October 6, 2010 7 Words Every Artist NEEDS To Know: Publishing
If you’re serious about making this business of music your full time career, then one of the first things you need to understand is the lingo of the business! Today we will discuss, in plain English, the top 7 terms you need to understand about publishing. Something important to remember about publishing is, this is how songwriters earn their living. If you are an artist who only records other peoples music, you are usually not entitled to the publishing income. However, if you are an artist who writes some or all of your own material, or a writer/ composer (beat-maker for the rap producers), this is where ALL of your money is coming from! So without any more chatter, here is:
7 Words Every Artist NEEDS To Know: Publishing
1. Copyright - Copyrights are the rights given to you under US law that states, once you create an original work (known as Intellectual Property), you are the only one who is allowed to profit from it for a specified amount of time (for most of you, that would be the rest of your life, plus 70 years). Now, by law, as soon as you put the song in a form that anyone else can hear it or read it, it is considered copywritten. The question is, how do you prove you did it first? Although there are a lot of suggested ideas out there on how this can be done (ie. mail it to yourself and don’t open it, upload it to a website so the date is saved, etc…) they are ALL wrong. The ONLY way to ensure that your music is protected and will stand up in court when you sue someone for stealing your song, is to register the song with the US Library of Congress. Once submitted, your copyright is secure, and you can rest assured that your music is safe.
2. Licensing - Allowing someone else to use your music, usually in exchange for money. The amount of money can vary greatly, and depends on a) your status as an artist or songwriter b) the demand for your song c) how the song will be used (commercials, opening credits, bg music, etc.)
3. Publishing - A) The selling and licensing of music rights within the music industry. Rights include Performance Rights (see 4. below) , Mechanical Rights (see 5. below), and Sync Rights (see 6. below).
B) When dealing with copyrights, and some other forms of the business, publishing is considered simply making a version of your music available for the public to hear. This may include CD’s, a live show, or uploading it to the web. So next time you file a copyright, and they ask if this work has been published, if you have released or performed the song publicly, you should check yes.
4. Performance Rights - These are the rights you will grant to people to publicly perform your music. If another band wants to cover one of your songs, when the perform it, either they, or the club they are performing in will have to pay for the license. When radio, restaurants, bars, hotels, etc… want to play your music, they also must pay for this right. However, that’s a lot of people to try to monitor yourself, so most artist use a Performance Rights Organization (or just PRO) to do this for them. The 3 PRO’s in the United States are ASCAP, BMI, and SESAC. They will handle all licensing requests and payments on your behalf, keep a very small portion, and pay you the rest, 4 times a year. (WARNING: The rates people pay for the Performance Rights are small, and based on some complicated math. So just because the local radio station in your town plays your songs 5 times a day, it’s not gonna be enough for you to expect a check. In reality, most artist won’t ever get a check for radio plays from a PRO, but you might get one for other uses, like for getting your music played in a movie or commercial.)
5. Mechanical Rights - Mechanical rights are what you would offer someone who wants to record your song. Usually the label that releases this song is who will pay this. The amount owed to you is set by the US Congress, and at the time of this writing (2010) that rate is 9.1 cents, per song (classical music gets a different rate, contact me if you’d like to know more). Again, this can be difficult to keep track of, especially if you have many different labels who owe you money. This is where the Harry Fox Agency (now just HFA) comes in. Like the PRO’s do for Performance Rights, if you own a publishing company (and if you write music, you should probably set one up for yourself…it’s not that hard) HFA will negotiate, collect and distribute Mechanical Licenses on your behalf. And like the PRO’s, HFA will take a small percentage in exchange. Sheet music and lyric sheets (including lyric websites), also fall under the Mechanical Rights. (WARNING: If you are an artist AND songwriter, AND you are looking to get a record deal…you will be forced most likely to accept a reduced mechanical rate because they will also be paying you a record royalty….I will be doing a series in October that breaks down common contract clauses you should be familiar with, so stay tuned for those).
6. Sync Rights - Sync Rights are the rights you give as a songwriter to allow someone to use your music in TV, Film, and anywhere else that video and music are ‘synced’ together. If you are also an artist, and have recorded your song, you would also give a Master Use license. This would allow the tv/film producer to use the recorded version of your song that you already have (assuming you are independent, if you’re signed, labels usually have control of the Master Use rights). There are a few ways you can get paid from a Sync license. You may work a deal where you give a royalty free license where you would get an upfront fee for your music, and the company using it can use it however much they want without having to pay you again ( I believe this is now the number one way music is licensed). There are royalties paid agreements, where whomever is licensing your music would pay you each time it is played. And then there are agreements in between, ie. I may pay you to use your music for 3 months in an advertising campaign I’m doing. If I decide to extend that time limit, I would either give you another lump sum, or pay per use. These deals are usually worked out by whoever owns the copyright, which can get very confusing, which leads us to our last definition…..
7. Publishing Company - Publishing companies find songwriters like you, and have you sign over the copyrights to the music you own. “Why the hell would I do That!?!?”, you ask? Well, in exchange for giving over your copyright, the Publishing Company will take your song, and find ways for it to make money, then it will split the money earned from the song with you. Often, it’s a 50/50 split (if there’s more than 1 writer, they will all split the 50%, and the Publishing Company will keep the other 50%), but depending on you success rate, and/or how much help you need securing opportunities for your music, it is possible for you to keep the whole writers half, and also receive some of the Publishers share. For those who have a typical publishing deal, the Publishing Company will handle much, if not all, of the paperwork and negotiations involved in all of the above mentioned licensing opportunities. I often like to think of the Publishing Company as the record label for songwriters.
Of course, Publishing is the largest ($$$and most profitable$$$) part of the music industry, so there is much, much more to know before you can call yourself a publishing expert, but these definitions will definitely put you at an advantage when the opportunity comes.
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Nathan Talbot is an Entertainment Consultant with over 15 years experience in the entertainment industry. He has worked with independent artist as well as major labels like Sony BMG and Universal Music Group, and in television with national programs airing on WB and UPN, and others.
Reader Comments (7)
Pity... You're really convinced the whole world is situated in Northern America...
All you americans are 5% of the world population, sorry to break your bubble
Francois from good ole Europe...
http://www.newrockstarphilosophy.com/2010/10/the-expanding-world-market-for-music/
Francois, I'm not sure where you read that I think that the WORLD is situated in North America, but I am, and since laws vary GREATLY from country to country, I tend to address the area I am from and therefore know the best.. I would hope people from other countries would understand this basic principle and replace the US departments I mention with the equivalents in their own country. And maybe you would also not prejudge that just because an American refers to an American institution, it means that we are self centered and dismissive of the rest of the world. I'm sorry you feel burnt by America, Canada, and Mexico (all of which are located in North America), but maybe we should learn to think a little more before we speak.
Nathan
Great article and many readers will find it hugely helpful in understanding the rights that they create when they write a song.
However, point 1 is incorrect.
I have been a music lawyer for 20 years and I see this mistake and myth perpetuated day after day.
A song is protected by copyright the moment that it is created. It need not even be recorded, however that fixing does provide evidence of its creation.
Filing at the Library of Congress does NOT protect your copyright - it gives you the ability to prove that you had created the copyright at least by the date you filed.
If then a case of plagiarism occurs after that date you have proof of prior creation and the burden of proof is easy.
HOWEVER, there are many ways that you could also prove prior creation (such as mailing to yourself or filing with a lawyer or, in these modern times, perhaps a video you made loaded on YouTube).
The ability to prove the prior creation remains only one element.
It is entirely possible that your copyright work, whilst provable as being in existence at a specific time, cannot be shown to have been infringed by the work you believe has copied it.
That is a much higher burden of proof and very costly.
Also, in my experience, it is very, very rare that an unkown has a song that they wrote infringed by an established artist. It does happen, but it is very unlikely.
With all that said, I would nonetheless still agree that for those in the US filing a song with the Library of Congress to prove its date of creation is a sensible precautionary step, but, just remember that the act of so doing is not creating the copyright nor protecting it - you have done that by being the creator - you're just making it easier to prove.
Thanks for your input Ian. I didn't mean to give the impression that a song must be recorded first, or ever, to gain copyright protection, however it does need to be in a tangible form, whether performed publicly, written down, or some form of expression ( read this from copyright.gov ). I also think we're dealing semantics by saying filing with the Library of Congress doesn't "protect" a copyright, and only helps "prove" it. I think if you can prove something, that is in of itself protecting it. And I would hate for the majority of artist, who may not understand the fine tuned wording of legalize, to be confused in thinking "Screw a copyright (and it's costs) if it doesn't protect anything!"
As far as other ways in the US to protect/prove a songs copyright, I don't believe mailing it to yourself has ever stood up in a court of law due to the many loop holes involved (ie reopening and resealing envelopes, the post office not keeping records of registered mail for extended periods, etc...).
And I don't include web posting via youtube or any other electronic means because I don't think there's is sufficient evidence that shows it would stand up in a court of law (I am not an attorney, so I could be wrong. If you know of case law that shows this, I would love to read it). I am also unaware of simply filing with an attorney to help prove copyright in court. That system seems as flawed as the 'mail to self method', but again, I could be wrong.
In short, if the need ever does arise to show in court that you are the rightful copyright claimant (I again agree with you that majors almost never rip off unknowns, and I would contend it's usually the other way around), the only method that has worked time and time again, is to file your right with the Library of Congress before exploiting your work to the public.
Great post, really useful especially if you only have a tiny amount of knowledge on these topics!
Just going to throw this out there, though, for anyone reading this after me: any suggested further reading about publishing, copyright and the actual business side of music in general?
It's so important to be clued-up and know the business whatever you're doing, I think.
Thanks in advance guys (and gals!)
:)
Thank you for the business advice. I have a feeling this is going to prove invaluabe!