It's about time to give the music producer her/his copyright due

Kat friend Dr. Aleksandra Sewerynik shares her periodic insights on copyright in the recording industry, this time in connection with the rights of the music producer.

Every songwriting process is a different story. You can get a closer look at it by watching ‘Diary of a song’ by The New York Times on YouTube, and documentaries such as Ed Sheeran’s ‘Songwriter’, or Shawn Mendes In Wonder’. But all these stories have something in common. Nowadays, the song is usually composed using samples and artificial instruments.

This aspect of creating music is the domain of the musician called the music producer. His instrument is a computer with appropriate software. With access to the sound library, he has millions of possibilities to choose from in determining what the song will be like. But are music producers treated equally with other songwriters? Do they receive the royalties? Unfortunately, it's not so obvious.

Let’s have a closer look at the whole songwriting process. Firstly, musicians usually create the lyrics and vocal melody of the song, often with the help of the guitar or piano. These instruments also allow establishing the chord progression. Then, the melodies and chords can be recorded with traditional instruments by a record engineer or fixed using simple keyboard, computer and artificial instruments. These tracks are finally mixed with sound effects, loops, beats or other samples picked or fixed by the music producer. The author of the lyrics and melody often closely cooperates with the music producer to harmonize the final effect.

It is worth noticing that the record engineer, who also stays by the computer or console in the studio during the songwriting process, has another role. He manages the technical aspects of recording vocals and natural instruments' lines (for example, guitar or piano). By preparing the recording space, he allows the artist to be spontaneous. Thanks to his work, the musicians do not miss any idea, melody or chord progression that appears during songwriting session. Still, the work of the record engineer is of a technical nature.

It should be clear from this the extent to which the songwriting process is a collective endeavor these days, and how important the role of the music producer is. But how do the copyright provisions play out?

To be considered a co-author of a musical work, a person must make a creative contribution of an individual nature to the work. However, such contribution does not have to be significant, valuable, substantial, characteristic, or recognizable for the average listener. Moreover, the contribution of a co-author does not have to be independent in the sense of being suitable for separate exploitation. For instance, the instrumentation would be a contribution that has no independent meaning, but yet could be considered a creative contribution to the musical work.

It seems obvious that a music producer's contribution, as described, meets all the above criteria. Unfortunately, at least in the current moment in Poland, e.g., it is not that simple. Often the music producer is treated as a craftsman, who does his job and must be satisfied with a one-time remuneration. As such, music producers are denied the status of co-authors of songs and therefore have no right to receive royalties, which are paid only to the authors of the lyrics, the vocal melody, the chord progression, and the melody of the guitar riff.

It is true that it is difficult to fix, using traditional music notation, the sounds of artificial instruments or sound effects chosen by a music producer. But they can be fixed in the recording which can also be registered with a collective management organization. The form of expression of the intellectual creation is not taken into account in determining copyright protection. That is why nontraditional forms of expression should not be the reason for denying the rights of music producers. Their contribution is crucial for the final version of the song, enabling us listen to it on streaming platforms.

Currently, a case may reach the Polish Supreme Court (a cassation appeal has been filed, but the Supreme Court has not yet decided whether to accept the case), in which the author of the entire arrangement of the song was not recognized as the co-author by the Court of Appeal. The judge ruled that the music producer created only a derivative work because lyrics and vocal melody could constitute a separate work.

In this author's view, if the music producer participates in the composing process, even if the work has several versions in the meantime, he should be considered as a co-author. However, if a music producer engages in a separate, independent process of creation, he/she should be recognized as an author of the derivative work. The clearest manifestation of the unity of the creative process is the cooperation in creating the final version of the work, based on mutual exchange of comments, guidelines, acceptance of stages of the creative process and versions of the work.

It’s worth noting that, in the Polish system, the author of an original work decides whether the author of a derivative work receives any royalties. That is why there is a huge difference between the situation of the co-author of the song, who has the right to royalties proportional to his contribution to the song, and the author of a derivative work, who must ask the author of the original work for the right to receive royalties, regardless of the significance of the creative contribution by the author of the derivative work.

If a song becomes popular, the monetary stakes can be large! Nota bene, in another case, the court of first instance will consider whether a music producer, who was excluded from those entitled to the payment of royalties, should have been treated as the co-author of a popular Polish song.

These rulings may significantly impact the music industry. As it stands, authors are today divided into two classes: the "upper" class, those who create the melodies and lyrics, and the "lower” class, who are responsible for the sound of the song. Let's see whether music producers will be treated equally to other songwriters, and thereby share in any success in the music to which they have contributed.

The picture on the upper right is by Louis Wain and is in the public domain.

The picture on the lower left is by Fred Lyon at fred@fredlyon.come and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.
It's about time to give the music producer her/his copyright due It's about time to give the music producer her/his copyright due Reviewed by Neil Wilkof on Tuesday, January 04, 2022 Rating: 5


  1. This article implies that the 'modern' use of samples and 'artificial instruments' has somehow changed or enhanced the role of the producer. But anyone who has heard the various progressive takes of songs being recorded for the 'Sergeant Pepper' album would recognise that George Martin was a key collaborator with The Beatles. So much so that, following Martin's death in 2016, Paul McCartney said that he, more than anyone else, had earned the title of 'fifth Beatle'. Martin produced all of The Beatles albums except for Let It Be (although the recent documentary 'Get Back' shows him as an influential presence throughout many of the recording sessions for that album also).

    On the other hand, if you watch the remarkable sequence in which McCartney conjures the core of the song Get Back literally from nothing, you would be hard-pressed to argue that the work of the producer is anything more than spreading the icing on the cake!

    Nonetheless, I have long wondered why producers so rarely receive, or even appear to want, songwriting credits. It seems to be a long-established convention in the music business that the producer is akin to another 'instrument' wielded by the artists to bring their visions to fruition, and producers appear mostly to be content with this role. If there is an exception, perhaps it is in the hip-hop scene where artist/producers, such as Dr Dre, are more likely to be granted creative credit. Perhaps, however, a rebellion is afoot in Poland!

  2. Dr. Sewerynik's analysis also speaks to a deeper problem with copyright in general. In any other enterprise which doesn't specifically rest on copyright, the rewards due the indiviudal creators are usually settled by contracts put in place ahead of the project. But once the type of ceativity comes within one of the eligible categories for copyright purposes, we are forced to accept the one-size-fits-all approach, irrespective to the aesthetic value of the work and the potential for earnings from it. This illogical approach means that an architect is in the same position as the song writer and the computer programmer, yet the economic value of each's work is acheived in different ways and for different periods of time: the architect with a one-off fee and no chance for royalties or repeat fees, the song writer through royalties over a very long period (hoefully) including via very many subsets of licences such as grand and sync rights etc, and the computer programmer most likely to be a corporate employee with no chance of roylaties, from a work which may have an economic lifetime of a decade at best.

    If a music producer should be entitled to a song writing credit as of right, why not then the skilled builder or craftsman who realaises the building designed by the architect? The debate is of course just starting when it comes to te role of AI as a creator (or co-creator).

    It's about time we stopped seeing copyright as the solution every problem where the goal is the fair distribution of the earnings from a creative work. After 310 years of muddling through, making a creaky old concept (the penniless struggling author) fit ever more varied and novel sets of creative activities, we need a new and fresh approach. And no, I don't believe 'neighbouring rights' provide any sort of solution.

  3. In modern "in-the-box" music production, a considerable amount of software instrument presets and commercially available loops and samples are used, much like how typefaces are used in graphic design applications.

    A hip-hop producer is more likely to make a 'musical' contribution to a song, as compared to maybe a a hard rock/heavy metal producer. The choices that a producer makes (in terms of sounds, samples, and effects) are indeed more creative than that of an audio engineer (mic placement, volume adjustment etc.), but are they really contributions to the composition? Even if we consider that they are, are they something more than just creative embellishments and are distinctive and memorable enough to satisfy the joint authorship requirement? (the pre-Infopaq UK standard - Hadley v Kemp, Beckingham v Hodgens, Fisher v Brooker etc.) or do they have the 'personal touch' of the producer? (a la Painer).

  4. Kat readers--Gremlins seen to be preventing the author of this post, Dr. Aleksandra Sewerynik, from publishing her responses to the thoughtful Comments above. On her behalf, I am publishing them below.

    Dear Mark, Thank you for your interesting comment. Unfortunately, in Poland we don't have Disney + access yet and for now I can't watch a documentary about the Beatles. It seems to be very interesting! You very accurately captured how other authors treat music producers. I hope that can be changed gradually. I will let you know as soon as the Polish courts decide the cases described in my article.

    Dear Andy, Thank you for your comment. Each field of creative work has its own specifics and that is the reason for the differences in the way it is remunerated that you wrote about. In my opinion, the actions of a music producer cannot be compared to the actions of 'the skilled builder or craftsman who realises the building designed by the architect'. Every creator must have a technical workshop, but his contribution must also have a personal, creative character. This cannot be said of the builder who realizes the architect's design, because his action is purely technical. He does not add his own individual elements to the project. It is different in the case of a music producer, as I discussed it in my article

    Dear Kunal, Thank you for your interesting comment. I agree that each music genre has its own specificity and e.g., in rock music the music producer may play more technical role than in hip-hop or pop music. This does not change the fact that the case of each song must be examined separately, in the perspective of the national law definition of work and the EU directives definition of work as 'author's own intellectual creation'. The US Copyright Act definition is 'original works of authorship fixed in any tangible medium of expression'. In my view, the criterion of distinction and being memorable is not central to these definitions, whereas the criterion of 'personal touch' is grounded in the values underlying continental copyright law. Certainly, there are many times when the contribution of a music producer is characterized by this 'personal touch'.


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