Time and again, we hear producers complaining about being cheated out of publishing splits or not getting due credit. Earlier this year, it was reported that Wizkid’s former producer, Samklef, who produced several songs in Wizkid’s first album, was demanding royalties for his work. Only a few days ago, Mayolee, the music producer of the massively successful hit song ‘Way Maker’ (which made history in 2020 as the first African song to top Billboard’s Christian Songwriter chart), took to Instagram to complain that he is not receiving royalties for his work in the said song. Comments surrounding these outcries make it necessary to promote an understanding of the rights of producers. Accordingly, this article considers questions such as: who are music producers? Are they just hired hands, or should they get credit/royalties for songs they have produced? It also considers how music producers can protect themselves from situations arising.
What constitutes a song and who is a songwriter?
To do a proper analysis of the issues, it is necessary to begin with the end in mind: the song. What is a song? A song is simply the combination of melody and words, both of which are protected by copyright. The melody is protected as a musical work and the lyrics as a literary work. Each of these are separate and distinct in the eyes of the law.
The term ‘songwriter’ refers to both the author of a song (the person who crafts the lyrics in the song; sometimes called the lyricist) and a composer (the person who creates the melody). This definition excludes anyone else involved, such as an arranger, studio engineer, and studio maintenance assistants. In the eye of the law, a composer need not even know how to play an instrument; it is sufficient that they hum the melody and get someone to play it out for them. When the task of crafting the lyrics and composing the music is not done by a single person, both parties usually split the songwriting credit.
For example, Feyi is a poet who has no clue on how to play an instrument or compose a melody. But she has an idea for a song. She can present her words to Seun, a flutist who knows how to create melodies, and together, they can create an interesting synergy – song. In this scenario, both Feyi and Seun would be considered the songwriters of the resulting song.
If either or both of the lyricist and the composer also perform/sing the song, they would, in addition to their copyright as songwriters, enjoy performance rights. Sometimes, neither the lyricist nor the composer of the music performs the song. In this case, an artist is brought in to perform on the track/album. Using our example, if neither Feyi nor Seun are good singers, they may choose to pass on the song to a singer – Ara. This is where related rights or neighbouring rights come in. These rights are distinct from the copyright in a work.
Accordingly, three distinctly separate careers can be seen from this relationship: lyricist, composer, and recording artist (each having independent, recognized legal rights). All three can also be one person as well. Ed Sheeran is reputed to write his own music and lyrics, as well as perform them.
The related rights enjoyed by performers, such as the singer in our scenario, are granted by Copyright laws. They require the consent of the performer to first be obtained prior to recording, broadcasting, or communicating a live performance to the public, as well as prior to reproducing recordings of their performances.
The process of recording Ara’s performance of the song would most likely feature many different session musicians. They would contribute to the beats, percussion, bass, guitar, vocals, etc. Whether featured or non-featured, all who contribute compositions and perform on the recording own copyright and related rights respectively.
Producer vs Beatmaker
As the term ‘music producer’ is used in different ways, some clarification might be necessary. Technically speaking, phonogram producers are the entities or individuals who finance the creation of the sound recording and are therefore the owners of the sound recordings. In territories like the US, the UK, and Nigeria the phonogram producer is usually the record company or record label.
The term may also refer to a person who supervises the making of a musical recording. They work directly with the artist and the engineers to achieve the goals in the creation of the musical content. They are also responsible for keeping budgets, scheduling recordings, and hiring studios and engineers. While doing this may require some knowledge of music e.g., music theory, mixing, and recording, these are not considered protected works per se. Such a person is not required to know how to play any instruments. The law neither grants copyright nor related rights to such producers.
Another way the term is used is to describe ‘beatmakers’. This is its most popular usage in Nigeria. In our example, a beatmaker would be listed as a songwriter on the records as he is involved in writing melodies. This includes those who use computer programs to make beats, by the way. When a producer creates vocal or instrumental sounds in a musical work, he is acting outside his capacity as a traditional producer and is actually a co-writer. In the context of copyright law, he is no different from a musical composer.
An average producer in Nigeria employs a wide-ranging set of skills that includes programming beats and samples; playing instruments and singing; writing and revising melodies and even lyrics; arranging songs; eliciting inspired performances from vocalists and musicians; and creating professional-level demos or master recordings. Consequently, their contributions fall within the categories of works recognized under copyright law, entitling them to a publishing split.
To be clear, what a beatmaker is entitled to be not only a part of the publishing/songwriting royalties but also the ‘Sound Recording’/ ‘Master’ royalties resulting from streams and sales of the recording. It is important to note that the Master copyright is separate from the Songwriting copyright. Therefore, even if someone remakes the beat, the beatmaker is still entitled to publishing royalties in their capacity as a composer, even though they would not be able to claim the Master copyright as the Master recording was not used.
In acknowledgment of the enormous creativity that goes into producing, or maybe from the efforts of producers in protecting their interest and not being sidelined, the recent practice has been to feature the producer on the song, thus clearing any doubt as to their entitlement to copyright in the song. However, under the law, such featuring is not even necessary to entitle a producer who contributes melody, beats, or a part of the lyrics, to a share of royalties in the song.
Rights in a song
Copyright safeguards that if anyone wants to do any of the following things with a song, they would first need to get permission from the owners:
- copying it (the reproduction right)
- distributing copies of it, whether free of charge or for sale (the distribution right)
- renting or lending copies of the work to the public (the rental right)
- performing, showing or playing the work in public (the public performance right)
- communicating the work to the public, including putting it on the internet (the communication right)
- making an adaptation of the work (the adaptation right).
Right-holders of a Song
Each of the writers of a song (music composer and lyricist) has the foregoing rights, regardless of how much or little they contributed to it. In our example, since Feyi and Seun are co-authors of the song, copyright in both elements of the song (the melody and the lyrics) will last for 70 years after the death of the last surviving author.
Let us quickly go over the list of collaborators mentioned in a musical work:
- Lyricist (person who writes the words in a song)
- Composer (person who writes/composes the melody)
- Performers (they bring the song to life by singing/performing the musical compositions and lyrics)
- Producer (person who helps with recording the performance of the compositions. If this person contributes to the lyrics, melody or beats, they are entitled to the songwriting or publishing rights)
Music contracts are essential because they not only protect the interests of the parties but also ensure mutual understanding. If the intention is not to have to split copyright and royalties with any other person on the song, including the producer, it is important to execute a work-for-hire agreement. A work-for-hire agreement ensures that a person who was contracted to perform a task in relation to a song and has been paid for that task does not retain any rights to the product created. Without a work-for-hire agreement, all the creators retain the ultimate ownership of the product even if the task performed was already paid for.
Consequently, it is a wise move to have a work-for-hire agreement ready before starting any project with an independent contractor e.g., a beatmaker/producer, hired instrumentalists etc.
Nowadays, music enthusiasts across the globe often describe the music/beat as the “meat of the song”. As one person put it: “If the music is bad, it does not matter if the words are great or if a phenomenal singer is performing it, it won’t be much better”. Should Samklef, the producer/beatmaker of Wizkid’s ‘Superstar’ Album, be celebrated as much as the performer? Should Mayo receive royalties for his contribution to Waymaker? Or has he assigned his rights under a work-for-hire agreement?
 See generally Section 6 (a) (i) – (ix) of the Nigerian Copyright Act
 See Section 11 of the Nigerian Copyright Act
Original piece published on The IP Press: https://www.theippress.com/2022/11/04/way-maker-miracle-worker-and-beatmakers-are-music-producers-entitled-to-royalties/