Federal copyright law says that when you finally write the last note or find the perfect last lyric for the song you’re writing, you own the song in its entirety. More specifically, as soon as your song is “fixed in any tangible medium of expression” (for example, you put the pencil down on your handwritten manuscript, you save your final Sibelius or Finale file, or your recording of your demo from ProTools), you have a copyright in your song and you own all of it. This is separate from registering your song with the Copyright Office and there are many reasons why you should do so.
But simply because you own your song doesn’t mean you have the expertise to make money from it, especially if you’re not also a performer or recording artist. That’s where a music publisher comes in. A music publisher is a company that generates income (royalties) from exploiting copyrights in musical compositions. They do this mostly through licensing various rights, including permissions to publicly perform as well as issuing mechanical licenses to make audio-only recordings like CDs, LPs and MP3s and synchronization or sync licenses for the right to use the song in audio-visual works like films, TV shows, ads and videogames. And given that they are “publishers” they also sometimes license the printing of sheet music, too.
Assuming you would like assistance with making money from your songs, you may want to work with a music publisher. Before you do, first ask yourself a few important questions. Then you need to consider what type of publishing deal you either want — or are able to get. The deal the songwriter is able to obtain often depends on their experience and success in the industry, in other words, their bargaining power. Just as an all-star ballplayer has more clout to get a lucrative deal than a rookie, successful songwriters can negotiate better terms with publishers than newbie writers.
There are three basic types of music publishing deals although there are about as many variations on them as there are genres of music. But in order to understand how the pie is divided between the songwriter and the publisher in any music publishing deal, you’ll need to understand some music industry terms first. And the best way to illustrate these terms to describe the traditional music publishing deal and then describe how the other two basic types vary from it.
The first type of deal is a traditional publishing deal, often called a copyright deal. This is the arrangement that songwriters going back even before the days of Tin Pan Alley songwriters like Irving Berlin and the Gershwins typically had with their music publisher. The deal works like this: the songwriter assigns 100% of the worldwide copyright in the song to the music publisher for the life of the copyright in the song. In exchange, the publisher and songwriter split the royalties generated by the song 50% each. The publisher’s half covers their overhead, including rent, staff and equipment as well as their profit. The writer’s share of the income is known as the “writer’s share” and the publisher’s share of the income is known as the “publisher’s share.” If there are two writers of a song, each gets 50% of the writer’s share (i.e., 25% of the total income from the song) while the publisher still gets 100% of the publisher’s share (i.e., 50% of the total revenue generated by the song). So, regardless of the type of deal and how many songwriters are involved, the total writer’s share equals 50% of the income and the publisher’s share represents the other 50%.
But here’s where things get a little complicated, especially when we talk about the other types of publishing deals. The copyright ownership (as opposed to merely an income share) typically follows the publisher’s share. In other words, the writer’s share is an income interest only whereas the publisher’s share is usually both an income and ownership interest.
Under an administration or “admin” deal, the songwriter retains 100% copyright ownership of the song while the publisher receives all of the administration rights to handle the song. The publisher takes on this role for a commission fee, usually 10%-25% percent off the top of the total revenue, typically represented by 20-50% of the publisher’s share of income. This deal is generally better for the songwriter, which means that it is very hard to come by with a major publisher or significant indie publisher at the beginning of a songwriting career. That said, some non-traditional publishing services such as Kobalt and CD Baby offer administration deals (i.e., the songwriter continues to own the copyrights outright) but with little or no personalized services or active promotion. An admin deal typically lasts anywhere from three to five years, subject to renewal.
As you could imagine, a co-publishing deal (also known as a “co-pub and admin” deal) is a hybrid of the other two types of agreements. The songwriter and the music publisher share ownership in the publisher’s share (which means they also share ownership of the copyright to the song). For example, if the publisher owned half of the publisher’s share, it would receive 25% of the total publishing revenue (half of the publisher’s share) but it would own 50% of the copyright to the song; the songwriter would receive 75% of the total publishing revenue (half of the publisher’s share plus the entire writer’s share) and would still own 50% of the copyright to the song. The publisher would also be granted 100% of the administration rights and therefore still has control over administering rights to the song. In some of these deals, the publisher will take an administration fee on top of receiving a share of the royalties. As with a pure admin deal, a co-publishing deal typically lasts for a term of years, but like a traditional copyright deal, the slice of the copyright that is assigned to the publisher is usually for the life of the copyright. If the co-publishing deal isn’t renewed, then the songwriter and the publisher would separately “administer” their respective income and ownership interests in the song.
The experience and success you have had as a songwriter will determine the type of agreement you will be able to negotiate. An administration deal may seem like the most favorable option to a songwriter, and because of that it is the most difficult deal to have as a beginner in the field. Sometimes a co-publishing or publishing deal can be more beneficial to the songwriter, as these deals can come with a larger cash advance and publishers are more likely to “work the catalog” of songs they own outright than those they merely administer. This option may still only be available to more successful songwriters. We’ve only scratched the surface and these deals can be quite complicated. You should retain a qualified attorney to help make sure you negotiate the best deal possible. The experienced entertainment attorneys at Romano Law are ready to help. Contact us to speak with a member of our team.