The publishing deal is arguably one of the most important contracts in the music industry. Every songwriter should understand what a publishing deal is, and carefully choose their publisher and what rights they want to share with them. An informed artist is a better artist, I always say.
Following-up to (PART 1), here is an overview of various publishing deals and key clauses to look out for.
TYPES OF PUBLISHING DEALS
First refusal agreement
The songwriter reserves to the publisher the exclusive right to exploit their work for a limited period, (say, 3 years or 2 albums), and undertakes to assign their copyright to the publisher should the publisher exercise their option. In return, the songwriter generally receives an advance.
The songwriter assigns 100% of their copyright to the publisher, and in return, receives a share of the royalties. The term of the assignment usually lasts for the duration of copyright, which is to say, 50 years after the songwriter’s death (Canada). This type of deal is still used in Quebec, though, much to delight of songwriters, co-publishing deals are a growing trend.
The songwriter assigns :
- 50% of their copyright to a corporation owned by themselves; and
- 50% to the publisher.
Copyright is therefore jointly owned by the publisher and corporation/songwriter. As for royalties, as the author must not receive less than 50% of royalties [i.e. the writer’s share], and since the publisher’s share [i.e. 50%] is split 50/50 between the publisher and the songwriter’s corporation, the songwriter receives 75% and the publisher 25%.
The publisher manages the musical works for a set period, and in exchange receive a commission (typically 10-15% of the royalties). There is no assignment of copyright: the publisher manages the musical catalogue, handles collecting societies, processes licence applications, grants authorizations, etc. This is an ideal option for songwriters who need administrative support but want to retain their copyright.
SIX CLAUSES TO UNDERSTAND & LOOK OUT FOR
1. ASSIGNMENT – Never, never, make an assignment “just because” the clause was in the contract you borrowed from your friend. An assignment is a thought-through decision. There is no need for one, for example, if the parties only wish to share the royalties for a set period. An administrative agreement can do that.
2. TERM OF ASSIGNMENT – The industry standard is that the assignment should last for the duration of copyright, i.e. 50 years after the death of the author (Canada); in other words, forever. That said, keep in mind that many publishers will agree, or will consider, reducing the term to 10, 15, 25 years.
CAUTION ** Some record label Master License deals will demand to own the copyright of the recorded musical works for the entire term of the copyright. This is a red flag in my opinion. For one, the label may not have the resources, or expertise, to offer a publishing service. For another, if you are to share your copyright with a record label, I strongly believe it should be for the duration of the Licence deal (about 1-5 years), not your life + 50 years.
3. ADVANCE – The advance the songwriter receives from the publisher depends on a variety of things, including the songwriter’s reputation and that of their catalogue, whether there is an exclusivity clause or an assignment, etc. This sum is generally agreed upon at the signing of the contract. It is a recoverable, but non-refundable, advance on the royalties to be paid to the songwriter.
4. TERMINATION – “How can I get out of this contract?” is a key question that everyone should ask themselves before signing any deal. A variety of situations can lead to the termination of a contract, including, for example, the publisher’s failure to meet contractual obligations, bankruptcy, or assignment of the contract to a third party without the songwriter’s approval.
5. ACCOUNTING AUDITS – The nature of music publishing being inherently administrative, it is paramount that the songwriter receives detailed reports on a monthly, quarterly or semi-annual basis. They should also be allowed to audit the publisher’s books at least once or twice a year, the costs of the audit being borne by the publisher if a discrepancy of more than 10% is found between the sums paid and sums actually owed.
6. SUBCONTRACTS – Occasionally, a publisher may entrust to a third party the management of part of its catalogue in a particular territory. Make sure that the sub-publisher’s commission is taken from the publisher’s share rather than by splitting the pie three ways.
** ONCE AGAIN, THIS IS A BRIEF OVERVIEW OF THE VAST FIELD OF PUBLISHING. I would be happy to discuss it further with you if needed! **
:: Translated by Emily Alberton ::
:: Photo credit : Natalie Perea ::