Under U.S. law, when you transfer all of the rights in your song to someone else as part of a publishing or songwriting deal, the purchaser has the right to alter the song’s music and lyrics. After all, the song now belongs to the purchaser. Many other countries recognize the legal concept of “moral rights,” whereby a composer can stop harmful alterations of a song, even though the composer may no longer own the song. The U.S. has not yet embraced this doctrine., at least not for music. So, if you want to prevent your publisher from changing the title of your latest ballad from “I’ll Be Your Everything” to “I’ll Be Your Morey Amsterdam (If You’ll Be My Rose Marie)”, you need to have language to that effect in your contract.
Most songwriters I know are sensitive about the artistic integrity of their compositions. The creative process can be a painful catharsis, exploring and expressing deepest personal experiences and feelings. Similarly, most lawyers I know are sensitive about money. They don’t, (or shouldn’t) want their writer-client’s share of song revenue suddenly diluted by a “co-writer” who has modified a line here and there. Publishers are understandably sensitive about having maximum flexibility in their efforts to find users for a song. Minor cosmetic changes, translations into different languages, or subtle changes to conform a song to the mood or style of a particular recording artist can make the difference between a song lying dormant or being covered and generating significant income.
The trick is to negotiate for and agree on language which synthesizes these conflicting concerns. The first position is to insist that no changes be made without your consent. Assuming the publisher will not agree to such a broad restriction, think about the kinds of changes that would be most offensive to you and carve those out as specific exceptions to the general power of the publisher to modify. Then treat those offending modifications positively. For example, “Publisher must obtain Writer’s written consent before changing _________” (i.e., the title of a composition.)
You are essentially setting up a process of consultation between the publisher and the writer. The presumption is that if the publisher and writer are in regular consultation, they are more likely to agree on the need for a specific change. If the writer sees that financial reward hinges on a minor change, the writer will more likely agree to the change, avoiding the bad feelings that are almost guaranteed when a writer finds out after the fact. As for the types of changes not specifically carved out, provide that the publisher will remain free to make only “minor” alterations. The word “minor” is subject to interpretation, but that ambiguity may cause a wise publisher to err on the side of safety, i.e. prior consultation with the writer.
A common way of dealing with the issue of creative control is to agree that the writer and the publisher will “share” creative control. Watch out. Buried in some other part of the contract may be language to the effect that, if the writer’s consent is required, the writer will be presumed to have consented unless the writer provides a specific written objection within a few days of having been advised of the proposed change. Other language that ultimately robs the writer of “shared” control is the common provision that if the writer and publisher cannot agree on a change, the publisher’s decision will control.
While publishers will often agree not to change the music, English lyrics, or English title without your prior approval, (except for minor changes), few will agree to restrict their ability to modify your songs in foreign languages. Ideally, the publisher should send you any foreign translations so you can have them translated back into English independently to verify the artistic accuracy of the foreign translation.
From a business perspective, you should seek to limit the amount to be paid to a foreign translator or adapter to the amount required to be paid by the performing or mechanical rights society of that particular country. Most foreign societies require that their local lyricist receive about one-sixth of the combined writer and publisher shares for mechanical royalties and one-sixth of the writer’s share for performance royalties. You want all this to come out of the publisher’s share. The publisher wants to charge it all to your share. In a compromise, it will all come off the top, with you and the publisher therefore sharing in the expense according to your percentage ownership of the song. (Make sure the foreign translation is registered separately from the English version and that the translator only gets paid on the foreign language version.)
Closely related to creative control is control over the way a song is used. Carl Perkins was understandably concerned when his rockabilly classic “Honey Don’t” wound up in a child rape scene in the movie “Prince of Tides.” Again, recognizing that the publisher needs maximum flexibility, specify the particular kinds of uses that are most likely to offend you and ask that you be given prior written approval of any such use. Common limitations are X rated films, film or TV scenes involving sex, drugs, or violence, commercials for alcohol, tobacco, and guns and, of course, political commercials.