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.

What Constitutes Songwriting? The Million Dollar Question in the Music Industry


What constitutes songwriting? As an entertainment lawyer, it is the single question I get asked the most. And without a doubt, its one of the most important and complex questions in the music industry today.

While most musicians know very well how to write a song (whether the songs are good or not is another story!), what is less known amongst musicians is: which elements of the finished song count as songwriting? Should the tambourine player or backup singer be included as writers? What about the drummer and bass player? If the song is co-written with a friend, what percentage should each writer receive? How do we decide what constitutes songwriting?

Songwriting is Complex

The answers are not always straightforward, and I’ve found that the issue of songwriting and publishing is one of the most confusing for musicians. This is due in part to the fact that there is no “right” way to divvy up songwriting. As you can imagine, this creates much uncertainty in the music business…and uncertainty leads to misunderstanding…which leads to conflict…which leads to litigation. Songwriting disputes create a lot of work for entertainment lawyers, myself included. In a way this makes sense: the amount of revenue flowing to songwriters has never been higher. While the amount of recorded music being purchased continues to decline, the amount of music being used (in film/tv, on the internet, on radio, in video games, etc.) continues to escalate. Music is being used more today than ever before. The revenue generated from the use of music goes to the writers of that music.

Most songs in the world have multiple songwriters, so understanding the concept of co-writing is one of the most valuable things you can do for your career.

What are the “parts” of a song?

Most popular songs are comprised of vocals/lyrics, melody, chord structure, and instruments. The melody can be comprised of chords, instruments, vocals, or all of the above. In hip-hop, the vocals and beat take precedence (and instruments are often sampled). In jazz, the instruments are the focal point, with vocals often taking a back seat. Then in rock and roll, guitars and drums are more important than in country. In electronic music, the beat takes center stage, with some sort of melody coming from chords or vocals. So as we see, the “parts” that comprise a song – and the importance of those parts – can change from genre to genre and song to song.


Which “parts” constitute songwriting? 

Generally speaking, any significant contribution to melody, lyrics, or structure can count as songwriting.

We generally think of a songwriter with their guitar writing the songs and strumming chords, and the melody coming from a combination of those chords and the vocal. But a signature guitar riff (like Keith’s famous lick in “Satisfaction” or the riff in “Smoke on the Water”) might count as songwriting. Or the bass line on Queen’s “Another One Bites the Dust”, or drum intro on their classic “We Will Rock You”. It’s hard to imagine these songs with any other bass line or drum beat, and they form as much of the structure and in fact melody of the songs as the guitar and vocals. A great example is the Procol Harum case, wherein organist Matthew Fisher sued the band for past royalties due from their massive 1967 hit “A Whiter Shade of Pale”, on which he played the main organ theme. Mr. Fisher was never given songwriting on the song, and felt that his organ riff was a critical part of the song’s structure and melody. At trial, his contribution to the song was deemed to be 40%, which amounted to millions in retroactive royalties since 1967. Sadly for him, he lost it all on appeal, with the court declaring his delayed claim “excessive and inexcusable” (he had waited 38 years to make claim, as he knew it would be the end of his tenure in the group!).

However – generally speaking – adding a guitar solo or drumbeat or organ over an existing song structure (and not contributing to the actual structure or melody of the song) is not typically considered songwriting. As you can see, what constitutes songwriting is very much a question of degree. Let’s look at some real world examples to provide some clarity.


How do the pros do it?

Chris Martin of Coldplay splits the songwriting equally with his band mates, even though he writes the music, lyrics, and melody. R.E.M. and The Red Hot Chili Peppers divide songwriting equally amongst the band members regardless of who wrote what for each song (and look how happy R.E.M. looks!). In U2, Bono claims the lyric credits but splits the music credits equally between him and the rest of the band. Professional songwriters in Nashville generally operate under a “gentlemen’s agreement” where the songwriting is split equally between whoever is in the room while the song is written (so they make sure the right people are in the room!).

The flipside of this is a band like the Rolling Stoneswho split the songwriting 50/50 between Mick and Keith and “hire” other members like guitarist Ron Wood to be in the band, and pay them a fee. Often, this fee is structured as a “work made for hire” arrangement, where the band member forgoes any songwriting credit he/she might be entitled to, as a condition of being “employed”. So even if the Stones record a song to which Ron Wood materially contributed, the songwriting would still be assigned entirely to Mick and Keith (no wonder Ron keeps recording solo albums!).

Then there is more “traditional” singer/songwriters like Neil Young and Bob Dylan, who typically write the entire song themselves, and bring the completed song to their backing band for additional instrumentation. In most cases, this additional instrumentation does not count as songwriting, so all of the songwriting stays with Neil or Bob. Both of these writers have definitely co-written songs over the years, but that usually involves a more overt effort to sit down with another writer for the purpose of co-writing (as opposed to simply bringing completed songs to a band to play instruments over).

So it really is a question of how the songs come about. With the Chili Peppers, the songs come about in a jam-based situation, where the music is created from the jams and Anthony Kiedis completes the lyrics later. With the Stones, it’s more Keith and Mick hanging out writing the songs, and bringing the mostly-complete works to the band. With Dylan and Young, they bring the songs to their band nearly complete.


How Should YOU Divide Songwriting?

The R.E.M./Chili Peppers method of songwriting splits is great if everyone in the band is crucial to the sound and success of the band. But if one or more members fail to carry their weight on a regular basis, then you’ll only resent them and be unfair to your own input by giving them an equal share of the songwriting.

The Rolling Stones/Neil Young songwriting approach works if you have enough money to “hire” your band mates, assuming your band mates are willing to give up their creative rights in exchange for a fee. Most bands, however, cannot afford to hire band mates, particularly in the early years. If this is your reality, and your drummer/guitarist/singer simply does not contribute at all to the songwriting process, you’ll want to have a candid discussion on songwriting splits and whether or not they’re going to be included. It could be the most important discussion of your music career.

It is important to remember that you want an arrangement that will keep everyone in the band happy, and more importantly, keep the songwriting juices flowing.


When is a Good Time to Determine Songwriting Splits?

The best time to decide songwriting splits is early in the creative process. Whether you’re sitting down in a Nashville-type co-writing situation or with your band mates, a discussion should be had in the early stages as to how things will be split. This is the tough part: sometimes you don’t know who deserves what until the co-writing has occurred. That’s fine — have the discussion shortly after the song(s) are written. The longer you wait, the more complicated things become (just ask the Procol Haram organist!).

A major benefit of having the discussion early is that everyone will have similar expectations in terms of songwriting splits, and this will create a more natural writing environment going forward. Now, the discussion may turn into an all-out fight when everyone’s true colors come out and they don’t happen to match. But maybe not. What I tell my fellow musicians is that it’s better to have that fight sooner rather than later. It will make all the difference.


Conclusion: What You Need to Know Now

1) SOCAN Registration is Not Enough. Most songwriters register their songs and songwriting splits with SOCAN and think this protects them legally. It does not. Or at least not in a way that will protect you in a songwriting dispute with your co-writer. SOCAN makes no representations that what their members register for songwriting splits is accurate. SOCAN administers and protects the performing right of its members, but does not administer or protect reproduction rights (mechanical rights, synchronization rights), print rights, translation rights, moral rights or neighbouring rights. So songwriting splits on SOCAN are not the law (in fact, I’m sure there are thousands of improperly registered songs on SOCAN). So you still want to register with SOCAN to get your performance royalties, but you need to protect yourself further with a Co-Writing Agreement.

2) Sign a Co-Writing Agreement. The best way to protect your rights in a song and to clearly articulate the songwriting splits between you and your co-writers is with a Co-Writing Agreement. This agreement outlines: the splits for each song; who has admin rights to the songs (i.e. who can sign off on the use of the songs for film/tv/commercials/etc.); whether the songs can be changed without the consent of the others; and a host of other important points. Also, if you hope to get your songs placed in film and tv, music supervisors need to know they have “one stop clearance” for the song…so without a signed Co-Writing Agreement handy, they will move on to the next artist and you’ll lose the opportunity.

3) Register with the Copyright Office. While copyright ownership in Canada is automatic upon the creation of a song, it is still important to have evidence that establishes ownership and date of creation in the possible event of infringement. To register a musical work claim in Canada, complete the form from the Copyright Office website (part of the Canadian Intellectual Property Office) and send it back to the office along with the filing fee.

4) Go forth and write. And write. And keep writing. And contact me along the way, with legal or music questions. I’ll listen. And I might have some answers for you. Good luck.


Should Musicians Give Their Producer Songwriting Credit?

very common question I get asked by my musician friends and clients is whether they should give their producer songwriting credit on songs they’ve produced.

This question brings up a key distinction to be drawn between the Songwriting Copyright and the Sound Recording Copyright.

Record Points vs. Songwriting Points

Rather than give their producer songwriting points, recording artists would traditionally give their producer 2 to 4 points on the record. In simplified terms, this means that 2 to 4% of revenues generated from the sale of these records would go to the producer. So for each $0.99 iTunes sale, two to four cents would go to the producer. Only the sound recording copyright is involved here.

However, I’ve noticed an interesting thing happening in the last few years: as record sales (and therefore producer royalties) continue to decline, many producers are suddenly calling themselves songwriters. In some cases, it’s justified: I know a lot of producers that are also talented writers, and who sit down with the artists they record and help them take the songwriting to the next level. They might help write lyrics, add entire parts to the song, suggest structural changes, or change the chords and melodies.

If the producer is indeed a co-writer, they would be entitled to portion of the songwriting copyright, for the length of the copyright (the life of the writers plus 50 years in Canada). Once a songwriter, he or she will always be a songwriter of that song, likely for a hundred years or more. They will be entitled to revenue from radio play, use of the song on television, at sports games, and any other time the song is performed…for decades.

Giving up songwriting is a big deal, and a much deeper commitment than giving up points on the record. See my article on The Two Copyrights in a Song for a more in-depth comparison.

This leaves us with the million-dollar question: where is the line drawn between producing and writing?

Producer or Producer/Songwriter? 

You as artist are paying – and likely a significant amount – to obtain the various services that a producer provides, such as offering their opinion of the songs, making suggestions on improving them, and suggesting changes to the arrangements. But do any of these things constitute producer songwriting?

For example, if a producer changes a single chord in the chorus of your song, is that producer songwriting? If they write all the lyrics to that chorus, is that producer songwriting? In my opinion, the answer to the former is no and latter is yes. Unfortunately, most contributions fall somewhere in between the two extremes, which creates a real grey area.

producer songwriting

What does the law say? 

In Canada, the question of whether the producer is entitled to songwriting was settled in the Sarah McLachlan case (see Neudorf v. McLachlan et al, BC Supreme Court). The court ruled that there must be proof of mutual intent between artist and producer that producer songwriting with the artist will take place, as well as evidence that such producer songwriting occurred. What this means is that bands and producers need to sit down before recording begins and discuss this important issue, and agree if the producer will get points on the record and/or on the song, or neither. Unfortunately, 90% of the time this does not happen, and things hit the fan when a song becomes a hit and the producer claims half of the songwriting.

While the issue of intent might be clear in some cases (i.e. was it discussed or not), finding evidence that producer songwriting actually occurred might prove to be difficult. See my article on What Constitutes Songwriting for more clarity. In the meantime, just know that as an artist, you should not be giving away any of your songwriting unless real co-writing is happening with your producer. And it should all be discussed before the “record” button is pushed.

producer songwriting