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© C in a Circle - Signing Away Your Copyright: Joining Forces With A Publisher

Because most novice songwriters are not artists and don’t have a network of professional contacts to turn to, the traditional way to turn your song into royalty income is to try and get it published.

Posted in Songwriter 101 on July 5, 2004 by

When you write a song, you want to get it heard by someone in the industry who may like it and be willing to try and get it recorded by an artist. If you happen to be an artist yourself, you could record your own song.  If you have a network of friends and colleagues that includes artists or their reps, you could try yourself to get your new song recorded by others. But because most novice songwriters are not artists and don’t have a network of professional contacts to turn to, the traditional way to turn your song into royalty income is to try and get it published.

A music publisher is in the business of finding songs that it believes have a chance at commercial success and of using its network of contacts in the industry to match the song with the artist whose rendition would likely make it successful with the public. There are both major publishing conglomerates in the U.S. such as Universal Music Publishing, EMI Music Publishing and Warner/Chappell Music, among others, as well as dozens of independent music publishers, often run by only a few people, whose smaller size allows them to provide more personal service to its songwriters but may not have the resources or contacts of the majors.

When a writer submits a song to a publisher, the publisher will listen to the demo and decide if the song is one that the publisher wants to represent. If so, the writer will be asked to sign an agreement, usually called a songwriter-publisher agreement. What is unusual in this kind of agreement is that the writer will be asked to transfer his ownership of the copyright to the publisher. That has the effect of leaving the writer with no future ownership interest in his creation. What the writer gets in return is a royalty sharing arrangement, spelled out in the contract, which states what percentage of the money the publisher receives for things such as record sales, derivative work uses, soundtrack licensing, etc. will be split with the writer. Many times this is 50%, but some publishers are wiling to give the writer more.  (Sometimes it all depends upon how well you - or your lawyer-bargains, and who the publisher is).  Occasionally the publisher will agree to allow the writer to keep a part of the copyright - be a “co-publisher”- so that the writer doesn’t have to lose ownership of his entire copyright. In those cases, however, it is not uncommon for the publisher also to seek to be the “administrator” of the copyright, the company that handles all the business dealings with third parties. A publishing administrator usually gets to collect both its share and your share of income and then receive an administration fee of about 10-15% before paying over to you what was agreed.

If the publisher thinks that you have writing talent, it may offer you an exclusive songwriter agreement that would give the publisher the copyrights in all of your future works for a period of time, with each new work being subject to the same percentage shares and/or co-publishing right as stated in the agreement. Those new works would each fall under the terms of the exclusive agreement without your having to sign a new contract or transfer your copyright in each to the publisher.

Once you and the publisher sign the agreement, record companies whose artists want to cut the song or producers who want to use it in a film would deal with the publisher/administrator rather than with you, because the publisher is now the copyright owner. It has all the say on what can be done with the song thereafter and does not have to confer with you about its deals unless it says so in the agreement (which is not customary).

Because the law requires a transfer of a copyright to be in writing, if a publisher and you merely agree that he shall have your publishing rights but never commit it to writing, you still have ownership of your copyright. Perhaps you have given a publisher under such an “oral” transfer a license to exploit your works, but it essentially would just be filling that role until you decide otherwise. That’s why a cautious publishing company insists on a written agreement. For it to expend significant resources on exploiting a song without knowing that it owns the work would be foolhardy.

But, whatever you do, NEVER, NEVER, NEVER pay to have your song published. You may feel that you’ve hit the jackpot when you send your song out to a publisher and a letter and contract comes back saying CONGRATULATIONS! But if it also asks for money from you - however modest - it is likely to be from what is known in the industry as a “songshark,” someone who asks writers to contribute toward having their songs published or recorded. While such a practice isn’t illegal, it is considered unethical, and you are wasting your money. The songshark usually lives up to the strict language of what it promises in the agreement, such as putting your song on a CD or printing copies, and maybe even sending it around to radio stations - but in most cases, those actions do not result in getting your song played on the air or sold to consumers.  And most songsharks are sure to have you assign them your copyright, so you’ve given it away to a company that is not likely to do anything of value for you and from whom it may be impossible to reclaim. A legitimate publisher doesn’t ask to be paid to publish your song - it signs you because the publisher thinks you can both make money from your creation - and as the business person in the partnership, the publisher lays out all the money to try and make it a success. So be warned.

Even though the publisher owns your song’s copyright, the law makes you the benchmark of copyright life and even allows you to get it back under certain circumstances. More about that next time.

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