Kurt Cobain's music ethics and copyright complexities

Recently I was in conversation with someone about music royalties. I mentioned I wrote some music I'm excited about, because I believe it will earn me money, and strangely, this was a motivating factor in recording the music, though this has never typically been the case for me. Even better, because I am the sole author of the music, I'll retain full rights and earn 100% of the royalties, but what about when you're in a band?

In an effort to discuss legalities and close any gaps between the truth and reality, I'll use Nirvana as an example to explore the finer points of  music royalty distribution. As anyone who knows me understands this is one of my favorite topics. Bear in mind, I'm not an expert, just a fan.

Years ago, I bid on a tape machine on eBay, specifically an Otari MX-5050 Mark III 8 track recorder. Of course, that specific machine was the exact unit that was used to record Nirvana's debut album, "Bleach." That album was recorded by Jack Endino, who billed the band roughly $600 for the recordings. After Bleach came "Nevermind" and Nirvana hit the big-time. With their meteoric rise into super-stardom, Nirvana's music royalty situation became more complex.

So, I was pretty sure that there was some sort of major royalty-redistribution that went on during Nirvana's major label career, but I wasn't positive. I did some research and found out the facts. First off, I searched the public records using the online copyright database and searched for copyrights filed for "Cobain, Kurt." I found them all and inspected "Smells Like Teen Spirit" first. It looks like this:

So we're seeing 
"Appears on Nevermind," 
"Published by Sub Pop," 
"Date of Creation: 1991," 
"Date of Publication: August 15 1991"
"Copyright Claimant: Virgin Songs, Inc. & The End of Music"
"Authorship on Application: words and music: Virgin Songs, Inc, employer for hire of Kurt, Krist and Dave."

So it seems like through an agreement with Virgin Songs, Inc. and "End of Music", the label that released "Bleach," known as Sub Pop, retained publishing rights over "Smells like teen spirit," and likely all of the tracks on Nevermind, which is something I'm familiar with, and an out-of-the-gate complexity. But I was more interested in the Kurt Cobain royalty redistribution that happened retroactively. As I looked through the online database, a record titled "Transfer of Copyright," caught my eye. It looks like this:

And here we're seeing that on September 7th of 1993, Fourteen (14) Nirvana song copyrights were transferred from 1. Krist, Dave and Kurt TO 2. Kurt Cobain doing business as "End of Music." And we're also seeing: "Date of execution" as May 6th 1991. So this was retroactively executed four months prior to the commercial release of Nevermind.

When we click into the "List of Titles" link we see this:

So, for example, we're seeing this:
"Smells like teen spirit / By Virgin Songs, Inc., as employer for hire of Kurt Cobain, Krist Novoselic & David Grohl. PA 541-273."

But mostly we're seeing this:
"In bloom / By Virgin Songs, Inc., as employer for hire of Kurt Cobain. PA 541-279."

This is all well and good, but what about the actual Nevermind album's liner notes? I have a copy of an original 1991 version on CD. I popped it open and took a photo of the credits:

Notice it says, "All songs lyrics by Kurt Cobain / Music by Nirvana." and "All rights controlled and administered by Virgin Songs, Inc."

Now what does this all mean? Let's break it down...

We'd have to get a copy of Nirvana's recording contract with Virgin Songs, Inc. and their agreement with "End of Music" to really know what their deal looked like in terms of the rights, but from what we can see here, it seems like Kurt Cobain and Nirvana retained their intellectual property rights despite the fact they may have transferred the control/distribution rights for Nevermind (at least for a duration of time) over to Virgin Songs, Inc. most likely via the agreement/partnership with "End of Music."

Where does the DGC (David Geffen Company) record label imprint come into play? From what I can tell, DGC was responsible for the physical distribution of Nevermind (And would I guess financed the manufacturing of the discs via an agreement with a disc-making plant, perhaps a Sony plant), whereas the publishing rights were split between Virgin Songs, Inc., "End of Music" and Sub Pop. Of course, this blog post mainly focuses on the rights-to-royalties, which all happens after sales. An interesting note is that upon release, Nevermind was certified Gold (500,000 copies) and Platinum (1,000,000 copies) in November of 1991, only two months after it was released. The average cost of a CD in 1991 was $12.91 according to the "US Industrial Outlook 1993" book.

When it comes to royalties, it appears as though, through the original deal with Virgin Songs, Inc. Nirvana as Kurt, Dave and Krist were splitting royalties off Nevermind three ways, so each member was earning 33.3% of royalties, and this was being paid out (via control) by Virgin Songs, Inc. who, we see listed in the "Authorship" section of the "Teen spirit" copyright, as an "employer for hire" of Kurt, Krist and Dave. 

So, why did Kurt Cobain file for Copyright transfer if he already had an agreement with Virgin Songs, Inc. through his "End of Music" company? It's been written that all of the sudden, Cobain decided he should earn a higher royalty, and this filing represents concrete action taken to change the royalty distributions for Nevermind. But why not just negotiate with Virgin Songs, Inc. to pay out Dave and Krist less money through the agreement with Cobain's company, "End of Music?" It's possible that Kurt went to David Geffen and asked for a higher percentage of royalties. The "Transfer of Copyright" filing allowed Cobain to bypass any subsequent negotiations entirely. The filing provided Cobain with rights to 100% of the royalties for each of the tracks with only his name listed.

So, to summarize, Nevermind was released in the fall of 1991. Then, all of the sudden in 1993, Kurt Cobain decides to exercise his intellectual property rights over several Nirvana songs retroactively (i.e. music recordings), and reclaims ownership of 14 of the titles. How does he do this? Is it ethical?

If we again inspect the liner notes for Nevermind we're seeing, "All songs lyrics by Kurt Cobain," and, "All music by Nirvana," in addition to the "All rights controlled and administered by Virgin Songs, Inc." I guess the wording here is key, because Virgin Songs Inc. may "control and administer" the rights, but that doesn't mean they exclusively own the rights. 

As we see on the copyright for "Teen spirit," the claimant is both "Virgin Songs, Inc." and "End of Music." This "End of Music" company likely garnered Kurt Cobain the leverage to exercise his rights over his own intellectual property, which is exactly what he did in 1993.

The fact the liner notes spell out, "Music by Nirvana," and "Lyrics by Kurt Cobain" is evidence of Kurt's intellectual property rights over the lyrics, and for the music, we must venture beyond closed doors (and inspect the music ethics of Kurt Cobain) to inspect whether or not he was the sole creator/writer of the music

"All music written and recorded by Nirvana," would have been a distinct difference from "All music by Nirvana," in that the word "written" is left out of the latter. In Cobain's "Transfer of Copyright" filing, we're seeing he legally reclaims his intellectual property rights as the sole writer of several Nirvana tracks (i.e. music, composition, sound recordings). So, with the "Transfer of Copyright," Kurt is saying, "Yeah, the music is by Nirvana, but I wrote it."

Bear in mind, Nirvana was the biggest band in the world shortly after the release of Nevermind, and this was a time before digital music. In order to listen to the CD you had to buy it, it was that simple, and people loved to buy CDs to play on their home stereo and in their cars. 

My point being, Kurt Cobain had a ton of power if he went to Virgin Songs, Inc. or DGC and said, "Hey I want to do this," they wouldn't want to poke the bear. He was earning them millions of dollars with his intellectual property that they controlled the rights to. If they weren't careful, Cobain could potentially relinquish them of their control over the rights legally (perhaps before or after his recording contract expired). What he seemed to do in 1993 was to explicitly restructure the rights-to-royalties for these 14 songs, through Virgin Songs, Inc., who retained control over the rights, and he did this via a transfer of copyright back to himself. How?

So, what seems to have happened is Kurt Cobain went to either his label, DGC or "Virgin Songs, Inc." and said something like, "I want a higher share of the royalties because I am the primary songwriter, and in fact, I've written all of this material myself. It even says so in the liner notes for Nevermind." 

What Virgin Songs, Inc. or DGC said in reply was likely, "Ok, what we need to do is remove Krist and Dave from the copyrights, and then we'll transfer that portion of the royalties back to you." And this is how the royalties were re-structured, in a way that likely mirrored the reality of the creation process, you'd hope, from an ethical standpoint and not as a result of Cobain's own power trip. 

In an interview with Melody Maker magazine in July of 1993, Cobain addresses the royalty-percentage changes, by saying, "I write 99 percent of the songs," ... "I just felt entitled to it," ... "[I]t's only in one area of payment, just the songwriting credits." And, more interestingly, "Many were the times I've taken Krist's bass away from him and shown him what to play, and sat behind Dave's drum kit and shown him what to play."

This whole scenario with Kurt Cobain and Nirvana's Nevermind raises both philosophical and ethical questions.

First off, let's consider how this music was written. Particularly, how much of the music was written by Kurt Cobain before it was brought to Krist and Dave for the full blown "Nirvana" treatment?

The line of delineation must be drawn across authorship in the following way:

• 1. If Kurt records a demo of guitar, bass, drums and vocals all by himself and brings it to Krist and Dave, then Krist and Dave are essentially "for hire" at this point. This is sometimes referred to as, "hired guns."  Kurt would be entitled to 100% ownership over the rights.

But, if...

• 2. Kurt only brings a guitar part, and Krist and Dave add in bass and drums, this would represent a creative collaboration, and each member would be entitled to 33.3% of the rights/ownership.

Of course, the question is of origination. Some would say that because Kurt brought the guitar part to the writing session and started playing first, he might be entitled to full ownership over the resulting product, but certainly that's not true if Krist and Dave are contributing original music in an additive way. The decision point of what drum parts (Dave) and what bass parts (Krist) choose to play along with Kurt's guitar is a rights-to-ownership instance.

This all becomes mucky when it's a "behind-closed-doors" rehearsal of new material. And this is where ethics come into play. Because without any record of the rehearsal/writing session, it's easy for one of the contributors to claim ownership over more than their share of contribution. And it's hard to prove otherwise without any explicit proof.

"Smells like Teen Spirit" seems to be a unique case. Again, the "Transfer of copyright" looks like this:

"Smells like teen spirit / By Virgin Songs, Inc., as employer for hire of Kurt Cobain, Krist Novoselic & David Grohl. PA 541-273."

Why are Krist and Dave listed on this specific entry in the "Transfer of Copyright" filing? It seems as though they are listed because they are writers on the song, "Smells like teen spirit."

So, even if Kurt brought the lyrics and the guitar part to the writing session for "Teen spirit," it seems as though Krist and Dave contributed to the final iteration in such a way that they each retained a share of the rights over the track (perhaps not a full 33.3% share, but some sort of non-trivial percentage). 

Or, perhaps Kurt's "End of Music" company was forced to pay a certain royalty for "Teen spirit" over to Krist and Dave due to some other reason, as it pertains to Nirvana's initial contract with "Virgin Songs, Inc."

The fact "Smells like teen spirit" was a lead single off Nevermind could have granted Krist and Dave contractual ownership over the music as part of Nirvana's record deal. It's tough to say.

At the end of the day, these questions of music ethics are important. What happens behind the closed doors of a band in terms of writing and rehearsals is known only to those who were present. Of course, where there are demos, there is proof (more or less). At the end of the day, this sort of mental exercise is worthwhile. And, ultimately, the truth will set you free.

Perhaps Dave Grohl's creation of the "Foo Fighters" was a result of fatigue from the legal plyometrics of Nirvana. With Foo Fighters, Grohl was in the driver's seat. It was his time to maintain ownership over his own music, and create his own music ethics legacy. After all, he was the fifth drummer of Nirvana and despite the fact he brought them to a new level of success, he could be described as a "hired gun." And I'm sure that's extra tough considering the "Transfer of Copyright" filing where his creative contributions in terms of performance were legally invalidated for several of the tracks off Nevermind. Would the songs sound the same with a different drummer? Maybe close, but not exactly the same, no.

With Krist Novoselic it's more of an ethical question. He was a full-blown member of Nirvana from the early days. He was at every rehearsal, every show, until the end. So, does Kurt Cobain owe Krist a share of the royalties? Legally, it seems the answer is no, certainly not for music Krist didn't write. But ethically, this is where you could criticize Kurt's Cobain's decision to restructure the royalty agreement, maybe not from the perspective of a purist, but rather, a humanitarian.

Regardless, with full ownership over the copyrights to those 13 or 14 tracks, Cobain and his "End of Music" company could have still eventually decided to pay out Krist and Dave their original 33.3% royalties-owed, but we never made it that far. Until next time - Mike.