WHAT IS A MUSIC PUBLISHER AND WHY WOULD I NEED ONE? Part 3

Read part one HERE and part two HERE...

by Nick Matzukis
Advocate of the High Court
Lecturer in Music Law and Business
Academy of Sound Engineering
http://www.ase.co.za/

The publisher’s duty is to administer and exploit the copyrights on behalf of the writer to create as much royalty income as possible. In order to do this, he will require assignment of the Writer’s copyrights, to him.

Here is an example, from a publishing agreement, of what the Publisher, generally speaking, will ask you to assign to him in the contract: “The following rights, inter alia, including but not restricted to:

  • every right and interest of every kind in and to the results and proceeds of the Writer's songwriting; all licensing rights relating to the music;
  • exclusivity;
  • warranty of originality;
  • the right to perform the musical compositions publicly;
  • the right to substitute a new title or titles for any composition and to make any arrangement, adaptation, translation or dramatization of the music;
  • the right to produce and sell sheet music, orchestrations, arrangements and other editions; the right to secure copyright registration;
  • the right to authorize manufacture, advertise, license or sell reproductions including private performances and public performances, radio broadcasts, television, sound motion pictures, wired radio or cable television, phonograph records and any and all other means or devices;
  • the rights flowing from the law of copyright, including the right to sue; and such other rights as may be necessary to exploit the compositions.”

It’s a lot to be signing away, isn’t it?

So when a writer is contemplating concluding a publishing agreement, he should want to know the answers to many questions about the contract, including this one: Why do I need a Publisher? (In my book and course, I list 14 questions and answers that should be investigated before entering into a publishing agreement, but in this article I will only address this first question.) Some songwriters show resistance to ever signing a publishing agreement. Instead, they want to “publish themselves” (so-called “self-publishing”) by joining the collecting societies, including, of course, SAMRO and CAPASSO, directly, without publisher involvement.

These collecting societies usually do not pay their members any advances, but what is achieved by this is that the Writer cuts out the “middleman” (ie the Publisher) and therefore enjoys the potential to earn higher royalties (at least in terms of percentage. While this argument does indeed hold water for established songwriters, it cannot be denied that a young composer, new to the scene, generally does need the help of a publisher to make his/her mark.

The reasons why you might wish to conclude a publishing agreement can be summarised as follows:

  1. Publishers may and should invest in the writer’s career. In particular, publishers may be a supply of vital funding for a writer’s career, particularly at the beginning of such career. “Production Music Libraries” (publishers that provide non-exclusive licences for varieties of “mood” music to film and video producers) often take this route. But like record labels, publishers will recoup any advances paid to the writer from royalties. In general, publishers will put their own money at risk in this way, albeit with some form of return on their investment if (and only if) the writer is successful. Most publishing agreements with new composers these days do not provide for advances;
  2. Publishers should try to nurture and develop the writer’s talent. Not all publishers take this “creative” role, but the better ones do;
  3. Above all, publishers should be “connected” in the industry. They should know the A&R departments at all major and independent labels, they should be alert to which film producers, broadcasters and advertisers require music soundtracks and they should also be in a position to link the songwriter to other industry players in other ways. Their most important function, therefore, is to know what music is required, and where, in the industry, and have their composers’ music used there;
  4. Naturally, it is in the publisher’s interests that the writer’s music appears on recordings (still the biggest source of commercial mechanical royalties other than broadcast.) Importantly, therefore, the publisher will attempt to offer assistance in securing a recording a contract for the writer if he/she does not have one, and may even see to the release of some independent records on the writer’s behalf (ie cross the composer over into the world of recording where the composer is not a performer); In some cases, publishers may make money available for tour support, equipment , demos, independent promotion or marketing;
  5. Publishers will collect the writer’s earnings and royalties and assist in the negotiation of fees for licensing rights in the songs; Publishers should, as an ongoing daily practice, be ‘song-plugging’, ie encouraging the exploitation of the writer’s songs, including cover recordings, synchronization, public performance, use on compilations etc;
  6. Publishers should at all times handle the tracking, administration, calculation and recovery of royalties payable (remembering, however, that SAMRO will pay the publisher his share and the writer his, directly, once the publishing agreement has been registered at SAMRO. This is to ensure that any unscrupulous publisher does not deprive the composer of his/her share);
  7. In general, a publisher who has made an investment in the writer (by paying possibly significant advances) will want to recoup his investment by encouraging the exploitation of the songs. Clearly, the publisher has a vested interest in ensuring that the writer is successful, because only then will the publisher earn money from the writer’s songs, by way of his percentage of the mechanical, performance and synchronization royalties.

It is vital, when negotiating your publishing contract, to have the future in mind. Some composers are happy to be signed to a publisher for the rest of their days, but many reach a point of success in their careers where they simply do not need the publisher any more. This is because they are well-known enough to open doors for their music themselves, they understand the business well enough to handle their own royalty collection, and they require no further creative input. Many successfully composers have left their publishers at the end of their contract cycle and opened their own publishing houses in the latter parts of their careers, simply because it makes financial sense to do so at that point. Such composers might, at this juncture in their careers, be sorry that they have signed their previous compositions away in perpetuity, because they can never acquire those copyrights back unless they purchase them. For a young composer with such a future in his/her sights, it would be better to assign the copyrights for a limited rights period only. Regardless, the publisher’s role in getting such composers to this point of independence and success should not be discounted.

If you are a songwriter, I hope this brief and basic outline has been of some use to you. For more detailed information, courses in this topic are available, and I encourage you to acquire detailed knowledge of this topic whether you are signed to a publisher or not. Music is a business.

 

 

 

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