Should You Sign a Music Publishing Deal?

If you write your own songs, at some point in your career you will want to consider whether signing with a music publishing company makes sense.

Music publishers are sort of like record labels, but for your compositions rather than your master recordings which embody your compositions.

The right music publisher can take your career (and your earnings) to the next level. The wrong publisher can do the opposite. As with choosing a record label, choosing a music publisher is one of the most important decisions of your career, and should be treated as such.

Here are some things to consider when looking at signing with a music publishing company:

Is it the Right Fit?

In essence, all music publishing companies do the same thing: they license your songs and collect your music publishing revenue. However, every music publishing company does this differently. Some publishers work very closely with their writers, arranging co-writes, providing feedback on compositions, and generally guiding the direction and growth of their writers’ careers. This sort of “proactive” publisher often has a creative team that works directly with the writer, and actively pitches their songs to music supervisors, corporate clients, and labels.

On the other end of the music publishing spectrum are more “reactive” companies, that focus more exclusively on administration. These publishers are happy to approve a placement that lands on their desk, but won’t actively pursue it. This music publishing entity is essentially an accounting firm that assesses the value of a potential client’s catalog and earning potential, and buys a piece of it for a price. This “price” is known as a publishing advance, and can be quite sizeable. Seven figure music publishing advances still exist in 2017. Indeed, music publishing is one area of the music industry that continues to have serious value, despite the downturn in music sales.

When is the Right Time?

For most songwriters, signing a music publishing deal is a question of “when” rather than “if”. So: when is the right time? The answer is different for every songwriter, but something I have learned over my years as an entertainment lawyer is this: you will know when the time is right.

Sometimes a deal comes in the first year, sometimes it takes a few decades and a thousand songs. Last year I negotiated a million-dollar music publishing deal for a client who at the time had only written and released seven songs. The hype and excitement around this particular writer was exceptional and of course atypical, but it was quite clear based on the offers being tabled that the time was right to strike a deal.

Most of us aren’t so fortunate, so it’s really a matter of doing your thing until the right offer is presented. It might take one year; it might take twenty.

Do You Want a Major or an Indie?

Many of the largest publishing companies are directly tied to major record labels. Warner Chappell and Warner Music; Universal and Universal Music Group; eOne Publishing and eOne Recording; Nettwerk Music Group and Nettwerk Publishing.

Many indie companies contract a major to administer their catalog. Then there are the “fully indie” companies that do it all themselves.

As with the record label discussion, it’s really up to you to determine what size of publisher is best for you.

While the smaller publishers might be more personalized and focused on you as an artist, they might lack the connections of the big time players.

And while the majors have the connections and the resources to take you to the top, you might get lost in the shuffle of the other clients on their roster, when your songs are competing against those by Beyoncé, Coldplay, Adele, etc.

Why Do They Want You?

As mentioned earlier, all music publishing companies essentially do the same thing. One question I always pose to my clients: why does this particular publisher want to sign you? You’re giving up 25% to 50% of all your publishing revenue streams, so they better be worth it. Why are they excited about your songs? What do they plan to do with them? What placements or endorsement deals do they think fit your brand and artistic vision?

Before you sign away a significant chunk of your music publishing revenues, make sure someone at the publishing company is excited about your music and has a plan for it going forward. You also want to make sure that this person will be available and responsive to your questions and concerns after the deal is signed.

Do You Need a Publisher at All?

Many songwriters self-publish, and avoid signing with a third party publisher at all. Songwriters who retain their publishing rights and earn 100% of the publishing income generated by their songs. In addition to earning twice the revenue, self-publishing ensures that you control all creative and business decisions regarding your songs.

The major drawback to self-publishing is similar to that of self-releasing your music: you miss out on the benefit of the connections and clout brought by a publisher (or record label).

In other words, as a self-published artist, you will have to secure placements and generate income yourself, while handling the accounting and administration. Some artists are good at it; many are not. Ask yourself whether you have the knowledge and time to be an effective publisher, and what sort of demand your catalog is generating.

Signing with a music publisher can take your career to the next level, but be sure you do your research, pick the right one, and know what to expect going forward. As always, send me questions along the way.

Should Musicians Self-Publish?

As a songwriter, you have likely heard talk of self-publishing your compositions. You’ve likely noticed, while perusing the fine print in the liner notes of your favorite albums, that nearly all major artists have created their own publishing company.

This means that they’ve incorporated a publishing company, through which the publisher’s share of income flows.

The other half of publishing revenue, known as the writer’s share, flows directly to the individual writers, and cannot be assigned or transferred to a publisher.

So: why do major artists self-publish and should you do the same?

Publishing company

The “why” is fairly straightforward: for tax and liability reasons. When your songs are earning enough revenue, it makes sense to incorporate to allow the publisher’s share of revenue to flow through a company rather than you individually, and thereby be taxed at a much lower corporate rate. From a liability perspective, god forbid you are ever sued for plagiarism, the party suing can only go after the corporation’s assets, not your house and car.

The “when” is not so clear. I say “when” rather than “if”, as all songwriters incorporate a publishing company at some stage. When is the right time for you? If your songs are earning under a few thousand dollars a year, it doesn’t likely justify the costs of incorporation and maintenance of the company. As long as you’re registered as a writer with SOCAN in Canada and ASCAP/BMI in the USA, you will receive 100% of the publishing revenue, as an individual.

Publishing company

There are few scenarios that might indicate that the time is right. If you find yourself licensing music internationally, entering a sub-publishing deal with a foreign publisher, or being offered a co-publishing deal from a third party publisher, the time is right to incorporate your own publishing entity. This entity would then be the contracting party to the above agreements.

Another scenario is if you want to act as a publisher yourself and sign other writers to your company. This involves administering the rights of these writers, including issuing licenses, collecting revenues and distributing royalties.

Once you establish that you’d like to self publish, call your performing rights organization (PRO). They will perform a name search, and let you know if you have the green light to register the business name with the government. You will likely need to be creative in selecting your company name because any name that is identical or too similar to an existing music publishing company will be rejected in order to avoid confusion and the potential of payments being issued to the wrong company.

Once you’ve successfully incorporated and have a business bank account set up and confirmed with your PRO, you complete an application with the PRO, sign a publishing agreement (consult with an entertainment lawyer), and you are in the business of publishing.

Remember, being self published and being a successful publisher are two different things, so you may still want to partner with a publishing company when the right opportunity arises. For more on this topic, email me.

Publishing company

The 3 Types of Music Publishing Agreements (and why they’re important)

Music Publishing

If you write your own songs, either with a band or on your own, or co-write with others, developing an understanding of music publishing is probably the most important thing you can do for your career.

That being said, music publishing is the most confusing aspect of the music business. The number of blank stares that return my gaze after I explain music publishing to a fellow musician is countless, and perhaps warranted. This stuff is complex.

I’ve put this blog together to help reduce the confusion.

Music Publishing Revenue

Pub 1

In every song, music publishing revenue and ownership is divided into two halves: the Publisher’s Share and the Writer’s Share, as per above. The circle as a whole represents the total music publishing ‘pie’ in a single song. The Writer’s Share always belongs to you, the writer, and it can never be assigned or sold. If you never sign a music publishing deal of any kind, you will retain 100% of the music publishing revenue and ownership in your songs, meaning you will own the full pie.

If you sign a music publishing agreement, you give up part of the Publisher’s Share, or the left half of the pie. Let’s look at how that might happen.

music publishing

The 3 main types of music publishing agreements are:

1) Publishing Administration Agreement

Often artists want to retain ownership in their music publishing, but hire a third party to exploit their catalogue of songs (through film/tv placements, etc.). A music publishing administrator also helps ensure that the correct amount of music publishing revenue from your catalog of songs is being paid and collected around the world. You’d be surprised how many commercials and films and video games use music and fail to pay the writers of the music. This is where an administrator can be your best friend, by ensuring your songs are generating the most music publishing revenue possible around the world.

If you sign a Pub Admin deal, the administrator does not acquire ownership in the copyrights in your songs, but administers them for a fee (ranging from 10-25%). You as writer give up a percentage of your music publishing revenue, with the hope that the administrator will help your songs generate more revenue to offset the fee. In the diagram below I’ve illustrated a 20% pub admin deal. The 20% only applies to the Publisher’s Share (the Writer’s Share is untouchable), so that’s 20% of 50%, or 10% of the overall publishing revenues generated by the Artist’s songs. The Artist retains full ownership of the full pie, but gives up 10% of the total music publishing revenue to the Pub Admin company.

Pub 2

2) Co-Publishing Agreement

The Co-Pub deal is the norm in the business today. The music publisher and the writer co-own the copyrights in the musical works and the music publisher administers the copyrights in the works. This is a deeper commitment than the Admin Deal, as the term is often longer…often equal to the life of the copyrights (which equals the life of the author plus 50 years!). In exchange for this deepened commitment, a music publishing advance for the Artist is normal. The standard Co-Pub deal involves half of the Publisher’s Share going to the Publisher, meaning we’re left with a 75/25 split in favor of the Artist (i.e. 50% of the Publisher’s Share half is given away, or 25% overall):

Pub 3

3) Buy-Out Agreement or a “Full” Publishing Agreement

Buy Out deals are not as common today as they were in the past, and are typically seen when a significant advance is being offered for the Writer’s catalogue. The Publisher owns 100% of the copyrights in the musical works and has sole administration rights. The overall split of music publishing revenue is 50/50, as the Writer is left only with the Writer’ Share of music publishing revenues from performances.

Pub 4

What Does a Music Publisher Do? 

Generally speaking, music publishers administer, promote, exploit and protect your catalogue of songs throughout the world. The two key revenue streams for music publishers are mechanical royalties (royalties from the ‘mechanical’ reproduction of the songs) and performance royalties (royalties earned from the public performance of the songs).

Any time you hear a song on the radio, at the grocery store, at a hockey game, or on a video game, music publishing revenue is being generated and collected (in theory) by a publisher on behalf of an artist.

Until the 20th Century, a music publisher’s main function was administrating printed music in all its forms. However, as 20th Century technology extended the use of music, so the responsibilities of publishers similarly widened to include the licensing of music on records, radio, television, films, concerts and, more recently, tapes, compact discs, satellite and cable distribution, karaoke, video games, computer software, CD-ROMs and other forms of multimedia, etc.

Publishers may also actively ‘pitch’ songs to other artists to record, or ‘plug’ songs to radio, tv/film, and other users.

What is Sub-Publishing?

Once you’ve signed with a music publisher, they will often hire other publishers in other countries to help exploit your songs and collect the revenues around the world. These other publishers are called Sub-Publishers. Often times your publisher will have pre-existing agreements with sub-pubs in every territory in the world.

The advantages of sub-publishing are obvious: the foreign publisher, ideally, has the necessary contacts to expose works in that territory and the administrative skills to collect subsequent royalties. Securing covers is part of the job, but having a sub-publisher ensures proper registration, licensing and documentation of a catalogue. Also, a sub-publisher can, through membership in local mechanical and performing rights societies, collect and distribute income generated by an original recording. Of course, major publishers with offices in many territories don’t usually require sub publishers.

Conclusion

The question remains: should you sign a music publishing deal? There is not a simple answer. I’ve seen more and more artists moving away from the confines of Pub and Co-Pub deals, and opting instead for the freedom of Pub Admin deals. The advances are often lower, but the flexibility and independence are appealing.

So the answer really depends on the reputation of the publisher involved, the current state of your career, the offer on the table, etc. Along with choosing a manager and record label, choosing a music publisher is one of the big three decisions you’ll make in your career. In other words: a decision not to be taken lightly! Call me with questions, and I’ll be happy to help. music publishing

What Rights Do You Have As a Song Co-Writer?

song co-writer

If you are a song co-writer, you have certain rights. But so does the other song co-writer. What rights do each of you have in the co-written song? Can you make further changes to the song without the co-writer’s consent, or sign off on the use of that song in film or television? Can you record a version of that song with musicians other than the co-writer? Can you release a recording of that song on iTunes or YouTube?

As we’ll see here, the answers aren’t as simple as one might think. As an entertainment lawyer, song co-writer disputes are one of the most common issues in the music industry.

Here are the key principles of co-writing that I’ve summarized and drawn from years of experience, to make it a touch easier on you.

1)  There are always 2 copyrights in a recorded song, no matter how many Co-Writers are involved.

As we examined in detail here, there are two distinct copyrights in each piece of recorded music: one in the musical work or composition, and one in the sound recording of that composition. Within those two types of copyright, there are typically three parties that have control of the copyright: the writer, the performer, and the producer (known as the “maker” under the Copyright Act). The writer has copyright in the musical work, while the performer and producer are often granted a copyright in the sound recording. If the songwriter is also the performer on the sound recording, they are granted rights in both the musical work and the sound recording.

song co-writer

2) When More Than One Co-Writer is Involved, a Joint Work is Created.

When more than one song co-writer creates a composition, it is considered a joint work under the law. This means it is a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” A song acquires copyright protection when it is “fixed in any tangible medium of expression from which it can be perceived, reproduced”.

In other words, when you create lyrics or music, intending that someday they will be part of a song, your creation becomes part of a joint work when it is recorded on tape or written on a lead sheet along with someone else’s lyrics or music. Even though your individual contribution might have been separately protected under copyright law and suitable for copyright registration on its own, the song that results from the merging of the individual contributions of the songwriters is then granted copyright protection in its joint form.

song co-writer

3) Song Co-Writers each own undivided, equal interests in the whole song.

Unless you agree to some other division of ownership and income participation with your song co-writer, you will each own an equal share of the song (i.e. one-third each if three writers, one-quarter each if four, etc.). These fractional interests apply to the entire song, and separate lyrical and musical ownership rights to jointly created songs do not exist without a written agreement among the songwriters. In other words, it will be difficult in the future to separate the lyrics from the melody from the music, if you find yourself in a conflict with your song co-writer. You will both simply own half of the entire song.

4) Contributions to a joint work cannot be separated.

Without the consent of the other song co-writer involved, one writer can’t simply remove another co-writer’s contribution and get a new collaborator to replace it, because the original song co-writer will still own an equal share of the original composition, and that composition cannot be changed without that owner’s consent. The ownership share of the original collaborator may not be reduced by the addition of new writers without consent.

song co-writer

5) Each Song Co-Writer can grant non-exclusive licenses without the consent of the other co-writers.

Non-exclusive licenses are permissions for the use of a song that are not exclusively transferred to the party receiving the license. For example, most synchronization licenses for the use of a song in a motion picture or television program are nonexclusive, because the owner of the copyright usually reserves the right to license the use of the song to some other television or motion picture producer.

 6) No Song Co-Writer may assign an exclusive right to a song without the consent of the other writers.

No song co-writer can deal with the publishing rights (that is, the ownership and administration rights) of the other songwriters. It is quite common for one song co-writer to assign his/her share of general music publishing rights, giving a particular publisher the same fractional interest in the entire song that the songwriter possessed before transferring the music publishing rights. For example, if you own 50% of the composition, you can transfer that 50% to a publisher in a publishing deal, but cannot transfer any portion of the remaining 50% that belongs to the other writer.

Other exclusive transfers of rights to the entire song are also forbidden. For example, no single collaborator can grant to a print music company the exclusive right to print sheet music of the song or grant to a sub-publisher in Italy the exclusive administration rights to the Composition throughout Europe.

7) All Song Co-Writers have a legal duty to account to each other for any monies earned from any use or exploitation of the song. 

In its most basic sense, this just means each writer has to pay the others their equal share of monies received, but the “receiving” writer should also provide information about the source of the monies and a copy of any accounting statement received by that writer along with the payment.

8)  Each Song Co-Writer also has a legal duty to give credit to the other writers wherever a printed or visual credit appears for any of the writers.

This would include on album inserts, iTunes, YouTube, in film credits, etc.

Conclusion

It is crucially important to sign a Co-Writer Agreement anytime songwriting occurs with more than one writer. Film producers will drop a song from being used in their production if a clear line of ownership cannot be established. If no Co-Writing Agreement can be shown, the producer will simply move on to the next song. The same can be said about songs being considered for advertisements (Apple has ‘made’ several careers), video games, etc.

The agreement itself is quite affordable, and will open doors for you for years to come. Contact me today to discuss further, and to discuss your favourite Eagles vocal.

song co-writer

The 2 Copyrights in a Song (or The Most Important Concept in the Music Business)

Most artists I talk with have a difficult time understanding the different copyrights in a song, and the revenue streams that flow from them. I don’t blame them. Our copyright system has developed in bits and pieces over decades, so there are layers of complexity that still confuse me (only once in awhile though, and early in the morning).

In every recorded song there exists two main copyrights: one in the written song itself (the Songwriting Copyright) and one in the recording of the song (the Sound Recording Copyright). It is important to understand that the two main copyrights in a song are separate and distinct, and involve different rights and sometimes different owners.

Copyrights in a Song: The Songwriting Copyright

Whoever writes the composition is considered the owner of the Songwriting Copyright. For more on What Constitutes Songwriting, see my article here. The revenue streams generated from the Songwriting Copyright include performance royalties (from radio play, live performance of the song, etc.), mechanical license royalties (a fee paid per song for every copy of the song made), synchronization fees (if the song is ‘synched’ to film or television), and others.

If you sign a publishing deal, you are giving up certain rights in your Songwriting Copyright. For more on the different types of publishing deals, see my article here.

Copyrights in a Song: The Sound Recording Copyright

When a musical composition is recorded, a new copyright is created called the Sound Recording Copyright. The revenue streams generated from the Sound Recording Copyright include record sales revenue (both digital and physical), and master use license fees (to use the actual recording of the song in film/tv/etc.).

If you sign a record deal, the record label acquires certain rights to the sound recording copyright.

Which Copyrights in a Song Are Most Valuable? 

In the pre-internet, pre-Napster world, the Sound Recording Copyright generated a great deal of revenue. This is because records sold a lot more, record deals were aplenty,  and all was good (not really, but you knew that). As the Dylan song goes, things have changed. To say that the sale of recorded music has taken a major hit is the understatement of the year. However, while the sale of music has gone down, the overall use of music (in film, tv, radio, internet, streaming, in restaurants, at sporting events, etc.) has never been higher.

When a song is used, i.e. played/aired/performed, it generates revenue for the songwriter. This means that the Songwriting Copyright is hugely valuable in the modern music industry. It is far more valuable than the Sound Recording Copyright in my opinion.

So what does this mean for you as an artist?

First: The ability to write songs has never been more valuable.

Second: While many artists think that a record deal as the main indicator of success, a strong publishing deal may earn you far more money and open a lot more doors in the long run.

Third: Be very careful when signing anything that mentions publishing or songwriting or an assignment of any rights as a writer.

Finally: While artists like Elvis and Frank Sinatra used to make a very good living performing/recording songs written by others, in today’s industry, those that can write their own songs (and put on an exceptional live show) are much more empowered to make a living from music. So long story short…keep writing. Because unless you make a lot of money from touring, it’s tough to be Ringo in 2017.