Should Musicians Self-Publish?

kurt_dahlArticles, Lawyer News34 Comments

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

34 Comments on “Should Musicians Self-Publish?”

  1. My question is if i made the music and produced a record with an artist would i copyright the complete song or just my music?

    1. Most smaller artists are self published. Some big names are as well, where they create their own pub company and might get the assistance of a bigger pub house like Warner Chappell etc.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  2. Thank you so much for the info! I’ve been looking everywhere for this easy explanation! I am going to self-publish my EP when registering it on BMI. If the money starts flowing in big-time, I’ll start my own publishing company. Thanks for this write-up!

  3. Hello, name is AYIE BIIE . i’m the one who emailed you yesterday. ok so i had a few questions. im just skeptical about a publishing company that i was signed to for 3 years. so basically i had a 3 year pub contract , with a producer who started has the pub company Smash Coast. with in those years nothing was placed, mainly due to not enough consistent work. (thats what the pub founder said was the reason why).

    so my #1 questions is should i be signed with a publishing company that is owned by another producer. i just see this being a conflict with getting my tracks to big placement. wouldn’t he want to get his own tracks in there first?

    #2 concern so recently i spoked with him . He said that the company i was signed under he stopped working with. and went back to his original pub company. so basically when i signed with him i signed under a name Mechach Media, he stopped working with them so now technically im free from publishing. but he introduced signing to a 5 year contract with his original pub company. so my question is , is that legit. i dont want to find out later down the road im still signed to that other company. . also his contract with his company is still similar 50/50 sync. i own 100% master . but is 5 years too long to be with a pub company. that i may still never get placements.

    #3 this pub company is more so boutique as they say, not a major company. should i be dealing with a pub company that doesn’t offer advances.

    sorry if this seems jumbled lol, i have so many concerns. Im due to sign with him. just want to get some clarity if i should commence with that. i can send contract if need be. Thank you sooo much for your time!

    1. It does sound a bit sketchy. I would try to find reviews online and/or from other artists that have worked with this publisher, to see what their track record is like. Don’t sign anything until you’ve done your due diligence. And feel free to send me the deal they offered you, I’m happy to give my opinion.

      Kurt Dahl
      Entertainment Lawyer

  4. Hey had one more question. could i have a publishing company and still sign with another publishing company.?

  5. Hi, Kurt! Great article!
    How about Songtrust? It administrates the royalties and affiliets an artist with PRO both as songwriter and publisher. The artist still owns 100% of copyright. In this case there is no need in creating your own publishi g company, right?

    1. Hi Mary

      I think there would still be a great benefit from a tax perspective, as all the pub money would flow through the pub co rather than the writer personally.

      Kurt Dahl
      Entertainment Lawyer

  6. If I have a publishing admin set up (ie songtrust, sentric) is it worth it to still set up a self publishing entity for the long term?

  7. Hi! If I am with a publishing admin ie Sentric or Songtrust, should I still set up my own publishing entity for the long term?

    1. It would be worth it at some point Merilou, as you would pay a lower tax rate on those revenues. Every writer creates their own pub co at some point, so it’s really a question of when rather than if. And the “when” is when it makes sense financially.

      Kurt Dahl
      Entertainment Lawyer

  8. Hi Kurt,
    Great article as usual. Thank you!
    Question: If I wait till down the road to start a publishing company and just sign-up with a P.R.O. as an artist, can I transfer ownership of my old songs to my Publishing company once I start one?

  9. If a major publisher commissions someone to orchestrate an existing big band piece, paying him $7,000 for a work for hire to produce a handwritten conductor’s score…then later…
    1.) Major publisher agrees to “Released [the arranger/orchestrator] from any and all contractual obligations.
    2.) Major publisher allows [the arranger/orchestrator] to “Retain the payment of $7,000 USD without further obligation to major publisher
    3.) Major publisher agrees that “if [orchestrator/arranger] receives an offer to make this arrangement available via third-party print publisher, [major publisher #1], as copyright holder of the original work, will enter into good faith negotiations with said publisher to approve a third-party print license to administer the arrangement.

    Then…
    Is the orchestrated piece no longer a Work for Hire?
    Is the orchestrated piece now a Derivative Work?
    Will the orchestrator own copy rights to the Derivative Work and be entitled to royalties going forward?

  10. Hey Kurt, fantastic article!

    I have a few questions regarding my 16 year old son who is a artist/songwriter, and is currently making music that’s soon to be released. I’d like to know what’s the best way to approach protecting him and his music, while maintaining 100% ownership of his works, since he’s still a minor? Should I set up a pub co? If so, what would be the best structure? Also, is it necessary to sign with other pro’s in addition to BMI or Ascap?

    This whole journey and process is all very new to me, therefore any advice you can give would be so greatly appreciated.

    Best,

    Jay

    1. Email me Jay and I can help. Sounds like your questions require fairly in depth answers. There are many ways to protect him and his music.

      Kurt Dahl
      Entertainment Lawyer

  11. I’m a songwriter and I have registered my songs with BMI. I want to be completely protected. Do I need to copyright and do I need to get a publisher license? I also want to make sure that different types of royalties are paid to me?

    1. You don’t need to incorporate your own pub co to collect all the royalties. So long as you are registered with BMI, they should in theory be collecting everything for you.

      Kurt Dahl
      Entertainment Lawyer

  12. Kurt this is great info. I will bookmark your site and your info.

    I recently was able to get a A+ level mixing engineer to work on my debut album for a heck of a deal.. and one of my old friends found out and wants to publish it. He hasn’t done that much music – he has done some but he’s been out of the loop a while.

    Am I being cynical to think he’s trying to capitalize on future opportunity from my album? I am thinking I should just self publish. I don’t see a benefit of a publisher unless they have some serious marketing / biz pull.

    thank you much

  13. Pingback: Part 2: A Beginner's Guide To Hiring A Music Producer - KYLEDEVINE.COM

  14. I am not yet in a place to incorporate my own pub company. But I am in the midst of signing a label deal right now. If I am set up with my PRO am I good to go on the publishing side of things for now? What else do I need to do to ensure the pub money from my records makes it’s way to me?

  15. Thank you for the informative article! I’m getting ready to affiliate with BMI as a new writer. Since I’m already incorporated for my music teaching business, would it make sense to go ahead and create my own publishing company under my already existing corporation? Or does it still make sense to wait and do this after I start making money with my music?

    If I should start my own publishing co., is it then necessary to fill out a royalty assignment form to assign my publishing rights to my company? Am I understanding this correctly? Also, since you said there is no way to assign or transfer writer’s royalties to a publisher, would I then always have to collect those royalties directly and not be able to benefit tax-wise by running them through my corporation?

    My accountant advised me to receive all royalty payments via my corporation. However, he then said that he didn’t think I needed to set up a separate publishing company in order to do so (that I could just assign my corporation as the payee) Is that correct? This doesn’t seem right to me. Wouldn’t I still have to assign royalties in order to do so?

    As I’m sure you can tell, I’m a bit confused and really in need of some clarity. I ust want to make sure that I set things up correctly before I proceed! Thank you for your advice.

    1. I’d require more info to give a full opinion, and if you’re not in Canada I can’t really advise on the corporate law side of things, but generally speaking – I think your existing company can be used to flow pub revenue through. You might want to check with your local performing rights org (ASCAP or BMI in the USA) and see what their requirements are for registering a corp as a publishing company with them.

      Kurt Dahl
      Entertainment Lawyer

  16. Thanks for the article! Regarding whether to copyright register a song under the arts/writer name vs. publisher name:

    In Donald Passman’s book “All You Need to Know About The Music Business,” after detailing how to start a publishing company, including filing a fictitious business name, he states something that is unclear to me:

    “Register the songs with the Copyright Office in the name of your publishing company. If the songs were previously copyrighted in your name, you need to file an assignment transferring them to the publisher’s name.”

    Why would these songs need to be registered in the name of the publishing company, as opposed to the writer? I understand this if the publisher and the writer were not the same person, but in my case, it’s all owned by me!

    1. Mostly it’s for tax benefits, i.e. your pub income flows through the company rather than to you personally. So you can have the publisher’s share flow through your pub co, and the writer’s share flows to you personally. Again, the main benefit is taxes, but also limited liability to a certain extent.

      Kurt Dahl
      Entertainment Lawyer

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