SONGWRITER AND MUSIC PUBLISHER AGREEMENTS

A Relationship Necessary For Success

By: Todd Brabec & Jeff Brabec

The world of music begins with creative effort – the song. What happens next with that song is the business of music. Many times the first contact that a songwriter has with this business side of music is through dealings with a music publisher. This relationship can be one of the most important ones a songwriter will ever enter into as the role of the music publisher is to exploit the song (get artists to record it; get the song placed in motion pictures, television series, videogames, advertising commercials, ringtones and ringbacks, dolls and toys, musical greeting cards, etc.); to negotiate the deals with all of those who want to use the song (film and TV producers, advertising agencies, videogame companies, etc.); to protect the song (copyright the song, sue infringers, register the song with ASCAP, Harry Fox Agency, foreign country collection societies, etc.); and to collect all of the song's earnings from all sources (with the exception of the writer's share of performance monies) and pay the songwriter his or her share according to the songwriter/music publisher contract.

Types of Songwriter / Music Publisher Agreements

There are 6 basic types of agreements that songwriters sign with a music publisher. They are the Individual Song Agreement, the Exclusive Songwriter's Agreement, the Co-Publishing Agreement, the Participation Agreement, the Administration Agreement and the Foreign Sub-Publishing Agreement. Additional agreements include the Songwriter/Performer Development deal as well as Joint Venture and Co-Venture deals.

Individual Song And Exclusive Songwriter Agreements: The most common songwriter-publisher agreements are the individual song agreement and the exclusive agreement.

Under the individual song agreement, a writer transfers the copyright to one composition or a selected number of identified compositions to a publisher and, in return, receives a portion of the income earned from uses of that composition or compositions. Because the individual song contract applies only to the song or songs specifically mentioned in the agreement, the writer can go to a number of different publishers with other songs and give each one only those songs that it is really interested in promoting.

Under the exclusive agreement, the songwriter agrees to assign all compositions written during a specified term (for example, 2 years from January 1 or 1 year with four options), with the guarantee of a share of the income generated and usually a proviso for weekly or monthly payments. All weekly or monthly payments made to the writer are treated as advances, recoupable from the future royalties of the writer. For example, if a writer is being paid $600 per week in advances, $31,200 will have been advanced in the first contract year. These monies will be deducted from any royalties that become due from record sales, downloads, sheet music, commercials, home video, television and motion picture synchronization fees, as well as from any other source of income that the publisher controls.

One of the values of such an exclusive relationship with a publisher is that the writer is guaranteed a steady income, much like a salary, to meet the normal, day-to-day financial needs and living expenses while pursuing a career. In addition, since monies from record sales and performances take from 7 months to more than 2 years to reach the writer, the weekly or monthly advance payments (sometimes referred to as a "writer's draw") can lend a great deal of financial and emotional security while the writer is waiting for royalties to be collected and processed.

Co-Publishing And Participation Agreements: Many writers are able to negotiate co-publishing or participation agreements with their music publishers. Under the co-publishing agreement, the songwriter co-owns the copyright in his or her songs (usually through a wholly owned company) and receives a portion of the publisher's share of income (usually 50%) in addition to the songwriter's share. Under the participation agreement, the writer shares in the publisher's income similar to the co-publishing arrangement but does not become a co-owner of the copyright.

Publishers also receive rights in compositions through the following types of agreements. None of these actually transfers copyright ownership; instead, they transfer the rights to control and administer the compositions for a specified period of time.

Administration Agreements: Under an administration agreement, the publisher receives the right to administer a composition or group of compositions (i.e., licensing the use of songs in recordings, tapes, CDs, television series, motion pictures, DVDs, commercials and video productions and collect royalties from all music users) for a specified period of time (e.g., 3 years, 5 years, etc.). In return for its services, the publisher usually receives an "administration fee" of from 10% to 25% of all income earned during the term of the agreement.

Foreign Subpublishing Agreements: The foreign subpublishing agreement is similar to an administration agreement. The only difference is that the publisher is contracting with another publisher in a foreign country to represent its catalogue in that territory. For example, if a U.S. publisher wants to have a publisher in England represent its catalog in the United Kingdom, or if a publisher in France wants its catalog represented in the United States by an American publisher, the agreement is referred to as a subpublishing agreement. As with the administration agreement, representation is limited to a specified duration (usually not less than 3 years), and the fees retained by the foreign subpublisher for its services are negotiable within certain limits.

Contracts / Legal Advice: It's important to bear in mind that all of these agreements are contracts which bind the parties to whatever has been negotiated by the parties. Experienced legal advice is always essential when dealing in the world of contracts.

Summary: This article is intended to give the songwriter and music publisher a summary of the basic rights, obligations, structure, duties and scope of the 6 most common agreements that create the bond between a songwriter and his or her music publisher. If a music publisher is interested in one, many or all of your songs, you will have to deal with at least one, and most likely more than one, of these agreements.

Future Articles: In upcoming editions, we will be going into the details and meanings of these songwriter/music publisher agreements in addition to the many sources of songwriter and music publisher income emanating from these agreements (film and TV licensing, the licensing of songs in videogames, what the deal looks like for a song in an advertising commercial, how much do I get from a song used in a doll, toy or toothbrush, etc.). We will also be discussing many of the issues and challenges facing songwriters, composers and music publishers in the physical product and online digital music worlds as well as things that you can do to improve your changes of succeeding in music.

To quote the first paragraph of the Introduction to our book Music, Money and Success: The Insider's Guide To Making Money In The Music Business, "In today's world of constant technological changes and innovations, shifting income streams, global concentration of the record and music publishing businesses, the importance of social networking sites and the changing distribution of music models, it is more important than ever that the songwriter, composer, music publisher, recording artist and record company have the practical, business and legal knowledge necessary to succeed and exist in the music business." Simply put, knowledge of how this business works is essential to making a living in music and achieving success.

© 2008 Todd Brabec, Jeff Brabec

Todd Brabec is Executive Vice President/Membership Group for ASCAP and Jeff Brabec is Vice President of Business Affairs for the Chrysalis Music Group. They are the authors of the book Music Money And Success: The Insiders Guide To Making Money In The Music Business (Schirmer Trade Books/Music Sales/6 th Edition/505 pgs.) and are Adjunct Associate Professors at the USC Thornton School of Music where they teach the course on the business of music publishing, motion pictures, television, new media and recording.