This article will discuss various aspects of how music publishing works in the music business. Including how to publish music, what does a music publisher do, how to publish your own music (or self publishing music) and more. The best way to understand music publishing is to start with some basic terms.
The word “publish” simply means to make a work public (i.e., performing or releasing a song as opposed to writing it in your notebook or diary).
The term ‘publish’ is defined in the copyright law as “distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, or lending”.
The words ‘music publishing’ most simply refers to the business of song copyrights. To understand what activities come into music publishing in that case, let’s first look at copyright:
Under copyright law, a songwriter owns 100% of his or her song copyright and all the related so-called “publishing” rights until that songwriter signs those rights away in a written agreement. Under the law, a copyright (literally, the right to make and sell copies) automatically vests in the author or creator the moment the expression of an idea is ‘fixed in a tangible medium’ (i.e., the moment it is written down or recorded).
According to the CDPA (Copyright Designs And Patents Act of 1988) the owner of the copyright has the exclusive right to:
With respect to the recorded music business, there are really two copyrights: a copyright in the musical composition owned by the songwriter and a copyright in the sound of the recording owned by the recording artist or record company – this article will deal with the copyright in the musical composition and understanding what a music publisher does for you.
As a songwriter, you own the copyright in your work the moment it is written down or recorded, and by law, you can only transfer those rights by signing a written agreement. Therefore, a songwriter must be wary of any agreement he or she is asked to sign. As a songwriter, you are self-published until you get a publishing deal and sign a publishing contract. Therefore, you must understand how to handle your own business at the start.
Although it is not necessary, it is advisable to place a notice of copyright on all copies of your work. This consists of the symbol © or the word ‘copyright’, the author’s name, and the year in which the work was created, for example: © John Doe 2020.
In the US, the filing of a copyright registration form in Washington D.C. gives additional protection in so far as it establishes a record of the existence of such copyright and gives the creator the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of attorneys fees to the prevailing party.
You may wonder: what music publishing companies do, how to get a music publishing deal, or how to sell songs to music publishers? As a practical matter, the business of music publishing consists primarily of all administrative duties, exploitation of copyrights, and collection of monies generated from the exploitation of those copyrights which are publishing royalties. If a writer makes a publishing deal and a publisher takes on these responsibilities, then it ‘administers’ the compositions.
Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the musical compositions. Until such time as you enter into a contract with a music publisher, you must handle these responsibilities yourself. In other words, in that case you would be self-published.
This means you have to do all the legwork publishing your music online, offline, finding opportunities for your songs and more. A music publisher takes away all of this admin work so that you can focus on doing what you do best – making music!
One of the most important functions of a music publisher is the exploitation of a composition or plugging a song. Exploitation simply means seeking out different uses for musical compositions.
Sometimes a music publisher will have professional quality demos prepared and send them to artists and producers to try to secure recordings. The publisher will also use these tracks to secure usage in the TV, film and advertising industries, or what is known as sync licensing or synchronization use.
Equally as important as exploitation is publishing royalties or the collection of the monies earned by musical usages. This is also known as music publishing administration. The sources of income generated by a song’s copyright have expanded massively in recent years. From mostly physical record sales and radio performances into the modern, digital realm.
Income sources now include streaming services as well as digital downloads, live performances. Even uses in apps, e-cards, advertisements/commercials, remixes and samples, toys and interactive dolls, slot machines, digital jukeboxes, and more. Even if your lyrics are used on someone’s T-shirt or other items, they should be paying you royalties for that.
Having a competent publishing administrator to monitor and collect from all these sources is important. The two primary sources of income for a music publisher are still:
Mechanical royalties are collected directly from the record companies or other distributor and paid to the publisher in the US. In the UK, the MCPS collects mechanical royalties and distributes them accordingly. Performance royalties are collected by performing rights organizations – ASCAP, BMI, and SESAC in the United States or PRS and PPL in the UK. They are then distributed by those performing rights organizations to the publisher(s) and to the songwriter(s).
Music publishing isn’t just plugging and administrative functions though, there is also a creative side to it. Since producing hit songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers grow and develop. The creative staff at a publishing company find and sign new songwriters and work with them to improve their songs. Then, they pair them up creatively with co-writers and more in the hope that hit records are the outcome.
A publishing deal in music concerns rights and revenues. If there is more than one writer on a song, the writers should sign a music publishing split sheet. This designates what percentage each writer owns. Then, each writer can do its own music publishing agreement or retain its respective rights. If a writer decides to do a publishing contract then the main issue for negotiation is going to be the language pertaining to the calculation and division of the rights in the copyright and the division of the monies earned.
In the old days, most deals were 100% copyright to the publisher and 50/50 share of the revenues. This is because there was a conceptual understanding that the so-called ‘writer’s share’ was 50% and the ‘publisher’s share’ was 50%. This, of course, was an invention of the publishers. Legally, these terms have no such inherent meaning, but their calculation is defined in each individual music publishing contract.
Most modern publishing contracts, however, are deals where the copyrights are co-owned 50/50. The monies in these deals are usually calculated at around 75/25 in favor of the songwriter. The songwriter gets 100% of the 50% “writer’s share” and 50% of the 50% “publisher’s share”. This makes for a total of 75% of the revenues. It is best for the writer to insist that all calculations be made ‘at source’. This is simply so that there aren’t too many charges and fees deducted before the 75% calculation is made.
Keep in mind that any “advance” the publisher pays the writer is a pre-payment of royalties not yet earned. Therefore it is later recouped by the publisher out of the writer’s share of songwriter royalties earned from the song.
A music publisher will typically account for and pay the songwriter royalties several times a year. This is usually either semi-annually or on a quarterly basis depending on the deal.
It’s true a writer can be their own publisher and retain 100% of the money. However, the larger publishers in the music industry usually pay substantial advance payments to writers. They do this in order to induce them to sign a portion of their publishing rights to the publisher. Don’t see this as a threat though! It can be a very good thing for the writer. This essentially is a loan to allow the writer to spend time writing, collaborate or pay for studio time etc.
Although a deal for a single song could have little or no advance payment, there should be a substantial music publishing advance ($5,000-$100,000+) for any publishing deal with a longer-term (e.g., 3-5 years or more).
Moreover, sometimes the length of an agreement is more than just a function of time. It might also be based on the number of songs required to be delivered by the songwriter. Or, even more difficult to calculate, the number of songs released on a major label. This is difficult as it’s an eventuality that neither the writer nor the publisher may have any control over.
Remember, if you think about it, since you start with 100% ownership of your song’s copyright, the net business effect of any advance on a music publishing deal is that the publisher pays the songwriter with the writer’s own money (although not yet earned) to buy a share of the copyright and the right to future income) from the writer.
When looking for a music publisher, you’ll have to keep all of the above in mind!
Publishing deals have to do with more than just the money. Since every music publisher is different, it is important for the songwriter to assess everything before signing any contract. Ultimately, the songwriter is trading a share of something the writer already owns 100% of (the copyright). Therefore it’s important to be mindful of what exchanges between the parties by way of services and money.
Have a look at our article on the best music publishing companies to help you make a decision!
At the end of the day, if you believe in yourself and your talent, give yourself the benefit of the doubt! That means invest in good legal representation – all the successful songwriters do. Your entertainment lawyer can ‘translate’ the publishing contract to you and explain its terms. They can then also help negotiate more favorable terms for you as appropriate. My advice: never sign anything – other than an autograph – without having your entertainment lawyer review it first.
If you’d rather stay independent but still want access to collaboration or to get A&R or sync licensing opportunities, we’re here to help! Make sure to sign up to Music Gateway to try all this out for free and see for yourself.