|In the past seventeen years
that I have been in the Music Publishing and Licensing field I have continually
found there that is an intense need to try to help educate Artist's and
Songwriter's on music publishing basics in order to help teach them firsthand
-how this business works --SO that THEY are better prepared to understand
the who,what, when where and why of contracts,licenses and royalties and
the inner mechanisms of what drives the income wheels in music. I have found
that although there are many knowledgeable books on this subject--some are
still very hard to comprehend (for the layman)-due to complex detailed use
of the music legal terms and a lack of a simple explanation of the basic
In this months new column I have decided to provide a sample excerpt from my own published textbook -that I use in teaching the Music Publishing Administration Workshop--entitled--'Everything You Should Know About Publishing- But Were Afraid To Ask'. (This workshop has been a featured class @ National Academy Of Songwriters and The Songwriters Guild Of America)..Also (towards the Iast page) I have also added some additional 'music eze' terms that I find are commonly used in the business- and would be helpful to be familar with --to all writers and aspiring tv/film composers.
Why does Music Publishing seem so hard to understand ?
Because it's actually a complex system of terms and terminology --but IT IS based on simple principles : AND ONCE YOU KNOW the BASICS --You can learn to master MOST of the necessary and important tasks in licensing ,protecting and exploiting your material .
THE MUSIC BUSINESS TERMS GLOSSARY
A LAYMAN'S SIMPLE GUIDE to comprehending Music Publishing )
THESE are some of the TERMS commonly used in the business of music publishing and licensing that you should be familiar with :
1.SYNC RIGHTS (Synchronization Rights) (The right to synchronize and USE your SONG in timed relation with and in a film or television show )REMINDER *THE *SYNC RIGHT* IS THE SONG USE
2.MASTER RIGHTS (Master Use Rights) ( The right to use your Master Recording of the song ) This means the DEMO (Album,CD,DAT) that the song is embodied on.
REMINDER * MASTER USE* IS THE USE OF THE RECORDING ITSELF
(The following example Given -is @ 100% Publishing)...If you divide 100% of The Song in Half -- the remaining 50% IS THE PUBLISHERS SHARE ) -It is then referred to as 100% PUBLISHERS SHARE . REMINDER:This is the part of the song YOU assign to a Publisher-OR the percentage(part) -you keep IF you RETAIN YOUR PUBLISHING RIGHTS.
4. WRITERS SHARE (The remaining share left is YOUR WRITERS SHARE)
Example : If the "Other Half" = (OF THE PUBLISHING) isn't 'assigned' (SIGNED WITH) a Publisher IT THEN BELONGS TO EACH WRITER OF THE SONG PROPORTIONATELY -from THEIR "OWNED" "WRITERS PERCENTAGE OF THE SONG".--REMINDER * The WRITERS SHARE is never assigned .
The only 'recognizable' assignment of a Writers Share according to ASCAP ,BMI & SESAC is by (succession) (inheritance).These organizations will not accept this assignment or collect 'Performance Monies " for a second party (other than your legal heirs).
5.TO NEGOTIATE PUBLISHING (to open discussion and come to an agreement on WHO gets WHAT OF THE PUBLISHERS SHARE- and HOW IT ITS GONNA WORK CONTRACTUALLY : IF YOU DO NOT ASSIGN THE WHOLE PUBLISHING SHARE "you've negotiated for a 'piece ' of the remaining Publishing Share". So --"ON TOP OF" your Writers Share the Publisher has agreed to pay you ALSO an negotiated percentage of HIS SHARE . This percentage can be anything from 5% on up -- as long as HE'S left with enough percentage to make this deal still logically financially sound . As far as the ADMINISTRATIVE RIGHTS (right to license and CO-CONTROL your song) that TOO must be negotiated . Otherwise you may get a percentage of the Publishers Share BUT THE PUBLISHER "ONLY" MAY LICENSE AND CONTROL THE SONG --and thereafter HE PAYS YOU -YOUR WRITERS SHARE PLUS" any additional -DUE TO YOU- Publishing Share-- from what revenue HE receives . .*See "Co-Publishing /Co-Administration Deal #11b.
6. TERM AND --REVERSION CLAUSE
When you sign a Publishing contract it has a length of time (TERM) DURING WHICH THE PUBLISHER HAS TO "GET IT PUBLISHED"(i.e. -Recorded and slated for commercial release and distribution by a record company / OR-placed on a TV Show which uses then broadcasts the song /OR- a movie that's gonna be theatrically shown or broadcast on TV or both).IF THE PUBLISHER DOESN'T GET IT "PUBLISHED" (as above) during the term length allowed in the contract (songwriters agreement) "THEN --- THE PUBLISHING RIGHTS GRANTED IN THE CONTRACT SHOULD AUTOMATICALLY REVERT BACK TO YOU ..The REVERSION CLAUSE MUST BE WRITTEN INTO A PUBLISHING CONTRACT. EXCEPT FOR "The Songwriters Guild Contract" where the term is automatically ONE YEAR -(yes this too can be modified in writing -longer-- BUT ONLY by agreement between Publishers and Writer and duly initialed..The longest TERM recommended should never be more than -TWO YEARS. THE REVERSION CLAUSE IS A "MUST " and is a negotiable point in your contract between the PUBLISHER and WRITER .
This is the RIGHT TO RECORD THE SONG TO SELL IT ON A RECORD,OR LASER DISC,MINI DISC ,VIDEO,CD ROM etc..,
THE " MECHANICALS " are the SALES MONIES from the sales of the record or above medium.
8.PRINT AND FOLIO RIGHTS
The right to use the song(s) as in Printed Sheet Music,Printed Songbook Folios. Note: The royalty rate from the Publisher on Print Sales to the WRITER is usually less than other usages--AS-sales of the above generate much less than other other income usages TO THE PUBLISHER. Of course there are exceptions to the rule --but generally the PRINT ROYALTY is 12-1/2%-to 15% only.(Rather than 50% OR HALF --as in all other royalties-that Writer receives from the Publisher).
"Subpublishing"---ex. given-THE PUBLISHER GETS YOU A RECORD (or Film Usage)-HE "PUBLISHES" the song--then he makes a "SUB-PUBLISHING DEAL(Agreement) with anothe Publisher in another country (i.e-territory)-(Europe,Japan,etc.)-THEY GIVE YOUR PUBLISHER a ('recoupable advance payment) as an incentive for them to represent and exploit the song(s) for licensing (more record's-tv ,etc) in that country. The SUB-PUBLISHER also COLLECTS ALL THE MONIES IN THAT COUNTRY AND PAYS YOUR PUBLISHER (retaining an agreed upon percentage themselves)--THEREAFTER YOUR PUBLISHER PAYS YOU ON FOREIGN ROYALTIES HE RECEIVES @ 50%(HALF)--after any administrative fees charged by the Sub-Publisher (or a licensing agency in lieu of the Sub-Publisher) -or foreign money conversion charges -'are deducted'.
The following "performance rights licensing agencies" COLLECT YOUR PERFORMANCE BROADCAST MONIES -(ASCAP -BMI-SESAC )--- This is the (Performing Broadcast Right 'Fees' that they collect ) for the performance use of your song in RADIO,TV,THEATERS,PLAYS,NIGHTCLUBS,FILMS,LIVE CONCERTS,-ON AIRLINES,MUZAK,CONCERTS etc.. These perfornance collection agencies charge the USERS (broadcasters,radio stations )= a LICENSE FEE AND PAY THE WRITERS AND PUBLISHERS BASED ON THE TIMES AND USAGES IT PLAYS-(They have a way of logging it and sampling how and when its used -as well as their own fee configuration on how much is charged to the user and reported and paid ) to the PUBLISHER and WRITER ...
Ex .Given: When you are first "Published" (defined above in Clause #6) YOU MUST THEN JOIN ("affiliate") with one of these performing rights agencies AS A WRITER (OR IF YOUR 'SELF-PUBLISHED" YOU JOIN AS A NEW PUBLISHER and WRITER 'simultaneously). IF YOUR SIGNED TO A PUBLISHER your list of songs that he has under contract are registered with that same agency in the Writers Name. IF YOUR SELF-PUBLISHING-YOU REGISTER EACH WORK TO YOUR OWN COMPANY)" thats how ASCAP/BMI/SESAC keeps track of who owns WHAT ,IN WHAT PERCENTAGES,AND WHO GETS PAID WHAT as they collect on your behalf. Be sure if your signing with a Publisher that his affiliated company is also ASCAP if your gonna join ASCAP-or BMI if your BMI etc-(advise him of your 'pending'choice) beforehand).ONCE YOUR RECORD IS OUT -OR TV SHOW IS BROADCAST WITH YOUR SONG*(see Cue Sheet #15) If you are NOT Affiliated with ONE of these agencies-YOU WILL NOT BE PAID YOUR PERFORMANCE INCOME ROYALTIES...
ASCAP-BMI & SESAC pay the WRITERS THEIR SHARE BOTH DIRECTLY AND SEPARATELY FROM THE PUBLISHERS SHARE . NOTE-YOU CANNOT ASSIGN ANY PART OF YOUR WRITERS SHARE TO ANYONE AND SHOULD NEVER DO SO-THESE AGENCIES WILL NOT PAY ANYONE BUT THE WRITER OR HIS HEIRS OR SUCCESSORS THE "WRITERS" SHARE.
There are TWO TYPES OF CO-PUBLISHING DEALS: a) CO-PUBLISHING where the PUBLISHER exclusively administrates ,controls licenses and collects on the song "ONLY" -and then HE PAYS YOU A "pre-negotiated" portion of HIS acquired PUBLISHING SHARE (on top of your WRITERS SHARE). (This means that your share of Publishing GOES THROUGH HIS PUBLISHING FIRM-ascap-bmi-'wise' ONLY).
12.(b) CO-PUBLISHING/CO-ADMINISTRATION DEAL
THIS IS WHERE BOTH "YOU" AND ANOTHER PUBLISHER EACH HAVE THE RIGHT (by signed agreement) TO ADMINISTRATE, LICENSE AND CONTROL "YOUR OWN" PUBLISHING SHARE (percentages are pre-negotiated) AND EACH RESPECTIVE SHARE IS REGISTERED TO ,PAID THROUGH AND GOES THROUGH YOUR "OWN PUBLISHING "COMPANIES SOLELY AND DIRECTLY. Thereafter -everytime someone wants to record or use the song-THEY MUST CONTACT BOTH PUBLISHER'S- FOR NECESSARY LICENSES TO BE GRANTED.In THIS SITUATION " Co-Pub/Co-Admin. Deal- " both parties have the right to license its own shares in the song. Note: IF YOU INTEND TO PUBLISH YOURSELF -AND YOU'RE NOT EXPERIENCED in Licensing and Administration ,you might want to consider making an ADMINISTRATION DEAL *see below.
THIS ONLY APPLIES WHEN AND WHERE YOU "OWN" ALL OF YOUR PUBLISHING (Or a partial share-but you control 'that share' in a co-pub/co-admin. deal) AND YOU HIRE AN (Experienced) ADMINISTRATOR to handle your PUBLISHING COMPANY EXCLUSIVELY.They will license administrate,and control on your behalf -as well as handling all necessary documentation,registrations, royalties,and copyright work.They work for you after you have material that has been published.
Administrator's customarily charge 10% to 20% of any and all revenue received from the Publisher Share.-And some administration agreements sometimes provide additional terms and conditions for extra percentages for "further exploitation of the song-ie,"(they'll get you more recordings-or TV usages etc). An Administration Deal term length is usually three years .It should be renewable only by mutual agreement of both parties.An attorney should also advise you on this agreement prior to signing it.
14.SONG SHOPPING AGREEMENTS
This is a letter of intent from Writer to PUBLISHER or vice versa-spelling out the terms and conditions and TIME LIMIT THE PUBLISHER HAS TO GET THE SONG PLACED.These agreements can be extremely specific with percentages of Publishing you'll be granting WHEN Publisher gets a cut (or placement) in the set time period specified.(And it will most likely contain further options that provide -IF HE gets a hold on the song before the agreement expires to extend the agreement) .NOTE :Be aware that a shopping agreement can also be very vague in its lack of straight language -and that can and might work against your best interests if you've not consulted a lawyer prior to signing this.The period terms can be usually anywhere from 3 months (6 mos is more common) and one year is the norm. An AUTOMATIC REVERSION CLAUSE MUST BE BUILT IN TO THIS AGREEMENT ALWAYS.
15. ARTIST SHOPPING AGREEMENTS
This is a written agreement between an ARTIST and a individual,manager, or publisher to SHOP the ARTIST for a Recording contract with a Record Label.The terms and conditions written into this type of 'shopping agreement' can vary widely and an attorney must advise you as to whats fair and precisely what you'll be giving up if a deal is secured on your behalf. Terms can be percentages of publishing,or a finders fee of the advance monies paid to the artist by a label .There are no set terms-its always different depending on the person you're dealing with.Even Attorneys who shop Artist's have special agreements with their own terms built in.
16. STANDARD SONGWRITERS CONTRACT
"THERE IS NO "STANDARD SONGWRITERS CONTRACT "-
THIS is both a misleading and archaic term. REMEMBER -EVERY CONTRACT "YOU'RE EVER OFFERED IS NEVER THE SAME" -..The Publisher may lead you to believe that its 'a standard songwriters agreement ' -BUT EVERY CLAUSE,EVERY PERCENTAGE CAN AND WILL BE MODIFIED BY THE INDIVIDUAL WHO DRAFTS IT! So -Again-AN ATTORNEY MUST BE CONSULTED .If you've agreed to assign 100% of your Publishing (thats the other 50% -left after your writers 50% )YOU STILL NEED TO MAKE SURE THAT ITS CONTINGENT ON CERTAIN SPECIFIC THINGS --such as a record release within a certain time limit by a Recording Artist on a major label or independent label with good commercial distribution,or a motion picture placement ,etc,,.(if that's WHAT you're consenting to) ....and it MUST HAVE AN AUTOMATIC REVERSION CLAUSE IN CASE THE PUBLISHER IS UNSUCESSFUL -The length of a Songwriters Contract can vary --but the standard is one -to two years -perhaps with an options for artist 'Hold"s received prior to the expiration period ...NOTE:The Songwriters Guild Contract is made for One Year with a reversion and a $250.00 advance for an additional 6 months..Its a matter of the personal policy of each Publisher-which determines which contract he will or will not use.
This is the final listing and schematic on paper of all the songs (AKA -SOURCE CUES and Their Writers-,Publishers and requisite percentages as well as timings and description of type of usage of each song in a movie or television or video production.THIS IS WHAT EACH PUBLISHER MUST RECEIVE FROM THE PRODUCTION COMPANY TO TURN IN TO ASCAP-BMI or SESAC -SO THAT THEY CAN TRACK AND PAY ALL PARTIES CONCERNED AS IT'S BROADCAST.
The TYPES OF USAGES:
Feature Vocal Usage :Song with Vocal is played in scene alone with no dialogue over Visual Vocal Usage :Vocal Song sung live in film no dialogue over. Background Vocal Usage: Song with Vocal used in background of scene under dialogue or out of a source (radio-jukebox etc).
Background Instrumental Usage:Instrumental song is played in background of scene under dialog.
Theme Credit Usage:Theme Song opener and usually repeats throughout film or TV show .
Bumpers: (Spots) Usually Theme or a variation thereof that plays before -and sometimes after commercials -returning to and from a TV Show.
18. PA COPYRIGHT FORM
This IS the -Registration form from The Library Of Congress that you use to REGISTER THE SONG.It protects your copyright in and to the words and music of the song. This form enclosed =with the Fee of $30.00 per form /registration (per each song or as a compilation) *- DO NOT FILE MORE THAN ONE SONG-ON A FORM AS A COMPILATION UNLESS YOU LIST ALL OF THE TITLES CONTAINED IN THE COMPILATION also-at Line#2.
19. SR COPYRIGHT FORM..This is the registration Form from The Library Of Congress that you USE TO REGISTER THE SOUND RECORDING ONLY (that the song is embodied on) i.e-The master recording as its embodied on the Cassette,Record,CD that you enclose for deposit materials. "As an example"-The nature of Authorship -would be Author of all musical arrangements in and to the production of the Sound recording.
NOTE :DO NOT USE THIS FORM TO PROTECT THE SONG ITSELF!
THIS IS USED TO PROTECT AND REGISTER THE OWNERSHIP AND AUTHORSHIP (Production,Arrangements,etc,of the actual recording itself ONLY)-ex: Record Companies will copyright the finished album master to their label with this form/or Record Producers would protect their Produced Master Recordings with this form,or A BAND would PROTECT its Recordings with this form. Be sure to use the PA FORM ONLY FOR THE SONGS THEMSELVES---if you want to protect the recording itself-then use the SR FORM for that purpose.
(Or A & R Record Company Dept /Producer/ Manager/ or Artist -HOLD) This is where one of the above Parties will formally request (either verbally or in writing) to demand EXCLUSIVELY TO KEEP YOUR SONG OUT OF CIRCULATION FOR A SET PERIOD OF TIME -IN ORDER TO ALLOW THEM TO OBTAIN AND SECURE A SET RECORDING ON A PARTICULAR ARTIST'S PROJECT.This may be done often times 'on the "honor system" , and SO IF YOU HAVE AGREED TO DO SO --DO NOT CIRCULATE THE SONG TO ANYONE
ELSE-either until the Time Period is UP and they confirm its NOT gonna be ON THE FINAL PROJECT -and give it back to you --OR -THEY EXTEND THE TIME LIMIT BECAUSE THE PROJECT ISNT TOTALLY DECIDED OR FINISHED TRACKING TO COMPLETION.
QUESTION: WHY DOES AN ARTIST "HOLD" A NEW SONG ? ANSWER : EXCLUSIVITY !
IF A SONG IS BRAND NEW AND IT'S PERFECT FOR THAT ARTIST'S PROJECT--THEY WANT TO BE THE 'FIRST" TO RECORD IT AND HAVE THAT 'FIRST ' CHANCE TO HIT WITH IT ALONE .
Scenario :WHAT IF-Michael Jackson JUST RELEASED the song BILLIE JEAN and Bobby Brown JUST RELEASED BILLIE JEAN -AT THE SAME TIME? Answer: The Public doesnt have a chance to decide which version to buy --WHEN BOTH versions are out and on the radio at the same time--It dilutes the power of the uniqueness of the song and its recording artist's rendition -as well as the sales potential for each artist's recording.
21.COVER RECORDS: This is a song that has been recorded and released to the public BEFORE on an artist's record. WHEN THEY-- "COVER IT" that means THEY DO THEIR RECORDING OF IT. Ex. given: "Yesterday" by Paul McCartney- This is one of the most covered songs in history with over 2000 Covers by every kind of recording artist... "Cover's " are what makes a song's shelf life live forever -continuing to generate revenue throughout the years for the Writer and Publisher.
"ADDITIONAL MUSIC 'BIZ' TERMS THAT ARE GOOD TO KNOW" :
1."All In" -means the total licensing price of the song and master use combined-OR the two licensing rights- both combined--(as in " is the total fee --ALL IN -for both rights?").
2. DAT master--means to have a DAT master mixed down recording -for dubbing into the film/ or tv production.
3.Post Production -A studio session -(starts upon completion of the shows filming) -which is used for mixing and editing of all sounds,visual sweetening,dialog dubbing and music addition -as its being mixed into the soundtrack of a film or tv show.
4.Source Cue--a piece of music (or a song) being used in the background -sometimes coming out of a radio or being performed live in the shows soundtrack.
5.Theme-A theme song used at the top and closing of the show or film--(or also as a recurring piece of music throughout the show).
6.Vocal release -A signed legal document giving the film/or tv production company the right to use broadcast and reproduce the vocal likeness as embodied on a song/master.This right is commonly also requested in perpetuity for additional rights (such as videocassettes,home rental and laser disc,or other electronic media).
7.Background Score-A custom composed score by a composer creating it for the show or film.The instrumentation, arrangements and presentation may vary...Sometimes a group of songs used as a background score for the film.
8.Distribution Deal -to obtain a film distribution company or a record distributor -to manufacture and mass reproduce stock, sell and distribute a CD or film to the public throughout the retail commercial marketplace.Some record distribution companies may also be record companies as well that commercially distribute other record label's product.
9.Booking Agent-A licensed and bonded musical agent who obtains club work,tours and live performances for touring and recording artists. 10.Club Booker -An agent or employee of the club who contracts and arranges all live performances at the nightcub.
11.Music Supervisor- The person who creates ,supervises,chooses and consults on -bringing in all the musical soundtrack songs and scoring to a film or tv show.
12.Licensing or Clearance Houses :To CLEAR a piece of material is to obtain the legal rights necessary to use it'.The agents for licensing -for the film/ tv show-who obtain (by contracting in writing) (i.e. to obtain licenses) --all the necessary legal rights in the show for all the music usages.Licensing houses may also sometimes supply music for productions.
NOTICE: This Music Business Terms Glossary is INTENDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED FOR AND SHOULD NOT BE USED OR CONSTRUED IN ANY KIND OF ADVISORY CAPACITY. THE AUTHOR STRONGLY RECOMMENDS THAT AN ATTORNEY SHOULD ALWAYS BE CONSULTED BY AN ARTIST OR SONGWRITER PRIOR TO-SIGNING ANY TYPE OF LEGAL DOCUMENT WHATSOEVER !