Publishing Agreements

As with recording agreements, publishing agreements can be long and complicated documents. Some thought should be given as to the timing of signing a publishing agreement. Publishers can be very useful to artists/writers looking for a recording deal as the publisher will have plenty of contacts. On the other hand, the deal offered by a publisher to an "unsigned" artist will probably be less attractive than a deal offered to a "signed" artist/writer.

What follows is very much a summary of the types of terms which arise in a typical publishing agreement. These should be read in conjunction with the notes on recording agreements.

Term

As with recording agreements, the term will be for an "initial period" usually of a one year, followed by option periods of one year. During each period the writer will be obliged to write a certain number of songs which the publishing company will usually want recorded, either by the writer or a third party, and commercially released by an established record company. This is known as the "Minimum Commitment".

Minimum Commitment

A writer will be obliged to write a certain amount of songs during each period of the agreement. If the songs are not recorded and released by a record company, the value of the songs to the publisher is minimal. Accordingly, the publisher will require that some or all the songs are recorded and released by an established record company. If for some reason some or all the songs are not recorded then the publisher will either extend the term for a short period or reduce the advance payable to the writer. Alternatively, the publisher may decide not to exercise any further options on the writer's career.

Territory

Usually the writer will sign "for the world". As with recording agreements, a successful writer may be able to negotiate a "split territory" deal.

Advances

From a financial point of view, the main difference between a recording agreement and a publishing agreement is the cost to the company of acquiring rights from the artist or writer. In a recording agreement, the record company is paying for the recordings to be made and then incurring large marketing and promotion costs on top. All these costs, in addition to an advance, are recouped by the record company from the artist's royalties. Accordingly, if the recordings sell badly the record company will probably lose money.

Publishers on the other hand acquire copyrights in compositions as compared to the sound recordings of those compositions. It does not cost anything (other than a writer's skill and creative energy) to write a song. Therefore, the only cost to a publisher when acquiring songs, and therefore its only risk, is the payment of an advance to a writer.

Advances are simply a pre-payment by the publisher of the writer's royalties. The advance is recouped from royalties otherwise due to the writer. The only exception to this is "the writer's share" of performance income which is collected by the Performing Right Society ("PRS") and paid to the writer direct irrespective of the recoupment position.

Royalties

There are generally speaking four types of income which the publisher will collect on the writer's behalf. These are mechanical royalties, synchronization fees, public performance income and sheet music sales. With the exception of sheet music sales which usually attracts a royalty of 10-12.5%, the writer can expect to receive between 55% and 90% of the publishers income. The most important point is the definition of "income" for this purpose. The royalty will either be calculated "at source" or on "net receipts". The difference between each definition, in financial terms to the writer, can be enormous and the writer should seek an "at source" deal if possible.

Copyright

Most publishers will want to own the copyright in the writer's songs for the life of copyright. So far as the writer is concerned, this means forever. Obviously if a writer is giving his songs to the publisher for life of copyright it is important that the publisher is contractually obliged to exploit the songs to their maximum potential. To a certain extent, the writer's songs are his/her "pension" as the popularity of some songs never diminishes and others have a habit of "coming round again". The importance of this to the writer cannot be underestimated.

For this reason, lawyers have, in recent years, been able to pursuade publishers to allow the copyright to "revert" to the writer after a certain period of time. Usually this is somewhere between 5 and 20 years after the expiry of the Term. Furthermore, some publishers will agree to allow the copyright to revert if they have not succeeded in obtaining a recording agreement for the writer or failed to earn the writer an agreed level of income within a specified period of time.