term "publishing", most simply, means the business of
copyrights. As a songwriter you own 100% of your song copyright
and all the related publishing rights until you sign those rights
Under the law, copyright (literally, the right to make and
sell copies) automatically vests in the creator the moment the
expression of an idea is "fixed in a tangible medium"
(In other words, the moment you write it down or record it on
tape). With respect to music, there are really two copyrights:
a copyright in the musical composition owned by the songwriter
and a sound recording copyright in the sound of the recording
owned by the recording artist (but usually transferred to the
record company when a record deal is signed).
own the copyright in your work the moment you write it down or
record it, and you can only transfer those rights by signing a
written agreement to transfer them. Therefore, you must be wary
of any agreement you are asked to sign. Although it is not necessary,
it is advisable to place a notice of your copyright on all copies
of the work. This consists of the symbol "c" or the
word "copyright", the author's name, and the year in
which the work was created, for example: " (c) John Doe 1993."
filing of a copyright registration form in Washington D.C. gives
you additional protection in so far is it establishes a record
of the existence of such copyright and gives you the presumption
of validity in the event of a lawsuit. Registration also allows
for lawsuits to be commenced in Federal court and, under Federal
law, allows an award of attorneys fees to the prevailing party.
Currently, the filing fee is only $30. To order forms and for
additional information on copyright registration call (202) 707-9100.
defined by the copyright law, the word "publish" most
simply means "distribution of copies of a work to the public
by sale or other transfer of ownership, or by rental lease, or
lending". As a practical matter, music publishing consists
primarily of all administrative duties, exploitation of copyrights,
and collection of monies generated from the exploitation of those
copyrights. If you make a publishing deal and a publisher takes
on these responsibilities then it "administers" the
compositions. Administrative duties range from filing all the
necessary registrations (i.e., copyright forms) to answering inquiries
regarding the musical compositions.
of the most important functions of music publishers is exploitation
of a composition or "plugging" a song. Exploitation
simply means seeking out different uses for musical compositions.
Music publishers have professional quality demos prepared and
send them to artists and producers to try to secure recordings.
They also use these tapes to secure usage in the television, film
and advertising industries.
Equally important as exploitation is the collection of monies
earned by these musical usages. There are two primary sources
of income for a music publisher: earnings that come from record
sales (i.e., mechanical royalties) and revenues that come from
broadcast performances (i.e., performance royalties). Mechanical
royalties are collected directly from the record companies and
paid to the publisher. Performance royalties are collected by
performing rights organizations - ASCAP, BMI, and SESAC - and
then distributed proportionably to the publisher and to the songwriter.
In addition to plugging and administrative functions, it is also
important to know that there is a creative side to music publishing.
Since producing hit songs is in the best interest of both the
writer and the publisher, good music publishers have whole departments
devoted to helping writers growing and develop. The creative staff
finds and signs new writers, works with them to improve their
songs, pairs them up creatively with co-writers and hopes the
outcome will be hit records.
you decide to do a publishing deal then the main issue for negotiation
is going to be the language pertaining to the calculation and
division of the monies. In the old days, most deals were 50/50
because there was a concept that the "writer's share"
was 50% and the "publisher's share" was 50%. This, of
course, was an invention of the publishers. Legally, these terms
have no such inherent meaning but their calculation is defined
in each individual agreement. Most modern publishing deals, however,
are referred to as "co-publishing" deals and the monies
are usually calculated at around 75/25 meaning the writer gets
100% of the 50% writer's share and 50% of the publisher's 50%
share for a total of 75%. It is best for the writer to insist
that all calculations be made "at source" so that there
are not too many charges and fees deducted off the top before
the 75% calculation is made. fees additional. Keep in mind, however,
that the advance paid to the writer by the publisher is later
recouped by the publisher out of the writer's share of income
from the song. So, the net business effect is that the publisher
pays the writer with the writer's own money to buy a share of
the copyright (and the right to future income) from the writer.
a writer can be his own publisher and retain 100% of the money,
the larger publishers in the music business usually pay substantial
advance payments to writers in order to induce them to sign a
portion of their publishing rights to the publisher - and this
can be a good thing for the writer. Although a deal for a single
song may be done with little or no advance payment (provided there
is a reversion of the song to the writer if no recording is released
within a year or two), there should be a substantial advance paid
($5,000-$25,000+) to a writer for any publishing deal with a longer
term (e.g., 3-5 years).
deals have to do with more than just the money though. Since every
music publisher is different, it is important for the songwriter
to assess both the business and the creative sides of a music
publisher before signing a deal.
Wallace Collins is an entertainment lawyer with the New York
law firm of Serling Rooks & Ferrara, LLP. He was a recording
artist for Epic Records before attending Fordham Law School. Contact: