No, this is not some metaphysical question… More a question about music publishing.
Given the case of Gene Roddenberry’s possibly-sneaky Star Trek theme song lyrics, do composers of TV/movie theme songs and other instrumental music create lyrics for their songs, purely as a matter of defense? Granted, Gene’s lyrics were apparently added with the composer’s consent, but since lyricist and composer split future profits, have any other composers added lyrics to their lyric-less songs just to prevent someone else from creating lyrics and usurping half their cash?
Since I’m one of those sticklers for what a “song” means – something to be sung – I’d vote Yes. But as your question included the word “instrumental” I’d use the term “tune” or “piece” for the more generic “bit of musical performance” and would then vote No.
There must be thousands of pieces that have no words other than a title and some of those titles are non-descriptive.
Adding lyrics to a song, whether or not it already has lyrics, is creating a derivative work. If the original piece is still protected by copyright, creating a derivative work without the permission of the copyright owner is copyright infringement and legally actionable.
The fact that Roddenberry allegedly had a written agreement with Courage allowing him to add the lyrics made all the difference in the scenario you described. Generally speaking, it is not necessary to write lyrics for your musical composition to prevent usurpers from taking half your royalties.
The question is complex. You can, for instance, write parody lyrics to any song and publish them (Irving Berlin et. al. v EC Publications). You can also write parody lyrics to a song and record and sing them (Acuff Rose v Campbell).
If you’re adding non parody lyrics, it’s not as clear. You should be able to write lyrics to an instrumental – Annie Ross added lyrics to a Wardell Gray saxophone solo and came up with “Twisted.” I don’t know if she got Gray’s permission, but Lambert, Hendrix, and Ross made a career by adding lyrics to other compositions.
In theory, you can add lyrics without permission as long as you pay the songwriter their ASCAP fees. The argument is that it’s no different than playing the song as written. And, going the other way, you can arrange a song with lyrics to be sung as an instrumental; the original composers would get their payment, but the arranger would also get a ctu.
I am not sure you understand what “ASCAP fees” are. ASCAP collects performance royalties. ASCAP would get involved in collecting fees from a radio station for playing a song, for example. ASCAP would collect no fees if you wanted to record a song or include a song in your video, for example. It would also not get involved in selling sheet music.
ASCAP, regardless of what fees you pay them, cannot grant you a license to create a derivative work.
It seems to me that this idea would work only in the specific case of a tv or movie theme. Roddenberry’s goal was to get half the royalties that would accrue each time a Star Trek episode is broadcast. I don’t see how it would work in other situations.
For example, suppose I would write a different set of lyrics to that music, and suppose I did it in a totally legal way, and suppose some radio stations played my version. In such a case, I think that the royalties would go to Courage and me, with Roddenberry’s estate getting nothing. But Courage and Roddenberry would continue to get the royalties from reruns of Star Trek on tv.
If the above is correct, then although Roddenberry’s actions did allow him to secure royalties from reruns of the show, it does NOT “prevent someone else from creating lyrics and usurping half their cash”.
Probably not. Usually a song (melody + lyrics) are a single work, regardless of the number of authors. Usually you couldn’t, for example, come up with new words to Stairway to Heaven and then pay Page (melody) royalties and not pay Plant (original lyrics). That said, I don’t know the details of what Roddenberry and Courage arranged, if they really are two works or one.
