Music Publishing Continued
Music Publishing Continued (Chapter 6)
“Never sign a contract without an entertainment attorney you trust.”
Draft Contract (page 102)
–1.0 Appointment is the “writer” who works exclusively for the Publisher.
–2.0 Term is the number of years with options for publisher.
-Notice the # of commercially released recordings, The Recording Goal.
-Notice writer cannot deny extensions of initial term if advances had been paid and unrecouped.
-Can be negotiated if all advances have been recouped.
-If the Publisher’s affiliated recording company terminates the Writer’s contract as a royalty artist (gets dropped), the Writer’s contract shall be coterminous (dropped) with that recording contract.
–3.0 Assignment
-The Writer assigns Publisher ALL RIGHTS to select songs.
-The Writer also assigns Publisher ALL RIGHTS to songs created by writer during term.
-Notice the delivery # of songs a year.
-In an EXCLUSIVE DEAL, Publisher controls all works.
-If a NON-EXCLUSIVE DEAL, Publisher doesn’t agree to accept them all for publication & exploitation. The Writer reserves the right to assign them to another Publisher.
-A FIRST REFUSAL DEAL
-If the publisher does not agree to accept them for publication within 60 days of being offered, the Writer reserves right to assign them to any other publisher.
-Would be made only if no advances were paid. If the publisher has paid the writer an advance, the publisher will not allow the writer to sign with another publisher.
–4.0 Warranty
-The Writer warrants that the Writer has the right to enter into this agreement and that the Controlled Compositions are original and that as the sole author and composer, the Writer has not paraphrased or otherwise used any copyrighted material for them.
-Basically, the Writer indemnifies (protects) Publisher against loss or damage and attorney fees arising out of a breach of warranty, including a situation where any copyright infringement action is settled with the Writer’s consent.
–5.0 Advances and Royalties
-Publisher needs to provide a healthy enough advance for the writer to live while works are in beginning stages of exploitation, but not so generous incase advance money is never recouped. -Can be a lump sum.
-Can be payments.
-Payment of such advances is dependent upon the Writer’s prior delivery of the agreed-upon number if compositions, and in the event of non-delivery, the Publisher shall have the right to suspend payment of advance installments hereunder.
–5.3 Publisher pays Writer 10% of wholesale price on sale of all printed editions in US & Canada.
–5.4 No cross-collaterization is permitted the Publisher in respect to any royalties or other payments made to the Writer by the Publisher’s affiliated recording company.
-Benefits the artist.
-If not, it could even be extended to allow recoupment of recording costs and advances under the record agreement from royalties payable under the publishing agreement.
-Basically eliminates “double dipping.”
-5.5 Song splits (A&R Admin usually handle) –Good to have song split sheets.
–5.6 If Publisher engages Writer as an arranger, orchestra, Writer if a union member gets American Federation of Musicians (AFM) union scare and $ is non recoupable.
–6.0 Foreign Rights
-Publisher shall have the right to designate subpublishers, foreign licenses, or affiliates outside the territory of the United States on such terms as the Publisher in its reasonable business judgment shall determine pursuant to arm’s-length negotiations, provided that in no event shall the percentage paid to the Publisher of income earned at the source be less than 75%.
-An arm’s length agreement is negotiated between two unaffiliated parties acting in good faith to reach an understanding that benefits both parties. Such a stipulation would avoid one party having an undue advantage over the other.
-An agreement between a parent company and its affiliate or subsidiary company that favors the parent company at the expense of the subsidiary company is not an agreement negotiated at arm’s length.
–7.0 Promotion Expense
-Publisher is responsible for all promo expense, including production of audio & video demos. -The extent to which promotion expenses are recoupable is subject to negotiation.
-Catch: The demo costs are typically 50% recoupable.
–8.0 Right to Audit
-The Publisher grants Writer the right to engage a qualified accountant to examine the Publisher’s books/financial docs. (Explain risks of one off or deal with publisher you don’t trust)
–9.0 Creative Rights
-The Publisher acknowledges that the Writer’s reputation and potential income relate importantly to the originality and quality of the Controlled Compositions as well as to their use.
-The Writer acknowledges however, that the Publisher has the right to make minimal changes in the compositions and has the day-to-day responsibility of determining the best way to exploit compositions.
-To balance these interests of the parties in this respect, it is agreed that the Publisher has the right to do any or all of the following in this context only with the consent of the Writer:
–9.0-A Publisher has right (w/ consent of writer) to engage lyricists to alter Writer’s material, or to write new lyrics.
–9.0-B Make changes in music.
–9.0-C Sensor.
–9.0-D Use Writer’s likeness, photo or name to exploit a product or service, in respect to appropriateness and good taste, and without paying the Writer a royalty commensurate (corresponding in size) with the exploitation value.
–9.0 E License a Controlled Composition for use in connection with a broadcast commercial, print advertisement, or merchandising of a product of service.
–9.0 F Grant a Grand or Dramatic Right in connection with part of the production and performance of a Controlled Composition as a dramatic or musical work.
–Grand Rights are often excluded in publishing contracts.
–10.0 Right of Assignment
– Publisher reserves right to assign contract to another fully qualified Publisher (assignee assumes all responsibilities of 1st Publisher).
–11.0 Reversion
-If Recording Goal isn’t reached, Writer grants Publisher 6 month extension period beyond the initial term set forth under item 2.0 of contract.
-If, by the end of the extension period, the Recording Goal has still not been reached, and if no advances have been paid by the Publisher to the Writer, or if paid, recouped or repaid to the Publisher, all rights in any Controlled Composition not released or reordered revert to the Writer.
–12.0 Default, Cure
-If either the Publisher or the Writer assets that the other party is in default or breach of this contract, the aggrieved party shall provide written notice setting forth the nature of the default or breach.
-The accused party is then allowed 30 days to cure the alleged default.
–13.0 Arbitration
-The parties agree to submit all disputes to the American Arbitration Association and be bound by and perform any award rendered in such arbitration.
Sampling
-Permission to sample must be obtained from the Publisher and Record Comp of the original recording (if not, sampler is infringing the copyrights in the original work)
-Legitimate use of sample can involve a one-time, flat-fee license, royalty participation in the new copyright, or a combination
Promotion, Advertising
Popular Music
-The main goal of a Publisher of popular songs is getting music recorded and broadcast.
-Publishers generally persuade artists and record producers to record their music through direct, personal contacts.
-Even though the publishing and recording industries are huge, much of the power and control are in the hands of a relatively small number of insiders, including major recording artists, record producers, established writers and important managers.
-The Game.
Song Casting (Song Pitching)
-Matching songs w/ performers AND getting them PLACED (relationships).
Cover Records
-Getting other artists to record song (Cover Records).
Digital Promotion (Sheet music)
-Electronic or digital exploitation (promote, license, and sell music directly via the Internet).
Synch Promotion
-Film, TV, & commercial synchs (“synch experts” pitch material to music supervisors & ad agencies)
Educational Field
-Promoting printed music for schools.
-Direct mail campaigns to music educators w/ samples of recordings/sheet music AND display advertisements in music ed. Journals.
Income Sources
-Publishers have option of granting permissions-to-use either on a royalty basis (a % of sales), or for a one-time flat fee.
- Broadcast Performances (TV): paid by Pub’s PROs
- Nonbroadcast Performances (clubs, stadiums, etc.): paid by Pub’s PROs
- Mechanical Royalties: paid by Label
- Sheet Music Sales: paid by Pub’s Print Music Licensee
- Streaming Online (Publisher’s PRO’s which collect from digital companies)
- Synchronization of Music To Film/Tape (movies/videos): paid by Movie, Video, or Game Producers
- Jukeboxes: Paid by Pub’s PRO
- Dramatic/Grand Rights (plays/shows): paid by Producer of dramatic performance
- Special Permissions: (greeting cards, toys, lyrics used in books/mags, ringtones): Pub’s Licensee
Trade Associations and Rights Administration
- National Music Publisher’s Association (NMPA)
-The trade association most representative of publishers in the popular music field.
-Provides leadership for music publishing/songwriting community, advocating for a variety of issues, including the protection of copyrights in an age of advancing technology and the payment of royalties for electronic delivery of music throughout the world.
- The Harry Fox Agency (HFA)
-The NMPA established The Harry Fox Agency in 1927 to provide an information source, clearinghouse, and monitoring service for licensing musical copyrights.
-Operated under NMPA for nearly a century, eventually being acquired by SESAC in 2015.
-Has over 48,000 music publishing clients, and issues the largest number of mechanical licenses for the use of music in both physical and digital distribution formats.
Services
-A suite of outsourced technology solutions designed to facilitate the administration of intellectual property rights.
-The online tools are suitable for small do-it-yourself publishers and also small- scale users.
- Mechanical licensing
-The licensing of copyrighted musical compositions for use on commercial CD’s, records, tapes, permanent digital downloads, interactive streams, limited downloads, ringtones, and digital background music services.
- Royalty Collection and distribution
-The collection of royalties from licenses using copyrighted musical compositions and the distribution of these royalties to publishers.
- Association of Independent Music Pubs (AIMP)
-Primary focus is to educate local music publishers about industry trends & practices via monthly meetings, forums, & workshops.
-Also includes in its membership not only independent music publishers, but also publishers that are affiliated with record labels or motion picture and television production companies, as well as individuals such as songwriters, artist managers, and members of the legal and accounting professionals.
