Music Publishing deals and Publishing contracts

What is music publishing? And what does a publisher do?

These are questions that pop up in our heads when we hear about music publishing for the first time.

Music publishing is one of the earliest aspects of music business, it originates from the early days where music was distributed and sold on format of music sheets, previously to the existence of vinyl, tape, compact disc, mp3, pcm and digital. Music publishing was similar to the book publishing “per se”.

Etymology: Publishing - from Latin "publicationem". In the mid 15th century " act of announcing, declaring or issuing copies of a book to the public".

Today music publishers deal with administration and rights of songs (lyrics, composition, arrangements, music sheets) and royalties. They will help the songwriter or a co-writer to register will the relevant collection societies (PRS, PPL and MCPS), help with the administration work, exploit as possible the rights of the songs and collect the royalties due and pay the songwriter or co-writers their correspondent share. They give the author the opportunity of having they music licensed, used on a great variety of ways (covers, synch, radio, streaming, toys) and used on many other ways and in many other countries specially if the genre is mainstream.

Music: In music the first 3 seconds are crucial to generate interest, engagement and a recognisable print in the audience limbic brain (responsible for managing emotions and memory). Music phrases, extructure, patterns, cicles, colours, depths, picks, hooks, scales, modes and etc, are part of the composition building blocks. These are expressions for the music and vocal construct that will help define, identify, quantify and rearrange in detail specific musical parts.

From a legal point of view, music is a combination of lyrics (words) and Melody (the accompaniment sound). Changes on words or melody by a third person (songwriter, producer or a friend) may entitle them a share of the royalties 1/3.

Lyrics are music, song writing it is musical, but also it is guidance and narrative to navigate a history-telling, express emotions and feelings, express ideals and believes or maybe to create and share interesting (love) or controversial (political) musical experience or other.

Genre: Mainstream music genre is easy to find places for distribution and reach the audience almost everywhere, if the genre is limited to" niche" (Jazz, Country, Salsa) it will be hard to place on the mainstream media. When composing or writing a song we must consider the power and the influence of publishing, consider that the music is not only to express feelings, not only for pleasure, not only for the audience, not only for the radio, not only for TV, and this will help the song writing to have much more depth, much more use and to be atemporal.

Arrangements: The way the music is structured (intro, outro, verse, chorus, drop, lift, break, depression, compression, explosion, etc) and the way instruments correlate and interact with each other (call, answer, question, response, following up, echoing, cacophony, etc) and mould and shape the finished desired product, the music.

The publisher will register, licence and exploit the music and the song writing rights commercially and in many ways as possible in order to extend its use. He can collect funds world-wide with the help of co-publishers who are representing legally the artist or the original publisher. They will have the songs used by other artists (covers), tv films, movies, adverts, games (synch), radio shows, streaming and etc.

There is a great book that I recommend every musician to read “Music - The business” by Ann Harrison. The 7th edition of this book has actualised music business development on synchronisation and music streaming. 379 pages with essential information and tips on music law, record deals and much more.

Publishing is the act of leveraging and exploiting commercially the music of composers and songwriters. The publisher will create the appropriate registers and copyrights, have the songs used on creative/commercials ways and get all the royalties generated. Their task is laborious mostly based on paper work administration and entangle connections with a widespread of music business personalities and professionals.

Publishing contracts:

Music Publishing it is an highly administrative work that requires focus, passion for paper work, organisation, planing and basic knowledge on music law. This work can be overwhelming and daunting for musicians with no experience on the field. Thankfully we can get full support from organisations like the MU (The Musicians Union) who can help review the review the contract terms for all affiliated musicians. https://musiciansunion.org.uk

Acts of parliament or legislations are subject to constant changes and these should be revised on a periodic basis. A lawyer would always be actualised on these terms and give the correct advices and contact you back with the latest changes when these are affecting, prices, performances and new legal requirements and guide lines.

There are mainly 3 important variables that will constitute a publishing contract; the ownership (who owns the rights and/or what % of it), the extent (who has what rights to - collect money, issue licenses, for what length of time) and the money (advances, costs, fees, royalties, splits, etc.)

Ownership: Agreements must clearly state what is the been agreed upon, the range or extension of that agreement indicating the limitations and boundaries, what music pieces are involved, what are the rights traded and the contractual duties/delivery of the writer. The writer interest is to sign for no more than 3 years, and keeping control of the moral rights.

The extent - This is regarding the term, territory, period of ownership and how wide trust or permissions to trade are defined or given considering the self-interest of publisher and writer independently. Defining the extension of each of these points it is extremely important because it can derive royalties from your recipient.

Rights: Music publishers want to control, own or license the rights of the songs for a long period as possible. They deal with registration and administration of rights and royalties on a limited or vast territory and for a long term if possible. Broader the territory and longer the term more they will benefit of the rights they control. They may want to negotiate also with the autor moral rights for commercial purposes.

Other important aspects of a publishing contract:

Territory: Publisher and artist must define the territory for the synch deal. This will determine the territory and the market extension limits to apply. The artist may not want is music to be used on certain countries maybe because the genre is not popular or maybe want to exploit that country differently if he is not subject to an exclusive contact. The Publisher would want to control the maximum of the territory as possible (world-wide) in order to make more profitable the license, and get sub-publishers on board covering as much of the territory as possible.

The artist also is interested on maximising is royalties exploring all venues and incoming streams. Not as least, the artist must t be conscientious that after lockdowns we will still need to deal with the issue of BREXIT regarding performances, touring, visas and new tax impositions that will require higher administration services and expenses.

If the territory for distribution and publishing is worldwide, the artist will have interest on asking for "royalties at source", this meaning, that the value of the negotiated percentage would be the same anywhere around the world, avoiding loss of royalties between the co-publisher's administration worldwide. (No reduction for oversea payments)

Term: The duration of a contract may vary from 1 year, up to the life span of the copyright, let's say, 70 years after the last member of the band have decease (very amorphous). And the artist or writer interest is to sign for a short period in order to keep control over the rights. These are extremely important considerations to review and negotiate before the signature of a contract.

The term can also be linked with a specific number of songs to be delivered, or a number of songs written exclusively by the writer (100%) where, any co written song would no be taken in to account.

The writer interest regarding the Term, is to make sure that "The Term" is defined as a calendar period in order to better manage this clause. when the term is completed a cascade of rights revision should start to take place.

Minimum commitment: This is agreed to ensure or secure engagement (release vs recuperation of investment) and avoid possible breaches of the contract at its early stage. An artist can contract a minimum service from a publisher, or manager, and vice versa, a publisher or manger can contract a minimum engagement with a songwriter where when this is not respected, a clause of the contract (Minimum commitment) would be used for legal peruse against the other party for breach of contract, forced termination and possibly for income loses.

Retention Period

On the contract usually, there is a starting date, a term date (end) but also is important to set the retention period, example: (1 year term + 3 years retention)

During the term, the publisher will be actively working with the author, songwriters, managers and find ways to exploit all the rights of the compositions, song writing, printed music and collect royalties.

He (the publisher), may find ways to make other artist to do covers of your song, find synchronisation opportunities on film, series, movies, internet content, and games. The publisher will try having sync deals with Netflix, Amazon, Apple, Disney and other emerging channels and social media platforms like YouTube, Tik-Tok or the most used by the youngsters.

In our current times, "due to lockdown" there is a substantial growth on movie streaming, gaming and increase on Latin music genre, but UK is at the head of music creation and distribution in Europe, meaning that publishing opportunities are vast.

It may happen, like in the case of the Film "Baby Driver" (2017), where the script was settled around a playlist and the music was the most important element in this case. This is an example of a publishing success. Just like "Treme" a New Orleans based drama or the mythical "Fame" (1980), music was the central focus of everything else.

Another example: A song placed on "Love island" (a popular show) can create a hit or Shazam interest and cascade on subsequent streaming and popularity.

https://www.bbc.co.uk/news/entertainment-arts-53078839

Moral Rights: Everything can be negotiated and so Moral rights

Right of paternity or attribution allowing the author who is the original creator of the work piece to claim paternity and publish the work on his name, using a pseudo name or anonymously.

Right of false attribution meaning to be protected of false ownership and false attribution of a particular piece of art that could potentially damage the artist reputation and consequently cause economic loses.

Right of integrity, to protect the work piece from modification, transformation or deformation and avoid a misrepresentation and misuse out of its initial purposes.

Right of privacy, to safeguard from non-authorised eyes, maintain privacy or have it exploited by a specific person or company for a very specific purpose and not disclose.

All these rights can be negotiated, licensed or attributed but never to a 100% extent. The original author will always have his moral rights protected.

With the rise of innovation and technology, 5G satellites will be able to transmit music our of our planetary sphere towards the cosmos. Maybe new laws will fallow suit due to the possibility to transmit music to the space stations, satellites moon and other planets giving place to extraterrestrial rights. If our publishers are forward thinking they will have this done very soon.

Royalties: The publisher income streams are: Performing rights, mechanical income, synchronisation and print rights.

All royalties are negotiable.

Advances: A major publisher may offer an important royalty advance to the songwriter signing an exclusive agreement. The higher the advance (the dream of any songwriter), the longer the term of the contract and smaller the mechanical royalty the artist will perceive. The artist mechanical royalty may be 75/25%. When there are not advances, the artist's mechanical and performance's rights should be much higher.

Performance royalties.... 50/50%

Payable directly to writers unless contradicted by contract.

If your song is played in the net, on a gig, on the radio or tv, in retail units or to the public.

Venues like radio and clubs pay a Blanket License to PRS in order to play all songs.

Mechanical.................... 75% (80 to 95% if no advance)

Paid for the right to reproduce the author's work, per unit sold or streamed with a written song.

Played, streamed or download. (Collected by MCPS)

Covers.......................... 70-60%

Synchs......................... 70%

Higher rate if the publisher have secure these on the contract and litle less for the songwriter.

Prints........................... 10%

Others.......................... 75%

Digital and streaming royalties............. 80% from streaming usually goes to the master rights owner to be distributed by the record label or digital distributor. 20% is usually the publisher income and is split again into performance royalty and mechanical royalty. 30% goes to DSPs (Digital Streaming Platforms). And is usually 50/50 basis (10% remaining from MCPS and 10% PRS goes the artist). The artist, keeping control over the copyrights, will benefit him on the long term.

Other income streams to consider.

Broadcasting and re-broadcasting live shows. 75% PRS.

The use of internet by promoters, using it for streaming combined with live shows, touring and festivals.

Downloads; 75%MCPS - 25% PRS

Streaming: 50%- 50%

Musical cards. If a song is very popular, it may be used in toys, celebration cards and other articles. This also requires a MCPS license.

Ring tones for mobile phones and other devices, equally requires a MCPS license.

Music sheet also represents an income stream. 10 - 15% of the retail price is payed to the song writer.

https://www.bemuso.com/musicdiy/gettingstartedwithdiymusic.html

Moneywise, the author should be able to track is own account encompassing advances, royalties split, administration costs, and etc. and once or twice a year request for audit and have more control over the money transactions in order to avoid unpleasant surprises. When signing a contract, whenever possible, referring to a list of where from to collect money, would be good to make a similar following statement trying to tie loose ends: ...and all the monies not referred to by this contract.

If you ever do not want your music to be used on adverts or political rallies, it is important to make it clear, have it written on a contract in order to keep the control over your moral rights and principles.

Important to remember that the copyright last for 70 years after the author death, and 70 years after the death of the last co-writer.

(*) At source (No reduction for oversea payments)

Publishing deals

Administration publisher or Administration Agreement - Usually this type of publisher is a small company run by an individual who provide administration services helping the artist to register with the collection societies, help with the copyright protection, licensing and collecting royalties in a specific territory . The independent songwriter/publisher, self-release and license the songs to a music publisher for a contractual term and an agreed split of the royalties or a fixed fee. The exploitation work typically involves accountancy, desk research, communication with the collection societies and other organisations. Popular independent authors use this admin deals frequently. This publisher do not provide creative services, don’t provide economic advances and do not work overseas. The royalties % for the publisher usually is from 10 to 20% in the territory and agreed term.

Collection Agreement - Quite similar to Administration Agreement, the writer preserve his copyrights, and the publisher only do administration work mainly collection and distributing royalties assigned by contract. The royalties for the publisher in this case is lower than 10%.

Independent publishers - (such as Kobalt) they do all the administration services, register, licensing, monitor music usage and the royalty collection. They also pay advances to songwriters and offer creative services. Their clients are established artists, talented songwriters and mid-level producers. They would take a share of the rights of the work they negotiate with or own the rights and pay the artist a contractual share.

Major publishers - They work with major labels like Sony, Universal and Warner. These publishers may pay a very substantial amount of money with their publishing deals in order to maintain their share. They will give money in hand to the songwriters in order to incentivise them to be more productive and creative. The biggest the advance will be the greater will be the reduction of the percentage of the writer share.

Exclusive song writing agreement: - The publisher wants you to sign an exclusive agreement where he will be gaining control or ownership over the rights of all compositions and song writing, from before and during the contractual term (termination). The shortest term music are licensed (3 years), it may benefit most the artist, and the longest (10 years), it may benefit the publisher the most. In any of the cases, each one should express his own particular interest in order to create the best win-win association possible, that benefits both parties.

This type of agreement ties the writer to work exclusively with and only one publisher, for a defined period of time, under agreed conditions, a certain number of songs and a defined territory. The authors, usually, under this type of agreements, receive a lump sum or several payments with the signing of the contract. The writer or author need to negotiate the advances, payment methods and royalties percentage based on the success rate forecast. It will be of paramount importance for the author or writer to sharpen their negotiation skills and exploit their market value effectively. If a writer already have a hit in the market, it will boost the confidence of the publisher and guarantee that he will recover his investment and extend the exploitation of the work.

Career Development: Major publishers will help the promising/potential writer to develop his career. This will benefit the writer and the publishing company. In many cases the writer will co-write with other writers and artists.

Sub-publishing deal: If the territory that the publisher is working is world-wide, he will have a representative, or an affiliated company abroad. The publisher, in behalf of the author, will agree a new contract to a similar administration or collection society who will create the appropriate registers and copyrights in that territory, have the songs used on creative/commercials ways and get all the royalties generated. Their task is mostly based on paper work administration and connections with a widespread of music business personalities and companies, on several territories where they scan and monitor the copyrights in use, exploit the licenses and promote the work they represent. A sub-publisher would have a share of 10 to 20% of the royalties.

Single-song agreement: This is the most common publishing agreement for a songwriter. The writer will grant a specific number of songs to the publisher and must own 100% of the songwriting on first place (no co-writing collaboration). If the publisher thinks that a particular song has potential to be placed on an artist album, on a tv program, series, or film, he can take the deal and sign with the artist. The publisher and the songwriter can make a win-win agreement and proceed with registration of the artist with the collection societies, register the song, lyrics and etc. They would work out the contract, terms, conditions, retention, split, moral rights and conclude signing under the review of their respective lawyers. The publisher would pay a one-time recuperable advance to the writer. Except from printed music, 75%/25% of the MCPS and 25% from PRS, will be paid to the songwriter (PRS and MCPS pay 50% directly to the writer or author). This deal must not be confused with an exclusive agreement.

Synchronisation deal: This contact can be made to a publisher or a specialised synch company. This contract only covers trying to license music for synch and collecting money from that. Typically, there is a 50/50 royalty split between the songwriter and synch company, but this can vary on many aspects. (1)

Organisations like the Music Publishers Association (MPA) and the British Academy of Songwriter, Composers and Authors (BASCA) " Website: http://basca.org.uk/about-us/"

they can provide information and guidance about publishing.

Certainly, if you contact me (info@musiicrec.co.uk) I will provide more detailed information concerning any personal case.

About the song writers.

Song writers are not necessarily performing artists and they may have a completely different background from the music industry, but must have an intime relationship to art.

They can be:

• Poets

• Writers

• Journalists

• Painters

• Music amateurs

• Producers

• Etc.

Lately, in the media we have seen that the most popular songs are co-written by up to 9 songwriters, this guarantees a broader aspect of the creative process, vision and perception over a successful product co-created by successful artists. Example "Gallway Girl" by Ed Sheeran, Foy Vance, Johnny Mcdaid, Amy Wadge, Eamon Murray, Niamh Dunne, Liam Bradley, Damian Mckee and Sean Graham. Co-writers need to formally sign a split sheet, with the agreement of the song writing % for the correct and agreed royalty distribution. This will help avoid future conflict of interests.

Since Elvis Presley and at the start of the "booming" of the music industry, it was settled "By been in the room, change a word, take a third". Now a days, we have agreements, split sheets, music unions, musicologists and music lawyers.

Streaming is what generates most of the income in the music industry. Record labels are still making money with the performance royalties, mechanical rights and publishing deals but the artist is not doing so well at because after all, his income is usually from live shows, performances festivals, merchandising and signed contracts. Today an artist must be forward thinking, and he is required to have a constant flow of releases and updates on music business, music consumption and music distribution.

Sound recordings copyright is owned by the artist or who initially pays for the recording. The ownership may be transfer, sold or licensed to third parties. Most often it is owned by the record label.

The artist must put on the business-man hat and balance out with the creativity (right brain/left brain) and explore the logic and materialistic (without getting caught on it) business aspect of music creation, registration, administration, recording, marketing, release and distribution.

Some platforms like Bandcamp are supporting the artist offering record releases on vinyl.

"The new Bandcamp Vinyl Pressing Service streamlines the financing, production, and fulfillment of vinyl records. With no up-front investment, you can create a vinyl campaign and start taking orders almost immediately. Reach your goal, and we press your records and ship them to your fans".

(https://bandcamp.com/vinyl)

Also, worth to mention that new emerging companies are bringing new opportunities like for example "scruff of the neck" a very young and small music company, based in Manchester, winning an award in 2019. in 2020 they signed for a global music distribution with the company "Believe Digital" and now they are administrated by SONY.

"In May 2020, Goldman Sachs estimated the entire music industry’s revenue (live, recorded, and publishing) to increase from $62 billion in 2017 to $131 billion in 2030, representing a 6% CAGR. The 2030 estimate was an increase on its original prediction of $104 billion, made in October 2016.'" (https://www.toptal.com/finance/market-research)

Our society is shifting from mass consumption to mass creation in 2021, due to our political situation "Brexit" and world's "Coronavirus" situation. Most of the artist who manage to still survive under the "new normal", without their usual performances, shows and media appearances they are setting their own home-base-record-studios in order to keep writing and recording DIY, independently.

More opportunities for new emerging songwriters and artists. Since the vanishing of EMI (2012), there was a vast increase of artists self-releasing their own records. The platform to allow the artist to register as song writer, composer, session player, performing artist and self-release it is huge, solid, accessible and easy to use.

In our current times, "due to lockdown" there is a substantial growth on movies streaming, gaming and increase on Latin music genre, but UK is at the head of music creation and distribution in Europe, meaning that publishing opportunities are flourishing.

Song writers must rely on other song writers for inspiration and consider today’s music streaming technology, data, playlists and algorithms in order to ride the wave (PEST analysis).

The genre of the music (mainstream or niche) and how big or famous the artist or the band is, it will impact over the expectations, needs, services and demands from a publisher. He will be looking to have your song used by performers, producers, A&R representatives, DJs, and etc.

Mainstream genres like Hi-Hip, Pop and Rock are easy to place on the radio and almost everywhere, find co-writers, collaborators and etc.

We are all familiar with the word "co-writer", an artist usually known on the media, who participates in another artist song writing, but there is another word not familiar at all but also associated with the co-writing, this word is the Ghost-writer (a completely unknown co-writer) mentioned on the credits.

Other songwriters may have also other functions in the music business like for example, the Swedish Max Martin who is producer and songwriter. This will increase his share as a producer and his rights as a song writer. Simultaneously he is working on the recording, engineering, arrangement, instrumentation, beat construction, sequencing and also contributing to the creative process of the song writing.

Today, Max Martin is a reference and one of the most important song writers and producers in the world. In 2016 he had generated 51 Million Dollars. He co-produce and co-write with artists like Ed Sheeran, Justin Bieber, Lady Gaga, Katy Perry, Ariana Grande and many other popular artists.

A publisher will be pitching the song to advertising companies, radio shows, music supervisors working on the film industry, video game producers, internet video, web content, and so on.

Music today is a utility product, not a luxury any longer. The average music consumer is paying approx. £120 per year in streaming apps and services. In many cases the streaming platforms have deals with digital TV services, internet services and Mobile phones companies, integrating music streaming platforms with other services on a package, for a small fee that will increase slightly over a period of time.

In this guide "https://committees.parliament.uk/writtenevidence/16721/pdf/" , we can see the split of the music royalties are negotiated to fine tune to benefit the artist/author/creator who may find himself at the end of the chain of the royalty collection "basking".

UK music publishers.

(openmicuk.co.uk)

International:

Please, feel free to add, comment or share your views as read. This project is part of a Graded Unit on Music Business 2021.

About the author: Edgar Pereira, musician and music business student (HND2 @ Edinburgh College)

(1) https://www.horusmusic.global/how-publishing-works-contracts-and-rights-explained/