THE INS AND OUTS OF PUBLISHING DEALS FOR SONGWRITERS
The moment you sit down to create with another songwriter or a producer – whether writing music or lyrics – you will be facing a very common problem - who gets what?
We caught up with publishing expert Jonathan Shaw to gain some insight into this space. In the music industry, a music publisher (or publishing company) is responsible for making sure that songwriters and composers get paid when their compositions are used commercially.
Through an agreement called a publishing contract, a songwriter or composer "assigns" the copyright of their composition to a publishing company. In return, the company licenses the compositions, helps monitor where compositions are used, collects royalties and distributes them to the composers. They also secure commissions for music and promote existing compositions to recording artists, film and television.
As a rule of thumb and to avoid any dispute between creators regarding copyright or ownership, most artists would advise that all the individuals involved in the creation of the song, agree and sign – even a piece of paper - that specifies the part each person played in the creation of the song. More often than not, all parties involved in the creation of the song will agree to require each other’s consent before the music can be used. Down the line, both songwriters may end up assigning their rights to a publisher and it then becomes a co-publishing deal. Unlike co-songwriters, co-publishers have a better understanding of business deals.
Outside of this collaboration or joint author agreement, you may look at signing the common single song music publishing deal. The first thing they will make you sign for, is the warranty that you actually own the music. Here, the publisher will want to assign all your rights in the music to them (and I mean ALL your rights, they will list these in great detail) and this is why it’s often called a deed of assignment.
In return, the writer would get a percentage of any income accrued. This percentage is debatable and depends on each party’s bargaining power. A seasoned songwriter might be able to negotiate a better rate than someone who is new to the publishing space. This could lead to an exclusive writer’s deal where you continue to assign songs on a yearly basis in return for a higher royalty. A key deal point is often where the rights apply, as in the territory or countries the rights are assigned.
Many writers complain about being signed only to feel nothing is being done with the song, yet the expectation of getting someone to sign you is not necessarily going to make the publisher suddenly find work for the song. If you can improve those prospects yourself, you stand a better chance of negotiating a better deal and having the work get somewhere. It begs the question - if you have to “work the song” yourself, what is a publisher for? Often a publisher has better contacts, negotiating skills and administration than you could ever have on your own. A good song requires concentrated marketing which the publisher won’t waste the time and risk of losing money on. In any event, you may both agree that any major prospects be disclosed to each party as they happen, where the publisher will handle all the grunt work to put licences in place and collect money.
General points on income include around 50% of net proceeds from sheet music (or 10% of the retail selling price) and in absence of a better deal, 50% of everything else. Any of this income can be reduced, say by half, when the publisher exploits the work in other territories – because it’s often that much harder in other countries and they work with sub-publishers who know the local lingo but are also taking a cut of the income. Notably, the publisher may mention SAMRO’s rules for income from Performing Rights which gives the writer 66.3% of income. Otherwise they’ll stick to what’s stated in the agreement. Often this is calculated twice a year in June and December and paid out a few month after that each year.
Things that are often not mentioned in “standard” agreements are things like reduced period of copyright ownership or the right of return. This would mean limiting the amount of time the publisher owns the copyright before you essentially get out of the deal. Most publishers will agree it’s about the amount of time and effort put into popularising the work, allowing them to keep the rights for the life of the copyright,
But you would be quite justified saying that if nothing happens with the work in a few years you get your rights back. Same might be applicable should the publisher breach the contract. You may also wish to include a right of audit where if the royalties the publisher has on your statement is not the same, within a certain percentage, they pay for the cost of the audit. And just remember that when someone says it’s our standard agreement, it means it’s standard to them but you can negotiate and ask for things not in the piece of paper before you yet.
The importance of getting legal advice before you sign any publishing deal cannot be emphasised enough. At the end of the day, all I would hope for is a fair deal for everyone involved and hopefully some celebratory moments when that first big deal comes in. And of course when you get that pay-out you always wanted from someone using your music.
Jonathan G Shaw is a music business consultant, lecturer at Wits University and author of the textbook -The South African Music Business. His other personality is a successful recording studio owner, recording engineer and producer. Visit www.shawmusicstudios.co.za and www.ibilion.com