This article originally appeared in the May/June 2021 issue of Canadian Musician magazine.
So, you’re a songwriter, artist, or producer and you got a publishing deal offer — congrats! It’s a huge accomplishment. But what exactly did you get an offer for, how does a publishing deal help you, and what should you look for in a publishing deal?
Let’s review the basics real quick: a sound recording has two copyrights: 1) the composition, a.k.a. the “song”; and 2) the sound recording, a.k.a. the “master.”
When you, the creator, record a composition, you’re also creating a sound recording or master that can be assigned to a record label. The composition, as you probably guessed, is the underlying composition of the sound recording that you can assign to a publishing company.
So, what does a publishing company (“publisher”) do? Ideally, a publisher takes care of the business side so you can do what you do best, create music! A publisher finds people to use your songs, issuing licences and collecting money, and then pays you (or “administers”) the composition.
Usually a publisher splits income 50/50 with you (with a few exceptions), and the money the publisher keeps is known as the publisher’s share. The remaining is called the writer’s share. So, if someone pays one dollar to use a song, the publisher keeps 50% (or 50 cents) as the publisher’s share, and the songwriter gets paid 50% (the other 50 cents) as the writer’s share.
This brings us to one of the most important points. A publishing company should do something for you.
What should they do? They should regularly put you in writing sessions with songwriters and producers if you’re an artist, or if you’re a songwriter, they should put you in writing sessions with artists and producers. They should pitch your music for inclusion in television, films, and commercials. Publishers should earn the right to collect a share. But how do you make sure a publisher is working for you from the outset?
When you sign a publishing or a label deal, it’s very much like a marriage. Publishing deals are often for multiple years, so you want to be sure you know who you’re getting into business with or you might find your publisher sitting on their hands and collecting a percentage on your work while you hustle to find writing sessions yourself.
Normally publishing companies will try to woo you before you sign with them so you can get a sense of the opportunities that they will provide. They might put you in sessions, introduce you to some of their clients, or introduce you to their team. So, write a list of questions to ask, and here are a few that I find helpful:
For one, determine how big their sync team is. How many people are on their team? What do they all do? Ask them to name some of the placements they’ve secured over the past six months. Ask them to name some of the other artists, producers, or writers signed to them. Call the management teams of the other artists, writers, and producers that are signed to the publisher to ask what their experience has been like. And don’t just call one of them, call at least three. It’s important to sign with the right team for you, and asking these questions will save you headaches down the line.
Once you get a contract from the publisher, realize that the attorney who drafted the contract for the publisher is normally going to put in terms that benefit the publisher because, after all, they’re hired by the publisher. Makes sense, right? If you want changes, you have to ask for them. Don’t be shy! Hire a representative that understands publishing deals and advocate for yourself! Here are a few tips:
An advance is not a gift, it’s more like a loan. Publishers and labels are in the business to make money, and not to give it away. The royalties you earn pay back the loan. So, if you receive a dollar, the publisher will take their 25% fee (half of the publishing) and the balance (or 75 cents) will be applied against the money the publisher advanced to you. Depending on your standing in the music industry and how much bargaining power you have, sometimes only the publisher share will be applied to your advance, but for most people, the publisher and writers share are applied.
Advance money is a reminder of how important it is to know what your publisher is doing for you! Your advance isn’t free money, so if your publisher isn’t doing much to help your career, your advance is not going to be recouped (or paid off ).
One provision you want to include in a publishing deal is the ability to pay off your advance so you can have your catalogue back. The amount you pay back is not going to be the amount you owe, but something like 110% of what is owed. And again, if you don’t ask, your publisher is likely not going to include these provisions, which means your catalogue will be tied up forever (possibly). And with the years, it could just collect dust!
ADD A “CATCH-ALL” PHRASE
As you may understand, with changing technology we cannot always predict what medium a composition could be used in in the future. As such, normally when I get a publishing deal from a publisher’s attorney, I see a phrase that states you, the “creator,” are entitled to a share of monies from sources specifically set-forth and outlined in the contract. That isn’t to your advantage as there could be different sources of income not specifically outlined in the contract or sources not anticipated and later developed. Instead, add that you get 50% of “all other monies not referred to in this agreement.”
GET A REVERSION
You know that phrase, “If you don’t use it, you lose it?” It very much applies to publishing deals! When you ask for a “reversion,” it means that if a publisher doesn’t exploit, license, or generate any income with the composition, then the composition, after a period of time, should revert back to you. Publishers should not have a right to collect your songs and have them sit in their catalogue if they’re not helping you make money with those songs. We call those people song sharks. Here are a few types of reversions:
• Automatic Reversion: An automatic reversion is when a songwriter with a lot of bargaining power can ask for reversion of all compositions, whether or not the compositions are recorded.
• Partial Reversions: this means you get back administration rights to your share of the composition, but the publisher keeps the administration of theirs. For example, if you have half of the publisher’s share and all the writer’s share, you get 75% of the song’s income. A partial reversion gives you the right to administer 75% of your share, but publisher keeps administration of their 25%.
Sometimes publishers will agree to a reversion, but make it tough for you by requiring that you provide them with written notice to get the songs back on a particular date or within a particular period of time. Make sure to put that date in your calendar right after you sign the agreement. Set an alarm on your iPhone, call your lawyer, tell your mom to remind you; whatever you have to do!
Before we wrap up, here are a few other quick tips to keep in mind:
Share of publishing company advances: You should share in advances and guarantees that are specifically for owner’s composition.
No “Sweetheart” deals: This means that if the publishing company is affiliated with a record company, there should not be any “sweetheart” licences, or licenses at less than a customary rate. Licenses between publisher and affiliate companies should be at “arms-length”.
Children in music: If you’re a minor or parent when the publisher wants to sign you/your child, the publisher may seek something called affirmation of a minor’s contract. Make sure that if the publisher seeks judicial approval of the publishing agreement, that the publisher pays any attorney fees and costs.
With this knowledge in your back pocket, your publisher will earn their share and work for YOU! I hope your next song goes Diamond faster than “Old Town Road!” Be blessed!
Dani Oliva is an artist advocate, speaker, and music attorney focused on helping talented creators thrive in the music business. Follow him @olivaesq and find out more at www.olivaesq.com.
Sindee Levin is an entertainment lawyer and music publishing administrator with more than 30 year of experience. Find out more at www.sindeelevinmusic.com.