On the 3rd Day of Music Law...

a review of publishing deals.

While the past ten years have witnessed seismic shifts in the music industry, music publishers have remained (somewhat) even keel. Don’t get me wrong, they’ve faced their own challenges (for one, loss of mechanical revenues). They haven’t, however, felt it as deeply as the recording side of the industry. While a recording might be a hit just once, the song could continue to earn income for years beyond the original recording. This possibility, along with the specific rights carved out for musical works, makes the right publishing deal a great opportunity for any songwriter or singer-songwriter. For a review of the distinctions between musical works and sound recordings, and why songs might have longer shelf lives, go to “On the 1st Day of Music Law…“.

But getting a publishing deal remains challenging. Sure, there are “placement companies” that will represent your publishing (and master recordings too), convert the representation to exclusive if they place even one track, get the right to re-title your song for purposes of collecting performance royalties, and generally get all the rewards (the right to your catalog) without any risk (no advance). Some of these companies are great at getting placements, and no matter the terms (within reason), you’d benefit from affiliation with them. Placement on decent terms is usually better than no placement at all. A true publishing company, however, is more than just a placement service.

Both major and independent music publishers provide the following services:

  1. Develop songwriters and promote their works.
  2. Protect copyrights and pursue infringement actions.
  3. Register with PROs & Mechanical Rights Organizations.
  4. Coordinate with foreign representative / sub-publishers.
  5. Administer the collection and payment of license fees.
  6. Place musical compositions…

If you can find a company willing to handle these administrative tasks and placement services, you’re likely working with a music publisher. The music publishing deal comes in many shapes and sizes. So it is important for you to understand what deal is on the table and how to negotiate its terms. There are two main publishing deal categories – deals that require the songwriter assign over copyright ownership and deals that don’t.

No Assignment of Copyright: A publishing deal where the songwriter is not required to assign over copyright is known as an administrative deal – the publisher handles #1-5 above, but does not actively seek out licensing opportunities for the catalog. A sub-publishing agreement is an administrative deal with a foreign territory music publisher. In the sub-publishing deal, you grant the foreign publisher the right to collect fees and royalties earned from your catalog in a particular territory. Sometimes, the sub-publisher also seeks placement opportunities for your catalog. The fees associated with these types of deals are significantly less than deals where an assignment of copyright is required.

Assignment of Copyright: In a more typical publishing deal, the songwriter assigns the copyright in her/his work in exchange for an advance and a share of the revenues earned from the catalog. An individual song agreement is just that – the publishing company acquires the rights to one song only. The exclusive songwriter agreement signs a songwriter to a multiple song deal, with additional option periods to deliver additional songs. This arrangement could require the songwriter to deliver ten (10) songs during the first period, and then grant the publisher a few more options periods in which the songwriter has to deliver an additional ten (10) songs (or whatever number is ultimately agreed to).

Partial Assignment of Copyright: There is one more standard publishing arrangement – it is usually reserved to songwriters that are also artists with record deals. This arrangement is known as a co-publishing deal, in that the artist/songwriter only assigns half of the copyright over to the music publisher. Under this deal, the artist/songwriter is considered a publisher – as a result, for example, when the performing rights organization pays out royalties 50% to the writer and 50% to the publisher, the artist/songwriter receives the full songwriters share (50%) and half of the publisher’s share (25%). Whereas, under an exclusive songwriter agreement, the full publisher’s share is collected by the music publisher.

This 3rd Day of Music Law is only meant to serve as an introduction to the types of music publishing agreements. It does not discuss any of the terms of each deal, which can be highly complex and require significant revisions. Perhaps even more so, this posting put the cart before the horse in that what good is it to know about publishing deals before you know how to get one. If I could answer the latter question, it would be a miracle on 34th Street! Happy holidays!

Disclaimer: The materials contained in this blog posting have been prepared by Beame & Mencher LLP for informational purposes only and are not legal advice or counsel. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Online readers should not act upon any information in this posting without seeking professional counsel. The information contained in this posting is provided only as general information, which may or may not reflect the most current legal developments.

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