Part 3 of our Artist Development Series.
The primary objective of this series is to illustrate the importance and functionality of the artist development team. It provides context and reliable information on how to leverage and optimize the benefits of working with a team of knowledgeable and experienced music industry professionals.
This installment focuses on the role of the music publisher as a member of the artist development team.
It also touches on the relationship between songwriters and music publishers. The publisher’s role depends on whether or not the artist or group writes the music that they will record. Hit songs are the vehicle to which successful careers are hitched. Powerful, commercially viable songs are mandatory if you want to win big in the music industry.
The Songwriter’s Relationship to Music Publishers
Songwriting can be a collaborative effort, with two or more people contributing words and music to a composition. In the majority of writing situations, no matter the number of collaborators or their actual contribution, each share in copyright ownership. According to the Library of Congress Copyright Office, a composition with two or more writers is defined as a “joint work” composed by “joint owners.”
The ownership of a song is documented on a “split sheet.” Simply put, the sheet lists the writers of the song and how much of the song is owned by each writer. It also tells what each individual contributed; music and/or lyrics. Regardless of the number of writers, all songs have just one copyright which protects the entire composition. All composers, regardless of their contribution, share proportionally in an “undivided” copyright or ownership of a song. Think of a copyright as a deed to a house. There is only one deed but there can be many owners listed on that deed. The amount of ownership is based upon what each contributes.
Composer contributions are not always equal. Some writers provide just music or just lyrics. Some contribute both. Some writers contribute more of one than the other. To ensure success and more importantly to avoid legal controversy, everyone must agree to the specific ownership of the song.
Verbal agreements rarely work. It is standard industry practice to document writer participation with a Songwriting or Collaboration Agreement that defines ownership. Written documents tend to keep people honest, so don’t shy away from them. Songwriting shit happens, and a collaboration agreement will save you a lot of grief. It will jog memories and keep things moving towards success as opposed to lawsuits where only the attorneys are making money.
This is a crazy business and sometimes people lose their minds when the smell of success, fame and money are in the air. Sometimes outsiders instigate dissent and shatter a good working relationship in the hopes of capitalizing on or manipulating a situation. Sometimes it is just a case of misinformation or confusion. Deal points must be clear and concise. Contracts keep people grounded in reality. Paper everything you do as an artist, composer, performer and musician.
Songwriters and Band Members
In the event one of the collaborating songwriters is a member of a band and the other co-writers are not, the band member will have the authority to use the song in live concerts and to record the song for release or other uses. While, technically, it is best to have all writers approve and issue a combined use license, e.g., a mechanical license to reproduce the song, each co-writer has the authority to do so, but must account to their co-writers who are not band members. Most record labels will want to get both co-writers and co-publishers to provide written authorization for the initial reproduction of that song.
Transfer of Copyright
Each composer, without the approval of any co-writers, can transfer their copyright ownership to another party, usually a publisher. It can be for the entire percentage of that co-writer’s share, or just a part of it. In addition, a co-writer can shift administration and supervision rights of that share to a third party such as the publishing administrator, while still retaining ownership of the copyright.
Each co-writer has the ability and right to transfer his or her copyright interests to a third party without it impacting the copyright ownership of the other co-writers.
Dividing and Conquering Songwriter Splits
Song collaborators can divide ownership in the songs in any way they want. If only two songwriters are involved and the contribution is equal, the split is usually 50/50. For three songwriters that each contribute the same amount, each gets 331/3% and so on. Sometimes lyrics and music are used to divide song ownership evenly with each component counting as 50% ownership of the song’s copyright. If more than one person contributes lyrics or music and the contribution is considered equal, that portion of the song is divided evenly. For example, if two people have written the music and it accounts for 50% of the song, then each would get 25% of the copyright. If four people write the music, each would receive 12 1⁄2 % of the copyright and so on and so on.
Self-Publishing – An Alternative
As a composer, you can also exploit compositions on your own and grant your own usage licenses. But administration and royalty collection are difficult, perhaps impossible for a self- published songwriter and best left to a knowledgeable business entity that is set up for the process.
It’s All About Licensing And Controlling The Rights – The Music Publisher
It is important to the success of any song that it be pitched, promoted, licensed, recorded and used in ways that will generate income. The primary objective of a professional songwriter is to monetize his or her works and hopefully make a good living as a composer or singer/songwriter. Great songs deserve to get out there with musical rights exploited for licensing and use. Music publishers work for and with songwriters to pitch, promote, license and control the copyrights of a catalogue of songs. They can represent one or a number of different composers at one time. A publishing company can be owned by the songwriter or different individuals, entities or organizations. Most major record labels own or are affiliated with a music publishing division that works hand and hand with the label to optimize the earning power of a composer and the songs in their catalogue.
The publishing process is complex and very often confusing. Music publishing is heavy with laws, rules, and formulas. There are many moving parts and each deal calls for tons of paperwork and record keeping. The process seems to work best when it is centralized, meaning that only one entity controls and exploits the rights to a song or catalogue of titles. The income generated by a song, the royalties, can come from many different sources. Each use must be monitored and accounted for so that royalties are collected and paid to the copyright owners. A song’s income is sometimes used to repay a publisher for the advance given to the songwriter at the time of signing. After the advance is recouped or repaid, the composer or composers would then begin to earn and receive their share of royalties.
What Publishers Do
The business of music is a lot more complex than people realize. Contrary to common belief, the business is not run by a bunch of crazy, ever-partying individuals. There are some serious business types involved in this business sector, especially on the music publishing side. These brainiacs are the ones that are making most of the money. They learn all the rules, the twists and turns, the variations on the theme, the contingencies to correct mistakes and how to navigate a winding road that is full of obstacles and hazards.
As always, knowledge is power. Get it. Own it. Use it.
Find a publishing expert that can explain the intricacies of the business.
As mentioned, more than one songwriter can be involved in the composition process, and each writer has the right to work with any music publisher they choose and that wants to work with them. In fact, it is not uncommon for the copyright of a song to be split amongst different publishers when more than one writer is involved. This means that end users who want to license a composition will need to secure the approval of multiple publishers before they can use the song. Legal documents, royalty statements and other information must go to each publisher. There is a monster amount of administrative paperwork, telephone calls, legal wrangling and accounting to deal with and that is why publishing companies are so important.
The services that publishers offer is known as copyright administration, and it is their primary function. The administration is usually centralized, with just one publisher doing the heavy lifting. Creating the administration system is a painstaking task; you must monitor all the uses of the song for its entire income producing life.
In a perfect world, it would be far simpler if only one company were to administer a copyright and earn a fee, over and above their publisher’s share of royalties, but the Music Industry is far from perfect and loves to break common sense rules and confuse the issue. That being said, and seemingly counter-intuitive to theory, many songwriters prefer that copyright administration responsibilities be shared among multiple publishing entities. The rationale is that control over licensing will be more stringent, that royalty rates will be higher, and that the expenses associated with song exploitation will be lower and shared by all the songwriters. The combined effort is said to maximize exposure, income and catalogue value.
In order to use a song for any type of project, whether it’s a film, a recording, a commercial or television show, permission must be granted, and a license must be issued by the song’s administrator or publisher. A license is not a transfer of copyright ownership, it merely grants the right to use the composition in a specific way. It requires the written permission of all copyright owners which could be the songwriters themselves and/or their publishers. An integral part of licensing is granting record labels the right to duplicate the composition as a download, compact disc, or other mediums that are sold to the public. This type of license is called a Mechanical License. Once a song has been released to the public, it can be used without permission from the publisher as long as the user is willing to pay a full royalty rate that is set by the copyright laws of the United States. This is called a Compulsory License which is non-exclusive. For a very successful hit song, hundreds of compulsory licenses are often issued through the Harry Fox Agency. If a user wants to pay less than the full royalty rate for a song that has already been released to the public, they would have to go to the publisher and negotiate a different rate and a special use license would have to be granted in place of a compulsory license.
Life of the Copyright
The copyright for any song written after January 1,1976 is valid and enforced by the copyright administrator or publisher for the life of the author plus 70 years. In the case of a joint work, the copyright lasts for the life of the last surviving author plus 70 years. After that time period elapses, the song is considered a “public domain” composition and is free to anyone who chooses to use it. There are also different methods that could extend the life of a copyright such as new musical arrangements and adaptations, but for all purposes the life of a copyright is finite and based upon the length of the composer’s life plus 70 years, after which royalty payments are waived for use.
Performing Rights Agencies
Music publishers do not collect royalties for airplay, live performance usage or sheet music sales. Composers and publishers must work with performing rights agencies such as ASCAP, BMI, SESAC, Sound Exchange and now Global Music to collect revenue from these income streams. Typically, the songwriter and/or the songwriter’s publishing company become members of a performing rights organization and enter into agreements with them. These agreements are usually exclusive.
Co-writers do not have to belong to the same performing rights agency. In that case, the share of the performance income is allocated to each writer or publisher’s performing rights agency. For example, if a song is performed as a part of a soundtrack to a television program, each performing rights group would collect its allocated share and then distribute it to the writer it is affiliated with. It is quite possible that one collaborator, being paid by a different performing rights agency, will not receive the same amount of income as a co-writer, since each of the performing rights agencies uses a different reporting and accounting mechanism.
So, choose your performing rights agency wisely.
In summary, music publishing accounts for a large portion of a professional’s income and is an integral part of artist development. The music publisher works very closely with all members of the artist development team. Your responsibility as an artist is to understand relationships and through that understanding, learn how to leverage them to your benefit.