The Business of Music: Record Label Agreements

The Business of Music: Publishing

MICHAEL DUBOFF, an entertainment lawyer at Edwards Creative Law

Publishing the music that an artist creates is often a primary goal when one thinks of music as a business. Having your music heard in other mediums – TV series, movies, advertisements and games – comes with a number of legal considerations.

Every person who writes lyrics and/or composes music is “self-published” until they work with a publisher. At that point, the individual is no longer self-published, but rather has a “publisher” – which comes in all shapes and sizes.

A publishing administrator’s focus is collecting royalties. A co-publisher collects royalties, but also seeks opportunities for the musician to work with other musicians, such as by sending the musician to writing camps, and also pitches for opportunities to have the music be used in audio-visual works from TV series and films to ads and video games.

Having a co-publisher really means you have a publishing partner – you are likely working with the publishing company for the long term, or at least for a long time on specific compositions.

Due Diligence: 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.

Compensation: 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) mechanical royalties, (b) 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 (c) the publisher’s share of performance rights royalties (which is usually 50% of the fees provided by SOCAN (the Society of Composers, Authors and Music Publishers of Canada) 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 agreements, co-publishing agreements for specific recordings / albums, and co-publishing 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.

Advances: One element to consider is how much money, if any, the publisher is providing up front in cash to you, as an advance 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 from what they would otherwise pay to you from royalties generated in future.

Those Darn Expenses: 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.

The Right Partner: As alluded to above, doing due diligence is extremely important. The most important consideration is who the publisher is, and if now is the right time to work with a publisher. If you have an album coming out in 6 months, and a publisher wants to offer you an advance of $2,000 today, with otherwise industry standard terms, if you want to bet on yourself that your album will do very well, and be able to command a much larger advance once the album drops, wait to see how the album does before negotiating an advance with a publisher. That’s easier for me to say, and I recognize that if you need money for rent or other purposes sooner than later, you might need to take a smaller advance today, even if you are betting on yourself – which you should always do.

Plan for success, but also plan based on your needs, and work with the right publishing partner who you truly believe can help take you to the next level.

Michael can be reached at: michael.duboff@edwardslaw.ca