Entertainment Law and Media Law Services

A Songwriter/Publisher Contract defines the agreement between a songwriter and his music publisher. We are all familiar with what a songwriter is, but a music publisher may not be so thoroughly understood.

A music publisher is a business that secures the legal rights to musical compositions and exploits such rights with the intention of making a profit. Or, a person, called a "self-publisher," who engages in the same activity. As copyright proprietor, they administer the business and financial aspects of publishing that may include:

1) Registering (and renewing pre 1978) copyrights,

2) Securing licensing agents with regard to print licenses, mechanical licenses, compulsory licenses, purchase licenses, transcription licenses, synchronization licenses, and performance licenses, e.g., coming into contractual alliance with mechanical rights agents, performance rights societies, and with foreign publishers,

3) Coming up with the appropriate contracts to assign rights in copyright via licenses to music users, e.g., mechanical licenses, synchronization licenses and print licenses…and keeping records of any right transfers, assignments, or mortgages,

4) Obtaining record releases,

5) Collecting song incomes and royalties from licensed agents, e.g., royalties from publishing, performance, mechanical, print, synchronization, merchandising, etc.,

6) Auditing licensed agent representatives to insure they are paying proper royalties and deducting correct amounts for administrative service charges,

7) Accounting for royalties collected, e.g., to songwriters and co-publishers,

8) Reporting to the IRS on Form 1099-MISC certain royalties, independent contractor fees, salaries, commissions, interests, rents, pensions, medical assistance programs or health, accident, and sickness insurance programs, certain direct sales of consumer products for resale, and other compensations paid out. Each recipient is reported separately and the report must include the recipient's name, address, taxpayer identification number (social security number for sole proprietorships), and the total paid,

9) Paying the required employment and other taxes to the proper tax agencies, and

10) Distributing the proper royalty payments, accompanied by a royalty statement, to affiliated songwriters and co-publishers.

Some publishing deals only involve a music publisher handling a specified portion of the above listed overall responsibilities. For example, one limited deal is called an "administration deal." Here, only a limited supervision of the song catalog would be handled, e.g., copyright registration and financial accounting. While obtaining record releases would be handled by the songwriter/artist or label/production company. This often happens where the songwriter/artist owns his own production company and label.

A full-time top rated music publisher will receive up to 200 unsolicited songs each week. The publisher will also receive many other new songs from songwriters they deal with on a regular basis.

When a publisher accepts a song and a contract is signed, the song becomes a part of the publisher's catalog.

Further, a publisher is the one who effectuates the publication of a musical composition. Publication, according to copyright law is:

1) The distribution of copies or phonorecords (e.g., CDs and music video DVDs) of a work to the public. The distribution may be by sale or other transfer of ownership, or by rental, lease, or lending, or

2) The offering to distribute copies or phonorecords to a group of persons for the purpose of further distribution, public performance, or public display (however, a public performance or display of a work does not of itself constitute publication.)

Now that we understand who the parties are in a Songwriter/Publisher Contract, let us look at what is involved from the beginning.

At the start, all terms of a contract are negotiable. Although it is possible for a novice songwriter to acquire a "fair" contract from an "honest" publisher with his first signing--it does not always happen. Even honest publishers are going to first look out for themselves and negotiate a deal that is not detrimental, or potentially detrimental, to themselves. The dishonest ones, however, look out only for themselves.

So, the depth of the contractee's music business experience is important. Past experience helps in negotiating fair contracts. Further, it is predominately a contractee's past track record that will establish his bargaining power. For these reasons the operation of contract bargaining between songwriters and publishers varies greatly.

Here then, are two points of major concern:

1) Bargaining power, and

2) The contents of the final considerations of the agreement.

Attempts at exercising bargaining power may become apparent at the outset. The songwriter may be asked to sign an industry form contract that is said to be "standard for everyone." He may be led to believe it is only a formality, and told in so many words that this is his "chance of a lifetime" and not to sweat the small stuff.

If the songwriter asks any questions or proposes changes the publisher might accuse the songwriter of insinuating that he (the publisher) is dishonest. This is a ploy by the publisher to put the songwriter on the defensive. This enhances the publisher's position of strength and authority. The songwriter is made to feel that any objections will jeopardize the whole "deal."

Publishers will also exert authority by having the signing at their office. This further enhances negotiating strength via the psychological edge of being on their own turf.

Many experienced songwriters will ask for time to read, study, and go over the contract with their family, others who are directly or indirectly involved, and with their legal representative. This would enable a thorough understanding of the contract's content and consequences.

Other songwriters will hire a competent music attorney to study the contract for them and to do all the negotiations. This completely removes them from any confrontations. They can remain "friends" with the management of the publishing company while their representative hammers out the final agreement.

Legitimate publishers will respect sound business procedures implemented by a songwriter.

Experienced songwriters never rush into any contract without completely understanding its ramifications both short and long run. Total evaluation and understanding may take several days. After reading, studying, and discussing the contract with a competent music attorney they often put the contract aside for a few days, clear their minds, and then look at it again. They would talk to others who are currently under contract with the publisher. They would try to look at all…