Music Publishing Agreements – Introduction
One of the ways to get your music catalogue and future compositions onto screens (TV series, movies, advertisements and games) is through a direct relationship to the relevant music supervisor or film/TV producer.
Another way is by working with a music publishing company whose services include seeking music placement opportunities for you – opportunities to place your music into series, films, etc. There are different types of publishing arrangements, and therefore different types of publishing agreements.
Music publishers generally work one-on-one with their artists to develop a strategy for getting the right kind of placements for the right kind of fees (as much as possible).
In a co-publishing agreement, one of the ways publishers are generally compensated is by being assigned 50% of the copyright of the relevant musical works, which means that the writer and publisher share (a) the up front funds received from song placements with respect to the synchronization rights (which is generally 50% of the up front fees with the other 50% going towards the master use rights controlled by whoever owns the master) and (b) the publisher’s share of performance rights royalties (which is usually 50% of the fees provided by SOCAN with the other 50% going towards the writer’s share).
If a singer/songwriter co-wrote a song with another writer, and the singer/songwriter alone is signing a co-publishing agreement with a publisher, the publisher will generally receive 50% of the singer/songwriter’s rights – not 50% of the entire composition.
There are single song co-publishing (aka co-pub) agreements, co-pub agreements for specific recordings / albums, and co-pub agreements for periods of time (for example for a period of now until 3 years from now). The amount of content subject to the deal varies based on the parties involved. The less of a commitment you provide to the publisher from the outset, the easier it is to test out the publisher before making a significant commitment. However, if you get an offer you can’t refuse to jump into a relationship with a publisher for a significant portion of your library and future material, it may be difficult to say no. What’s important is to understand what you’re being asked to give up.
Once you have received a formal offer from a publisher, or earlier, do your due diligence on the music publisher, including by researching their roster of artists. Also, ask what they think they can do with your music from a publishing perspective.
If you’re interested in having the publisher focus on opportunities for other musicians to sing your songs, and place your existing work performed by you on screen, ensure that your publishing partner focuses on these different publishing functions, and has the experience and networks you can trust.
It may be very exciting to receive an offer from a publishing company, especially if they represent other artists you admire. However, just like any music agreement, there are many details and factors to consider.
Music Publishing Agreements – Advance
One element to consider is how much money, if any, the publisher is providing up front in cash to you, against future revenue. If the publisher is confident that they can obtain high value placement opportunities for you, one way to test that confidence is seeking an advance, or asking for a higher advance. The advance is not owed back to the publisher if no money is generated, however, the advance is recouped by the publisher before they pay you. As such, if the advance is $5,000, the publisher generates sales in which the singer/songwriter is to earn $6,000, then the publisher keeps $5,000 to reimburse their advance, and pays the singer/songwriter $1,000. The next time the singer/songwriter is to receive money from the publisher, there won’t be any further advance-related deductions.
Amount of Music
As alluded to above, the amount of music being covered in the deal is a very important consideration. Perhaps you have a large library, but only want the publisher to have publishing rights to a certain number of songs and not the rest. If you want your arrangement set up this way, ask for the agreement to reflect your needs.
What rights do you have, if any, with respect to placement decisions? If you want to ensure that your music isn’t placed in ads related to meat because you’re a vegetarian, this is the time when you have leverage / clout with the publisher, to make your wishes known. Ensuring you must pre-approve having your music placed in political or religious content is a common and reasonable request.
If the compensation formula involves the publisher reimbursing itself before funds from publishing sales are divided between you and the publisher, it’s important to consider your approval rights and the publisher’s limitations, related to the publisher’s expenses. This should increase the likelihood that you get paid when your music is used. What a concept!?
What happens, if after all the publisher’s good intentions, nothing happens? Plan ahead by giving yourself a way to protect yourself and music if needed down the line.
It’s also important to check the agreement to see how long it will take you to get paid, after the publisher receives money on your behalf, and what you can do (your “remedies”) if you aren’t paid on time or sufficiently.
A related partner is a publisher administrator who helps to ensure you’re paid appropriately from publishing opportunities, ideally around the globe. Some do help find placement opportunities, but that’s not their main purpose. They are not given ownership in the copyright of the music, but take a fee for their important role in the form of a percentage of music publishing funds generated and received. A publishing partner generally provides what the publishing administrator provides, and also seeks placement opportunities in a much more proactive way.
Music Publishing Agreements – Conclusion
While a few concepts and considerations from publishing agreements have been highlighted, as you can tell from the page count on some of these agreements, there’s a lot to digest!
For more on music administration, here’s our blog on that topic: https://edwardslaw.ca/music-rights-administration/
For more on music in advertising, here’s our blog on that topic: https://edwardslaw.ca/musician-business-music-ads/
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit www.edwardslaw.ca
Regarding music law, Byron Pascoe works with musicians and music companies to assist with record label agreements, publishing contracts, distribution deals, producer agreements, band agreements, etc.
© 2021 Edwards Creative Law
* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.