-events/articles/2017/12/songwriters-win-in-second-circuit-ruling [https://perma.cc/7RT6-QQCF].

Broad. Music, Inc. (BMI), https://bmi.com [https://perma.cc/HB3A-AF8T] and Glob. Music Rts. (GMR), https://globalmusicrights.com [https://perma.cc/HGR6-HEVQ], list each PRO’s percentage of control over a work’s total public performance right, without specifying the extent to which this percentage is derived from the writer’s and/or publisher’s share. SESAC, https://www.sesac.com/ [https://perma.cc/FQ4W-F2DZ], does not include any control data in its publicly available repertory. SESAC Repertory, Sesac (2022), https://www.sesac.com/documents/SESAC_REPERTORY.pdf [https://perma.cc/B3DP-S8TN].

Songs were coded as true/false for the equal split variable using this information.

The data obtained included song titles, credited writers, writers’ PRO memberships, and the proportion of each song’s royalties controlled by ASCAP. The coder then determined whether or not each credited writer was a member of the band and referenced the number of members in each band in the year each song was released. For each song the total number of band members credited as writers was tallied.

The range of comparison in non-integer cases was expanded to allow for share allocations that round up or down by one.

Traditionally, income from music publishing is evenly divided between the songwriter or songwriters (“writer’s share”) and the publisher or publishers (“publisher’s share”). PROs forward 50% of the publishing income from a song, less fees, to the writers and the other 50% to the publishers, representing 100% of the income earned. The stated purpose of conveying the writer’s share directly to the writers, rather than having it distributed to the writers by the publishers, is to prevent unscrupulous behavior on the part of the publishers. See Passman, supra note 114, at 242. ASCAP lists 100% of the writer’s share of public performance royalty as 50%, as it is half (along with the 50% publisher’s share) of the whole public performance right.

If a song has three writers, one of whom is a member of ASCAP, which controls 33.3% of the writer’s share of royalties, then the song was classified as equally split, since under an equal split arrangement between the three writers, each writer would be entitled to a 33.3% share.

Z-test of one proportion (> 50%).

6,985,181 songs. ASCAP allows anyone to request its repertory. See SESAC Repertory, supra note 184.

2,612,687 songs. See id.

The repertory as provided by ASCAP includes the total share of songwriting royalties controlled by ASCAP (writers’ shares and publishers’ shares), and the names of writers of each song. Details on the writer’s share controlled by ASCAP are, however, available in ASCAP’s online repertory. The list of co-authored songs was filtered to include only those songs for which ASCAP controlled less than 100% and more than 0% of the total songwriting royalties. The total share controlled by ASCAP was a useful coarse filter for reducing the list of songs for which ASCAP-controlled writer’s share data was then compiled by web scraping.

To note, 8% of the songs on the reduced list of co-authored songs did not have entries in the online repertory and consequently no data was available for those titles.

When songs were credited to three or four writers, additional steps were taken to reduce the potential for uncertainty in these split estimates. To adjust for the possibility of three-writer splits where, for example, ASCAP controls 33% but two writers are members of ASCAP and the split is therefore unequal (Writers 1 and 2 share 33%, Writer 3 gets 66%), further information was sought. For both three-writer, and four-writer songs, a randomly generated sample of one hundred songs was checked against ASCAP song registrations to obtain a measure of the frequency of unequal splits of the structure described. The frequency of such “hidden inequality” was 5% for three-writer songs and 11% for four-writer songs; taking the average suggests an adjustment of 8%. While it is possible that those splits could still be unequal (for example, Writer 1 gets 33% and instead of splitting the remaining 66% as 33% to each of Writer 2 and Writer 3, the split is Writer 2 gets 40% and Writer 3 gets 26%), this seems unlikely enough as to be insignificant, particularly as the first order adjustments are small. The most frequently observed number of co-authors in both the Gold Record songs list (38%) and the ASCAP co-authored songs list (62%) is two writers. A similarly small proportion of songs are credited to six or more writers in both the ASCAP (1%) and Gold Record song lists (4%). In both the ASCAP co-authored songs data and the Gold Record bands data, recurrent collaborations are the norm: the nature of a band is that collaborative writer-name combinations occur for most of the band’s songs. In the ASCAP co-authored songs data, the median number of repeated collaborations was five, though most collaborative writer-name combinations occur only once.

The ASCAP repertory does not include information on the covariates of the Gold Record database (songwriting contributions, genre, region, decade, or representative band size). The Gold Record bands’ songs list contains 1% of the songs in the ASCAP co-authored songs data. This reflects the small number of music groups earning Gold Record certifications.

p<0.001.

A “gift credit” is a writing credit naming someone who did not contribute copyrightable expression to the work. Gift credits are common. Telephone interview with Scott Jungmichel, Senior Vice President of Royalty Distrib. & Royalty Rsch. Servs., SESAC (May 1, 2017).

See supra Section IV.B.1.

An estimated 15–25% of songs use samples of other songs. Tracklib Presents State of Sampling 2019, Tracklib, https://www.tracklib.com/blog/tracklib-presents-state-of-sampling-2019/ [https://
perma.cc/A4V8-WALF]. Sampling requires licensing both the sound recording and the song itself. This normally involves an advance payment plus sharing a portion of the copyright income of the song in which the sample is used. On the publishing side, the typical range is 10–30% of royalties, Passman, supra note 114, at 250–51, indicating a likelihood of an unequal split.

p < 0.001.

p < 0.001.

p < 0.001.

p < 0.001. Higher numbers of co-writers also increase the chances of unequal splitting attributable to sampling. Because songs with more credited writers are not necessarily more complex or longer than songs with fewer co-writers, higher numbers of writers also reduce the likelihood that all credited writers have made copyrightable contributions, increasing the probability that the writing credits include gift credits, which may also contribute to rates of unequal splitting for songs with many co-authors.

                                           Aalmuhammed v. Lee, 202 F.3d 1227, 1233 (9th Cir. 2000).

See id. at 1233 (“[Artistic control] would generally limit authorship to someone at the top of the screen credits . . . .”); Goldstein, supra note 9, § 4.2.1.2.

To the extent that “control” is understood as control over one’s own contributions rather than the entire work, it is compatible with the findings. However, that has been a minority interpretation of the control doctrine. See supra note 70 and accompanying text.

Aalmuhammed, 202 F.3d at 1232.

See Mechanical License Royalty Rates, U.S. Copyright Off., https://www.copyright.gov/
licensing/m200a.pdf [https://perma.cc/3XVH-3GFG].

See, e.g., Ryan Reed, Why Genesis Started Writing Shorter Songs: Exclusive Interview, UCR (Mar. 26, 2018), https://ultimateclassicrock.com/genesis-tony-banks-songwriting/ [https://perma.cc/
WR2C-R73Z] (interview with Tony Banks of Genesis); Richard Buskin, Classic Tracks: 10cc ‘I’m Not In Love,’ Sound On Sound (June 2005), https://www.soundonsound.com/techniques/classic-tracks-10cc-not-love [https://perma.cc/6TJL-FJUJ] (interview with Eric Stewart of 10cc). Both give this reason for equal royalty splits regardless of actual authorship.

See Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good 21 (2014) (“[C]ourts have repeatedly protected stock scenarios and motifs . . . from suffering capture within copyright’s exclusive rights. The balcony scene, one-point perspective, blues chord progressions, and other creative building blocks thus remain free for all authors to use and reuse.” (footnote omitted)); Timothy J. McFarlin, Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship, 17 Vand. J. Ent. & Tech. L. 575, 643 (2015) (“Johnson may have been playing what was, by itself, a preexisting or otherwise uncopyrightable blues chord progression or riff.”); Michael J. Madison, Intellectual Property and Americana, or Why IP Gets the Blues, 18 Fordham Intell. Prop. Media & Ent. L.J. 677, 700–01 (2008) (“[T]he law sees in the blues not the concrete and protectable, but the general and the unprotectable. Individual notes and chords are ‘facts’; chord progressions are ‘ideas’ necessary to expression within the genre . . . . Repetition of rhythms, riffs, and even melodies does not constitute ‘originality’ or ‘authorship’ in a copyright sense.”).

Shourin Sen, The Denial of a General Performance Right in Sound Recordings: A Policy that Facilitates Our Democratic Civil Society?, 21 Harv. J. L. & Tech. 233, 241–42 (2007).

See, e.g., LaFrance, supra note 76.

I take this to be a conservative estimate. ASCAP and BMI have 90% market share; the co-authored songs are 48% of co-authored songs in ASCAP’s repertory, most commonly listed also in BMI’s repertoire.

A third response could be industry-specific joint authorship rules. See, e.g., Kwall, supra note 87, at 62–63; McFarlin, supra note 211, at 660–61; Gregory S. Donat, Fixing Fixation: A Copyright with Teeth for Improvisational Performers, 97 Colum. L. Rev. 1363, 1403–04 (1997); Susan Keller, Collaboration in Theater: Problems and Copyright Solutions, 33 UCLA L. Rev. 891, 935 (1986). The industry-specific nature of patent law is well-attested. See Dan L. Burk & Mark A. Lemley, Is Patent Law Technology-Specific?, 17 Berkeley Tech. L.J. 1155, 1158–85 (2002). And industry-specific carve-outs are well-known in copyright law; for example, the blanket inclusion of all creative motion picture contributions as potential works made for hire. 17 U.S.C. § 101; see also Peter DiCola, Music Copyright, in 2 Research Handbook on the Economics of Intellectual Property: Analytical Methods 565–66 (Peter Menell & David Schwartz eds., 2019) (discussing ways in which copyright law is tailored to the music industry, notably in infringement); Joseph P. Liu, Regulatory Copyright, 83 N.C. L. Rev. 87 (2004). Yet this rule was the result of intense industry lobbying. Cf. Burk & Lemley, supra note 6, at 1637 (warning of “counterproductive special interest lobbying” in tailored patent legislation). Furthermore, creative industry standards, when they can be identified, may run contrary to black letter copyright law, with little room for modification except through legislation. See, e.g., Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 556–57 (9th Cir. 1990) (discussing the apparent custom of unwritten exclusive transfers in the film industry). Or, consider an industry default based on the outcome of 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 265–65 (2d Cir. 2015): all film work would be work made for hire, even in the absence of a contract. An industry-based approach would need to take into account these and other challenges to further the utilitarian ends of copyright. See generally Polcz, supra note 7.

See, e.g., Samantha Drake, Co-Founders Could Have Avoided Legal Drama on Eve of Self-Driving Car Deal, Forbes (July 14, 2016), https://www.forbes.com/sites/samanthadrake1/2016/
07/14/co-founders-could-have-avoided-legal-drama-on-eve-of-self-driving-car-deal [https://perma.cc/
82WU-NYW9] (“[T]he apparent failure to document the scope of an alleged co-founder’s contribution at the San Francisco-based Cruise came back to haunt it on the eve of the startup’s acquisition.”).

See Richard Craswell, Contract Law: General Theories, in 3 Encyclopedia of Law and Economics: The Regulation of Contracts 1, 5 (Boudewijn Bouckaert & Gerrit De Geest eds., 2000); Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 Mich. L. Rev. 8, 52 (1993).

See Ayres & Gertner, supra note 133, at 117–18; Christopher R. Drahozal & Peter B. Rutledge, Contract and Procedure, 94 Marq. L. Rev. 1103, 1160 (2011) (stating that a complex rule may be a more efficient rule if efficiency gains outweigh increased information costs); Robert E. Scott, A Relational Theory of Default Rules for Commercial Contracts, 19 J. Legal Stud. 597, 598 (1990) (noting that rule complexity increases costs).

See George S. Geis, An Experiment in the Optimal Precision of Contract Default Rules, 80 Tul. L. Rev. 1109, 1129 (2006) (arguing that optimal tailoring must be based on empirical data). See generally Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. 1417 (2014). Analysis of empirical data has increasingly been used to challenge conventional wisdom in a variety of copyright contexts. See, e.g., Christopher Buccafusco & Paul J. Heald, Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension, 28 Berkeley Tech. L.J. 1, 17–28 (2013) (using audiobook data to question prevailing rationales for copyright term extension); Kristelia García, James Hicks & Justin McCrary, Copyright and Economic Viability: Evidence from the Music Industry, 17 J. Empirical Legal Stud. 696 (2020) (finding that sound recordings largely exhaust their economic value long before the termination of the copyright term); Glynn S. Lunney, Jr., Copyright and the 1%, 23 Stan. Tech. L. Rev. 1 (2020) (supporting copyright reform proposals with video game usage data); see also DiCola, supra note 215, at 567 (discussing empirical data-gathering difficulties particular to the music industry).

The goal is to find the tipping point at which the rule is tailored to the extent that such tailoring maximizes efficiency: where further tailoring would increase net transaction costs. Porat & Strahilevitz, supra note 219, at 1423.

See Robert J. MacCoun & Sarah Polcz, Distributive Justice Norms, Social Value Orientations, and Social Relations Models: An Integrative Account, in Soc. Psych. & Just. 93, 93 (E. Allan Lind ed., 2020).

See generally Alan Page Fiske, Structures of Social Life: The Four Elementary Forms of Human Relations 6063 (1991) (discussing four models for the distribution of resources).

Telephone Interview with Julia Kugel-Montoya (Sept. 17, 2017).