Working With Publishers
A bit further down the road of a writer’s career the music publisher may enter the story. A publisher’s job is to take the song or catalog and derive as much income as possible from it. The publisher may have connections to sales outlets such as film sound tracks, foreign licensing and other avenues that a songwriter may not have access to. Most successful songwriters are signed to a major publisher and enjoy a long relationship with them.
Let’s take a moment to discuss the rather arcane way songwriter/composer royalties are looked at. There are actually two components to the publishing side of a song: the writer side and the publisher side. These two pieces of the pie are equal in size.
Normally the Publisher takes all the publishing rights and the writer takes all the writing rights – effectively splitting the gross income in half. In the case of a known and proven songwriter, the writer might have enough leverage to change the equation a bit. Although the writer’s share in publishing is protected by law, the publisher’s portion is negotiable. A writer with hit songs under their belt could hold all the writer royalties and half the publishing as seen in the second chart.
The contractual terms of an agreement between a songwriter and a publisher again depends on the negotiating strength of each position. A major publisher with thousands of songs in their catalog, many of them hits, can open many doors for an emerging writer. A startup publisher with only your songs in their catalog may harvest different results. Any relationship with a startup publisher should be with a reversion clause based on performance. A writer can be willing to give a new publisher a shot, but only if it pays off and soon. On the other hand, when you are giving a publisher the exclusive rights to pitch the song, whether they paid for it or not, give them ample time to shop it around. A six month to one year period should be sufficient for your publisher to exhaust his leads.
The best way to approach a publisher is with a single song deal with options for renewal and/or reversion between both parties. If the publisher can’t place a song in a given period, the rights revert to the writer. If the publisher delivers, the writer agrees to assign the rights to the publisher. If both parties are satisfied, they can move on to a broader relationship involving more compositions or even an exclusive writing agreement.
It is not always necessary to have a publisher, even if you have found some success. Writers in certain niche markets such as Tejano, rap and other genres can successfully publish their own songs and leave the administration to a third-party publisher. Many artists who own their own catalogs allow Bug Music to administer the songs. Bug is a worldwide company and can enforce the publishing copyrights in markets and countries the writer has never heard of. Bug Music makes sure that the accounting and enforcement components are in place and takes care of all the paperwork. Again, the rate or percentage of the money shared with Bug Music depends on the strength of the writer and catalog, typically between 6-30 percent. If I was a band that was licensing recordings to a European label for example, I might look at Bug to administer my publishing rights in that market.
Let’s take a look at the three most common publishing deals: the option, the single song agreement and the exclusive songwriter agreement. We’ll start with the option which is tied to a more comprehensive second agreement should the song find placement.
Single Song Option
Addendum to Agreement Dated: ______________ day of _______, 20__.
The Writer and Publisher do hereby agree to the terms of the aforementioned Agreement under the following terms and conditions:
1. Publisher agrees that if the song now titled _____________________ is not assigned a mechanical license to be recorded and released to the general public on phonorecords by the ______ day of _______________, 20____, the Publisher shall relinquish and return all rights and copyrights to the Writer.
2. The Writer shall not be held responsible for any payment to the Publisher regardless of the amount Publisher may have spent on the recording, development, promotion, or any other expense incurred by Publisher relating to this song.
3. In the event Publisher is responsible for the placement of said musical composition on CDs, DVDs or any and all other formats released to the public, Writer hereby agrees to honor and uphold the Publishing Agreement to which this is an Addendum.
4. Writer agrees that the Publishing Agreement shall be in force and binding during this option period and will not assign the rights to the aforementioned song to any other until this Addendum has expired.
5. During this option period, Publisher shall not be required to defend Writer against any legal action against Writer for copyright infringement, or any other proprietary right. After this option period has expired with the song recorded on CD or phonorecords, and the Publishing Agreement to which this is an Addendum is in effect, Publisher will defend the Writer under the terms outlined in Article II of the Publishing Agreement.
6. Governing Law: This Agreement shall be governed by the laws and in the courts of the State of _____________ and by the laws of the United States, excluding their conflicts of law principles. Any dispute or legal proceeding regarding the Agreement shall take place in the county of _____________, in the State of _________________.
We, the undersigned, do hereby acknowledge and agree to the terms of this agreement.
Agreed to and Accepted
For Publisher For Writer
As you can see, this simple one-page contract rider protects both the writer and publisher during a trial period. Essentially, the writer owes the publisher nothing during this trial period except the right to exclusively market the song. The publisher is protected by this exclusivity and it will continue for the life of the copyright should the publisher place the song. The publisher is responsible only for promoting and placing the song, not defending it legally against any litigation that may arise due to copyright infringement or other cause. Think of it as your prenuptial agreement with what might be a life-long partner.
If things work out and the song is placed by the publisher, the second contract, the industry standard song assignment of rights kicks in. This is where the song becomes the property of the publisher in exchange for exploiting the song commercially, administering the accounting and defending the copyright against all infringers. This contract is much more comprehensive and is most often tied to the length of the copyright which will span many decades.
Song Publishing Agreement
Agreement made this __ day of ___________________, 20__ between __________ (hereinafter designated as “Publisher”) and _________________ (hereinafter individually, jointly, and/or (severally designated as “Writer(s)”).
In consideration of the Agreement herein contained and out of the sum of One Dollar and other good and valuable considerations in hand paid by Publisher to the Writer(s), receipt of which is hereby acknowledged, the parties agree as follows:
1. The Writer(s) hereby sells, assigns, transfers and delivers to the Publisher, its successors and assigns, a certain heretofore unpublished original musical composition, written and/or composed by the above named Writer(s), now titled: ____________________________________including the title, words, and music, and all copyrights thereof, including but not limited to the copyright registration thereof No.__________________, and all rights, claims and demands in any way relating thereto, and the Exclusive right to secure copyright therein throughout the world, and to have and to hold the said copyrights and all rights of whatsoever nature now and hereafter for and during the full terms of all of said copyrights. In consideration of the agreement of pay royalties herein contained and other good and valuable consideration in hand paid by Publisher to the Writer(s), receipt of which is hereby acknowledged, the Writer(s) hereby sells, assigns, transfers and delivers to the Publisher, its successors and assigns, all renewals and extensions of the copyrights of said composition to which the Writer(s) may be entitled hereafter and all registrations thereof, and all rights of any and all nature now and hereafter hereunder existing, for the full terms of all renewals and extensions of copyrights.
2. The Writer(s) hereby warrant and represent that said composition is his/her (their) sole, exclusive and original work, of which the title, music and lyric was written and composed by him/her (them), that said composition is new and original and does not infringe any other copyrighted works, the he/she (they) has the full right and power to enter into this Agreement, that said composition has not heretofore been published, that said composition is innocent and does not contain any matter which, if published or otherwise used, will be proprietary right at common law or any statutory copyright or penal law, and that he/she (they) will hold harmless and defend the Publisher against any suit, claim, demand, or recovery by reason of any violation of any of the representations, warranties of covenants right or copyright or any injurious matter in the said composition, actual or claimed and the Publisher is hereby granted the right, in the event of any such claim or claims, to make such defense as may be advised by counsel and the costs and counsel fees therefore together with any damages sustained and amounts of any such settlements shall be charged to and paid for by the Writer(s).
3. In consideration of this Agreement, the Publisher agrees to pay the Writer(s) jointly, during the original and renewal terms of the copyright throughout the world as follows:
(a) In respect of regular piano copies sold and paid for at wholesale in the United States and Canada, royalties of Five (5) Cents per copy.
(b) A royalty of Five (5) Cents per copy of dance orchestrations sold and paid for in the United States and Canada.
(c) A royalty of Fifty Percent(50%) of all net earned sums received by the Publisher in respect to regular piano copies and/or orchestrations sold and paid for in any foreign country by a foreign publisher.
(d) The sum of One Dollar as and when the composition is published in any folio or composite work or lyric magazine by the Publisher of licensees of the Publisher. Such publications may be made at the discretion of the Publisher.
(e) As to “professional material” not sold or resold, no royalty shall be payable.
(f) An amount equal to Fifty percent (50%) of all net earned proceeds received and retained by the Publisher arising out of:
(i) the manufacture and sale of CDs, DVDs, phonograph records and other parts of instruments serving to mechanically reproduce the composition
(ii) the synchronization of the composition with motion pictures, and
(iii) the recording of the composition on electrical transcriptions; provided however that if the Publisher administers the licenses for the aforementioned uses through an agent, trustee of another administrator who is not in the exclusive employ of the Publisher (i.e. Harry Fox as Trustee), the Publisher, in determining its receipts shall be entitled to deduct from gross licenses fees paid by the licensees a sum equal to the charges paid by the Publisher to said agent, trustee, or administrate, and said deduction in no event to exceed Ten Percent (10%) of the license fees.
(g) Except as herein expressly provided, no other royalties shall be paid in respect of the composition.
4. The Publisher agrees to render to the Writer(s), jointly, on or about February 15th and August 15th of each year, during which income is received by the Publisher in respect of said musical composition, covering the six months ending December 31st and June 30th of each such year respectively, royalty statements accompanied by remittances for all sums shown to be due thereunder. Any such statements shall be binding upon the Writer(s) after it has been rendered to the Writer(s) unless Writer(s) have objected to it in writing during the period of One (1) Year after the date of each royalty statement by registered mail return receipt requested.
5. It is understood and agreed by and between all of the parties hereto that all royalties payable hereunder to the writer(s) jointly shall be divided and paid among them respectively as follows:
Joe Smith 50%
Jim Brown 50%
6. Anything to the contrary notwithstanding, nothing in this Agreement contained shall obligate the Publisher to print copies of said composition or shall prevent the Publisher from authorizing publishers, agents, and representatives in countries inside and outside of the United States from exercising exclusive publication and all other rights in said foreign countries in said compensation of the customary royalty basis, it being understood that the percentage of the Writer(s) monies received from foreign sources shall be computed on the Publishers net receipts; and nothing in this Agreement shall prevent the Publisher from authorizing publishers in the United States from exercising exclusive publication rights and other rights in the United States in said composition, provided the Publisher shall pay Writer(s) the royalties herein stipulated.
7. The Writer(s) hereby consent to such changes, adaptations, dramatizations, editing and arrangements of said composition, and the setting of words to the music and of music to the words, and the change of title as Publisher deems desirable. The Writer(s) hereby waive any and all claims which they have or may have against the Publisher and/or its associated, affiliated and subsidiary corporations by reason of the fact that the title of said composition may be the same or similar to that of any musical composition or compositions hereto or hereafter acquired by the Publisher and/or its associated, affiliated and subsidiary corporations.
8. The Writer(s) individually and jointly consent to the use of their respective names, likenesses and biographical material and the title of said musical composition in connection with the titles and contents of folios of musical compositions containing said composition with other musical compositions and in connection with publicity and advertising concerning the Publisher, its successors, assigns or licensees. Writer(s) agree that the use of said names, likenesses, biographical and the title may commence prior to publication and may continue so long as the Publisher shall own and/or exercise rights in said composition.
9. Written demands and notices other than royalty statements provided herein shall be sent by registered mail.
10. Any legal action brought by Publisher against any alleged infringer of said composition shall be initiated and prosecuted at the Publishers sole expense, and of any recovery made by it as a result thereof, after deduction for the expense of litigation, a sum equal to Fifty Percent (50%) shall be paid to the Writer(s).
(a) If a claim is presented against the Publisher in respect of said composition, and because thereof the Publisher is jeopardized, it shall thereupon serve written notice upon the Writer(s), containing the full details of such claim known to the Publisher and thereafter until the claim has been adjudicated or settled shall hold any monies coming due the Writer(s) in escrow pending the outcome of such claim or claims. The Publisher shall have the right to settle or otherwise dispose of such claims in any manner as it, in its sole discretion, may determine. In the event of any recovery against the Publisher, either by way of judgment or settlement, all of the costs, charges, imbursements, attorney fees and the amount of the judgment or settlement may be deducted by the Publisher from any and all royalties or other payments therefore and thereafter payable to the Writer(s) by the Publisher or by its associated, affiliated or subsidiary corporation.
(b) From and after the service of summons in a suit for infringement filed against the Publisher with respect to said composition any and all payments thereafter coming due the Writer(s) shall be held by the Publisher in trust until the suit has been adjudicated or settled, then be disbursed accordingly, unless Writer(s) shall elect to file an acceptable bond in the sum of payments in which event sums due shall be paid Writer(s).
11. “Writer(s)” as used herein shall be deemed to include all authors and composers signing this agreement.
12. The Writer(s) each for him or herself, hereby irrevocably constitute and appoint the Publisher or any of its officers, directors, or general manager, his (their) attorney and representative, in the names(s) of the Writer(s), or any of them, or in the name of the Publisher, his successors and assigns, to make, sign, execute, acknowledge and deliver any and all instruments which may be desirable or necessary in order to vest in the Publisher, its successors and assigns, any of the rights herein referred to.
13. The Publisher shall have the right to sell, assign, transfer, license or otherwise dispose of any and all its rights in whole or part under this Agreement to any person, firm, or corporation, but said disposition shall not affect the right of Writer(s) to the royalties herein set forth.
14. This agreement shall be construed only under the laws of the State of ____________. If any part of this agreement shall be held invalid or unenforceable, it shall not affect the validity of the balance of this Agreement.
15. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successor’s interest, legal representatives and assigns, and represents the entire understanding between the parties.
In Witness Whereof: the parties have hereunder set their names the day and year first above written.
By: ____________________________ By: __________________________
Song Publishing Agreement Summary
Let’s look at a few of the more salient clauses in the contract. Don’t be put off by the amount of “One Dollar” at the beginning of the contract. It is a common figure that is found in contracts where the payment from one party to the other is in the future and somewhat speculative. Specifying one dollar doesn’t value the deal, it just specifies that something of specific value, albeit a low one, changed hands at signing. Make sure to frame your one dollar advance.
Paragraph 2: As a writer, you should pay close attention to Paragraph 2. In this paragraph you make the claim to be the author and that you are not infringing on any other copyright. It also makes the claim that no other publisher has been assigned rights. This brings to mind an old Nashville anecdote.
A handsome young singer-songwriter carrying a guitar enters the office of an old and jaded Nashville publisher.
“Mr. Publisher, I’ve got this great song you’ve got to hear. You’re gonna love it.” “Okay kid, I’ll bite. Show me what you’ve got.”
The kid whips out his guitar and plays the song. It is a very good song; a potential hit. The kid has a good voice and is making a great delivery. The publisher is impressed.
“Well sonny, you’re right there. It’s a dandy of a song; still a little rough but shows a lot of promise.”
“A little rough?” asks the songwriter.
“It just needs a bit of tweaking. You know add a word here take another away there. Just small time touch up but I’ll tell you what. I’ll go out on a limb and publish this song for you. I’ll shape it up with some other words and we will co-write. Now don’t get me wrong, your name will always appear first under the composer’s name but I will get some credit too.”
“That sounds okay to me but I didn’t hear you talk about any money or recording or nothing like that.”
“I can see you know your stuff and are going to strike a hard bargain so let’s not beat around the bush. I will share co-authoring with you. I will publish the songs for you under the standard agreement. In addition, and I hope you are listening, I will record the song and pay you a royalty of ten percent of the net profits from the sales of your recording. How’s that for a great deal?”
The musician scratches his head for a moment, “Sounds like a pretty good deal to me but I still haven’t heard about any money, as in soon.”
“I’m trying to help you here son. I’m bringing years of experience and connections to the table but to show my fairness here’s $100 as a show of good faith. That’s all I have on me right now. Just sign here.”
“Now you’re talking! You got a deal.”
After signing the deal the kid leaves and the publisher calls his friend.
“Murray you aren’t gonna believe this. I just heard the best tune in a year and got the kid to sign over half the writer’s stake and all the publishing. He also let me get away with the ten percent of net profit royalty clause on a recording deal. There won’t be much net profit after we promote the song over “recoupable” drinks at our 5-star hotel in Cannes, at MIDEM in France next January. All this for only $100! Poor idiot just lost a ton of money and walked out of here grinning ear to ear! There’s a sucker born every minute.”
Outside a car pulls up to the curb and the songwriter gets in. A friend is driving.
“Well did he try to screw you?”
The songwriter nods, “Yup he sure did. Told me about what a pal he was as he bent me over. I sold him half the song and all the publishing for $100.”
The songwriter opens a shoebox on the seat and tosses in the hundred dollar bill to join many others. “That’s the fifteenth publisher today that tried to screw us on the same song. There’s a sucker born every minute.”
The updated version of this song has the Harvard MBA publisher pays $10,000 for the rights to “Blue Eyes Crying in the Rain,” a song he’s never heard.
The bottom line is that if you are in violation of someone’s copyright and they sue you, you have to join your publisher in the defense. After all, it is you who is being accused of violating the copyright. In the event that the entity doing the suing prevails, you are on your own as such a judgment would find you in violation of your agreement with the publisher.
Paragraph 7: This allows the publisher to modify the song in any way they see fit to exploit it. This is why you hear Beatle’s songs with Ford Explorer lyrics. If Lennon/McCartney still had rights to the catalog instead of Michael Jackson, this probably wouldn’t happen. When you sign the song away to a publisher you are giving them the go ahead to maximize earnings by whatever means. This used to be called “selling out” and is now part and parcel of the music business landscape.
Paragraph 10: This paragraph reflects what things will look like if your publisher winds up suing someone else for violating your copyright. The publisher will take on a much more aggressive stance as the infringement litigation might mean some monetary damages paid by the defendant upon the publisher and writer prevailing in court.
Paragraph 13: This makes the song and the publishing agreement assignable to other third parties. If the publishing company gets gobbled up by a corporate multi-national, the catalog and your song go with it. This is how Michael Jackson came to own the Beatles catalog; when Apple Music put the catalog on sale, Jackson outbid Paul McCartney.
There are other variations in publishing deals that have come onto the playing field in recent years. They go under names like “Song Royalty Sharing Agreement,” and “Media Rights Agreements.” You will find examples of these contracts on the CD accompanying this book. They are essentially the same as a single song agreement, but some of them bring more to the table such as a publisher’s duty to promote the song in certain ways (i.e. cut demos) and performance kick-outs.
Another common songwriter scenario is becoming a staff writer for a publisher. This can be as formal as actually showing up to an office and sitting down and writing tunes either alone or with a team of staff writers. Collaborative environments have brought us some of the greatest hits ever. Let’s take a look at an exclusive deal between the songwriter and his publisher.
Exclusive Songwriter Contract
This Agreement is for the services of music and/or entertainment described below between the undersigned Artist(s) [includes accompanying musicians and/or entertainers as described below, hereinafter referred to as “Writer(s)”] and the Publisher who is to provide services BSP11-30880-C4F0G-1R7FD-A0H08 hereinafter referred to as “Publisher”.
For and in Consideration of mutual covenants set forth, the parties do hereby agree as follows:
Term: The term of this Agreement shall commence today and continue until _________, 20__.
Employment: Publisher employs Writer to render services as a songwriter and composer. Writer hereby accepts such employment and agrees to render such services exclusively for Publisher during the length of this contract, upon the terms and conditions set forth.
Grant of Rights: Writer grants to Publisher the results and proceeds of Writer’s services, including, but not limited to the titles, words, and music of any and all original arrangements of musical compositions in the public domain. Attached as Exhibit A is a list of musical compositions written and made as part of this Agreement.
Writer acknowledges that included within the rights and interests is Writer’s irrevocable grant to Publisher, its successors, licensees, and sublicensees, of the sole and exclusive license, privilege, and authority of said original musical compositions and original arrangements in the public domain, whether now in existence or created during the term as follows:
(a) To perform said musical compositions publicly, whether for profit or otherwise, in public or private performance, radio broadcasting, television, or any and all means;
(b) To substitute a new title or titles, to make any arrangement, adaptation, translation, dramatization or transportation, and to add new lyrics to the music of any said compositions or new music, in whole or in part, as Publisher may deem expedient or desirable. However, nothing contained herein shall allow Publisher to make any changes in Writer’s recorded performances. In the event Publisher is directly involved in the printing of sheet music containing Writer’s musical compositions, Publisher agrees to make all reasonable effort to produce a reproduction of Writer’s original recording of such composition as accurately as possible.
(c) To secure copyright registration and protection of said compositions in Publisher’s name at his or her own cost, including any and all renewals and extensions of copyrights.
(d) To make or license others to make, master records, transcriptions, sound tracks, pressings, and any other mechanical, electrical or other productions of said compositions, in whole or part, in such form or manner and as frequently as Publisher’s discretion shall determine. This includes the right to synchronize the same with sound motion pictures, and the right to manufacture, advertise, license or sell such reproductions for any and all purposes, including public and private performances, radio broadcasts, television, sound motion pictures, wired radio or cable television, phonograph records and any and all other means or devices.
(e) To print, publish and sell, and to license others to print, publish and sell, sheet music, orchestrations, arrangements and other editions of said compositions in all forms, including any or all of said compositions in song folios, song books, mixed or lyric magazines with or without music.
(f) Without any additional compensation, Writer grants Publisher the perpetual right to use and publish and to permit others to use and publish Writer’s name (including any professional name adopted by Writer), Writer’s photograph or any other likeness (which shall be approved by Writer), biographical material concerning Writer, and the titles of any and all of the compositions in connection with the printing, sale, advertising, performance and distribution of the compositions. This right shall be exclusive during the term of this agreement and nonexclusive thereafter. Writer grants Publisher the right to refer to Writer as Publisher’s “Exclusive Songwriter and Composer” or any other similar appropriate designation, during the term of this contract.
Power of Attorney: Writer hereby authorizes and appoints Publisher, or any of its officers, Writer’s true and lawful attorney (with full power of substitution and delegation), in Writer’s name, and in Writer’s place and stead, or in Publisher’s name,
Compensation: Provided the Writer shall faithfully and completely perform the terms, covenants and conditions of this Agreement, Publisher hereby agrees to provide the following compensation to Writer for the services to be rendered under this Agreement:
(a) Ten percent (10%) of the wholesale selling price per copy for each piano copy and dance orchestration printed, published and sold in the United States and Canada by Publisher or its licensees, for which payment has been received by Publisher, after deduction of returns.
(b) Twelve and one-half percent (12.5%) of the wholesale selling price of each printed copy and edition printed, published and sold in the United States and Canada by Publisher or its licensees, for which payment has been received by Publisher.
(c) Fifty percent (50%) of any and all net sums actually received by Publisher (less any costs for collection) from the exploitation in the United States or Canada by the licensees of Publisher of mechanical rights, electrical transcription and reproduction rights, motion picture and television synchronization rights.
(d) Writer shall receive his public performance royalties directly from the performing rights to which he is affiliated (i.e. American Society of Composers, Authors and Publishers, Broadcast Music Inc.) and shall have no claim whatsoever against Publisher for any royalties received by Publisher from any performing rights society which makes payments directly to writers, authors and composers.
(e) Fifty percent (50%) of any and all net sums, after deduction of foreign taxes, actually received (less any costs for collection) by Publisher in the United States from sales, licenses and other uses of the subject musical compositions in countries outside the United States and Canada (other than public performance royalties as herein mentioned in (d) above) from collection agents, licensees, sub publishers or others, whether or not same are affiliated with, owned or controlled by Publisher.
(f) Publisher shall not be required to pay any royalties on professional or complimentary copies which are distributed gratuitously to performing artists, orchestra leaders and disc jockeys or for advertising, promotional or exploitation purposes. Furthermore, no royalties shall be payable to Writer of consigned copies unless paid for, and not until such time as an accounting therefore can be properly made.
(g) Except as herein expressly provided, no other royalties or monies shall be paid to Writer.
Accounting: Publisher shall compute the total composite royalties earned by Writer on or before September 30th for the semi-annual period ending the preceding June 30th, and shall thereupon submit to Writer the royalty statement for each period together with the net amount of such royalties, if any, as shall be payable after deducting any and all recouped advances and chargeable costs under this Agreement or any other agreement between Writer and Publisher. Upon the submission of each statement, Publisher shall have the right to retain, with respect to print sales as a reserve against subsequent charges, credits or returns, such portion of payable royalties as shall be necessary and appropriate in its best business judgment.
Entire Agreement. This Agreement supersedes any and all prior negotiations, understandings, and agreements between the parties. Each of the parties acknowledges and agrees that neither party has made any representations or promises in connection with this Agreement nor the subject matter hereof not contained herein.
Collaboration and Separate Agreements:
(a) Whenever Writer shall collaborate with any other person in the creation of any musical composition, and such musical composition shall be subject to the terms and conditions of this Agreement, Writer agrees that prior to the collaboration, this person shall be advised of this exclusive agreement. In the event of such collaboration with any other person, Writer shall execute a separate songwriter’s agreement, setting forth the division of the songwriter’s share of income between Writer and such other person, and Publisher shall make payment accordingly.
(b) If Publisher so desires, Publisher may request Writer to execute a separate agreement in Publisher’s customary form with respect to each musical composition hereunder. Upon such request, Writer shall promptly execute and deliver such separate agreement and Publisher shall have the right to execute such separate agreement in behalf of the Writer. Such separate agreement shall supplement and not supersede this Agreement. In the event of any conflict between the provisions of such separate agreement and this Agreement, the provisions of this Agreement shall govern. The failure of either of the parties to execute such separate agreement, whether requested by Publisher or not, shall not affect the rights of Publisher to all the musical compositions written and composed by Writer.
Writer’s Services: Writer agrees to perform the services required solely and exclusively for and as requested by Publisher. Writer shall promptly and faithfully comply with all requirements and requests made by Publisher. Writer shall deliver a manuscript copy of each material composition immediately upon the completion or acquisition of such musical composition. Publisher shall use reasonable to exploit all compositions hereunder, but Publisher’s failure to exploit any or all said compositions shall not be deemed a breach of this contract.
Unique Service: Writer acknowledges that the services rendered hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them a particular value, the loss of which cannot be reasonably or adequately compensated in damages in any action at law, and that a breach by the Writer of any of the provisions of this Agreement will cause Publisher great and irreparable injury and damage. Writer expressly agrees that Publisher shall be entitled to the remedies of injunction and other equitable relief to prevent a breach of this Agreement or any provision hereof which relief shall be in addition to any other remedies for damages or otherwise, which shall be available to the Publisher.
Governing Law: This Agreement shall be governed by the laws and in the courts of the State of _____________ and by the laws of the United States, excluding their conflicts of law principles. Any dispute or legal proceeding regarding the Agreement shall take place in the county of _____________, in the State of _________________.
This Agreement and option shall be considered renewed at the end of the period herein unless Artist receives a written notice with the intent to terminate this contract. Any questions relating to this agreement shall be interpreted in accordance with the laws of the State of ______________________.
Your signature below will constitute this as a binding agreement between us.
Agreed to and Accepted
The Mechanical License
The last contract we will address will be one of the core documents of the publishing industry: the mechanical license. This is the license that the song owner, usually the publishing company, grants to record companies and artists for permission to record the song.
NOTE: You will have to provide proof of the mechanical license for each song on a CD when you send the CD to a reputable CD manufacturer. If you own the songs, grant yourself the license. If you are covering someone else’s material you will have to include the mechanical you received from them when replicating.
When a song is created, it is owned by the writer or publisher. The rights for the first publication of the song are negotiable. If you have a killer song that Artist X’s producer has just got to have, you can charge all the market will bear. The first recording is the only recording that you have this leverage with. All subsequent recordings (all the other covers of the song) have their mechanical rate set by law. Congress sets the statutory mechanical rate and it is adjusted upward on occasion to reflect inflation and other economic realities. The statutory mechanical rate at the time of this writing (March 2008) is:
9.10 cents for songs five minutes or less or 1.75 cents ($.0175) per minute or fraction thereof over five minutes.
5:01 to 6:00 = $.105 (6 x $.0175 = $.105)
6:01 to 7:00 = $.1225 (7 x $.0175 = $.1225)
7:01 to 8:00 = $.14 (8 x $.0175 = $.14)
You can check on the current mechanical rate by visiting harryfox.com[em]the largest mechanical clearing agency in the United States. If fact, it is far easier to pay a few dollars extra and pay your mechanical fees on the web than going directly to the publisher via the mail.
As a writer or publisher, you could charge Artist X $5,000 for the right to first release and the statutory mechanical rate thereafter. So if Artist X is the first to release the song and makes 5,000 CDs, here’s how the mechanical formula would work assuming the song is under five minutes in duration:
Initial First Release Fee: Rights to First Release $5,000.00
Statutory Mechanical Fee: 5,000 copies @ 9.10 cents ea $ 455.00
Total for the First Run: $5,455.00
Another point that bears mention before we look at the simple and brief mechanical license is that the statutory rate is the ceiling that the publisher or writer can charge. This does not mean that the publisher or writer cannot charge less. Situations sometime arise where a reduced mechanical rate is required to make a recording deal or overseas license work. In fact, with dealing with foreign markets expect to earn half of what you would in your home market. Major labels are famous for requesting or demanding a reduced mechanical rate unless of course they own the publishing.
Recording – Mechanical License
This Agreement made and entered into this ______ day of 20__, by and between ___ (Publisher)______ (hereinafter referred to as the “Owner”) and ____(Record Label)____ (hereinafter referred to as the “Licensee”).
Owner hereby grants to Licensee the right to record, reproduce, market and sell the musical composition now titled:
under the following terms and conditions:
1. Owner warrants and represents that it is the sole and exclusive proprietor of a valid copyright or license in the musical composition composed by:
(hereinafter referred to as the “Composition” or “Musical Composition”), and that Owner has the right to grant the license herein contained.
2. Owner grants to Licensee the nonexclusive right, privilege and license, during the term of the copyright of said Composition and all renewals and extensions thereof, to use the Composition, and to make and/or use arrangements thereof, in the manufacture and sale of parts of instruments serving to reproduce the Composition in the United States.
3. Licensee shall pay to Owner royalties at the following rates on all copies containing the above-named musical Compositions manufactured, sold and paid for in the United States during the term of the Composition’s copyright and all renewals and extensions thereof:
a) For each phonorecord manufactured, sold, and paid for, the Licensee shall pay the Owner Nine Point One (9.1) Cents.
(b) The term “phonorecords” or “records,” as used herein, means any and all methods of mechanically reproducing the musical Composition including, but not limited to phonograph records, cassette tapes, digital audio tape, compact disc, DVD and any and all methods of reproducing the Composition, now known or to later come into existence.
4. Licensee agrees to render to Owner quarterly statements, and payments herefore, of all royalties payable hereunder, within 45 days after March 31st, June 30, September 30, and December 31, for each quarter for which any such royalties accrue pursuant to the terms hereof.
5. (a) As to records manufactured in the United States and sold by Licensee for export to other countries, royalties shall be payable pursuant to this contract, except with respect to records exported to countries which require the payment of copyright royalties in connection with the import or sale of such records, in which event no royalties shall be payable hereunder.
(b) As to all mechanical devices (such as masters, mothers and stampers) which are exported by Licensee to companies in other countries for use by such companies for the manufacture and sale of records, a royalty of ONE HALF the United States royalty rate shall be payable to the Owner.
6. Owner indemnifies, and shall hold harmless, Licensee from loss or damage (a) arising out of or connected with any claim by a third party or parties which is inconsistent with any of Owner’s warranties in paragraph 1 hereof, or (b) by reason of any adjudication invalidating the copyright of the Composition.
7. This contract is assignable by either party as long as the royalty rate herein stated is paid to Owner and shall be binding upon the heirs, legal representatives, successors and assigns of the parties hereto.
Agreed to and entered into by the parties hereto.
By ______________________ By ___________________________
As you can see, the mechanical license is one of the simplest contracts you will find and if you use the Harry Fox online option, you plug in your credit card and the mechanical is produced as an Acrobat file you can print out.
Music publishing is a major component of the industry and now that we have something of a handle on the songs, let’s take a look at the relationship between the songs, the artist and our new friend the producer.