It seems lately that not one day goes by that I don't get a call from
a Aspiring Band or Writer seeking a Publishing Deal. But the craziest
thing- 99% of Writers and Artist's have no idea what a publishing
deal REALLY IS...Sometimes it really seems like alot of these Artist's
and Writer's are in a mad rush to give away their rights with very
little inner understanding of what's really involved.
Lets set up a fictational scenario- suppose a band has a self released
CD and approaches a Publisher for a 'Publishing Deal"---basically
the way that this should work IS that the Publisher should be ready
and able to offer an outlet for placement of the Band's material be
it in Films or TV-and or-to 'shop them for a record deal"...The idea
of a Publishing Deal means making a fair exchange of monies and services
(for your Publishing Rights or a 'smaller percentage' of them) with
a Publisher you can trust to exploit,protect and collect for you for
years to come..The problem with this scenario is -unless the Publisher
can place that band with a record label-or can place alot of their
material for usages in TV and Film--(The deal aint so sweet).
In otherwords-- FOR AN ARTIST--"IT'S NOT A GOOD IDEA to give away
your Publishing Rights to any parties until the band has had their
chance for a record label contract" ..Why is that? Because the label
may also approach you prior to the time of signing -to negotiate for
a piece of your Publishing --and they almost always do so. Also--(on
the Artist's side)-if you make a deal for your CD to be distributed
just for japan or europe-remember that the label will usually want
Worldwide rights for your album too.So if your Publishing's not available
nor your product for those territories you may have excluded yourself
out of a worldwide record and publishing deal.SO--the less you give
up before a DEAL comes down--the MORE you have to negotiate with the
label for..And so on to the second part of this --YOUR PUBLISHING
RIGHTS ARE WORTH MONEY -AND /OR DO NOT GIVE UP YOUR PUBLISHING RIGHTS
WITHOUT A FAIR EXCHANGE OF MONEY FOR RIGHTS..!
I AM NOT TALKING 'SINGLE SONG CONTRACTS'-which is entirely a different
scenario if you are an unpublished Writer with no track record at
all.You can expect that they will ask for the Publishing-but by inserting
a reversion clause in that contract-(and a term of not more than 18
months) -the rights will legally revert back to you if the Publisher
is unsuccessful in placing your song......So--let me continue a bit
on the ARTIST SIDE: YES-- (Upon securing a Recording Contract offer
in writing) your attorney should always try to negotiate for you to
keep your Publishing Rights ..
If this is becomes a non-negotiable point with the label your dealing
with---PERHAPS-the label might negotiate with you for a 'percentage
of your Publishing' --but if they do--'make sure that if they will
COPUBLISH that you MAKE A CO-PUBLISHING-CO-ADMINISTRATION DEAL'--
(thats where you keep your half of the Publishing at the percentage
you've agreed on--and the legal right in owning that share of the
copyright for life and also to administrate and license that share
as well-)-separately -(as does the label for its acquired percentage)..The
Administration Rights are always the keyword...
So what percentage do you negotiate for? Well let's just say--that
when the label wants a percentage of your Publishing Rights--they
should pay you an advance for that 'piece of publishing' they want
to acquire from you..A fair exchange of monies for rights--'always'.Yes--this
will usually always be a recoupable advance and it will be deducted
out of your Writers Share of royalties they collect until its entirely
recouped..A good thing to remember is the more money you get UPFRONT
the more time it takes --until they recoup enough to start paying
you the WRITERS SHARE-from the percentage of Publishing they own....So
the front money may look really good--but remember you must earn it
all back BEFORE you start to get paid by them.
Let me digress for a moment and elaborate thus further on the ARTIST
side:There's also this similiar theory in play when you make a RECORD
DEAL and the Artist then has to recoup all the Advance monies their
given-including the Recording costs from the album,promotional costs,packaging
costs ,video costs ,touring costs if applicable before they ever earn
their Artist's royalty rate..Of course all the packaging deductions
and returns are constantly debited against your account--so it would
be fair to say-that of most record deals made-the Artists never recoup
the upfront monies they were given..So its years of debits taken off
all your probable Artist earnings-..
How do we get around this? You might have your attorney negotiate
for a higher Artist royalty rate and take a lesser advance.And try
to have the recording budget reduced of alot of unnecessary costs
by rehearsing all the material well in advance of the recording date
(in a rehearsal studio or somewhere else),and/or working with your
Producer in advance of the date as possible. Of course on the advance
side-most people want to take the big money and worry about recouping
it later,but unfortunately it all adds up and YOU end up paying for
it twiceover in trying to recoup what they first gave you..If--in
the deal-- you kept your Publishing Rights (or Half and the Administrative
rights to that share)-then at least you would be receiving your 'mechanicals"
(Publisher Royalty of Record Sales) direct to you on sales of the
record from square one...Its important that your attorney 'makes sure
that the label doesnt cross collateralize your Publishing Royalties
that come in against their recouping your Artist Royalties'--.They
can and will deduct what their owed back from Publishing royalties
too- (whether if they are your Co-Publishers (without you Co-Administrating
your retained share)or THEY are your Publisher @100% share)..
The PIE THEORY:ok for those who dont understand Publishing--heres
the simple formula. You and your co-writer write a song (well 100%
is split 2 ways on that song)-you each own 50/50--(if you seperate
half of that 100% that's the Publishing Share available to negotiate).That
half of the song becomes known as 100% of the Publishers Share Until
you and your Co-Writer assign it to any Publisher in writing-YOU own
and control that share too.What if you get to keep your Publishing
Rights in your record deal? Well I'd say you should definately consider
making an Administration Deal--this is where you hire another Publisher
to Administer and license your works for you exclusively and to handle
all these functions for a flat percentage of your earned Publishers
Royalties (usually 10 %to 20%). Why do we hire an Administrator? The
administration and licensing work is very intricate and detailed and
if you dont know how to handle it-you will lose countless monies over
songs that are not licensed properly and/or registered to Ascap or
BMI for airplay royalties as well as not knowing how to negotiate
for new TV and Film
Synchronization licenses and the probability that you might sign something
you'd regret later in regard to usage of one of your songs.If you
dont speak legalese dont attempt to do any kind of license or contract-tsomething
that arises in the fine print might come back to haunt you later.So
when you have an administrator--its your Company but--A good Administrator
will always consult with you firstly on all the offers that come in
and thereby help you to negotiate for the best fees to charge in each
situation-and then they will handle the contractual licensing for
you to make that deal .. They also will copyright all of your works
and register the titles worldwide with foreign societies as well making
sure your due royalties get paid to you..A good Administrator should
also be capable of collecting outstanding monies owed to your Publishing
Company and to exploit your material also for additional Records,Film
and Tv usages (but some will also command an additional royalty) (above
the Administrators percentage) for placement of your songs on such
deals).An Administration agreement usually runs for at least three
years and should be renewable only by mutual agreement of both parties
in writing.
So--to understand a Publishing Deal --is to realize that someone-(A
Publisher-whether its an INDY or a major Company--) desires to negotiate
with you for a percentage of your Publishing Rights in return for
MONEY-(ie advance to be given to you in front)-or the services he
or she promises to provide in the exploitation firstly, (then protection
and collection of your rights)...Its your choice as to what and how
much you give up or dont up (excepting in the case where they will
NOT Negotiate any further beyond their orginal offer -'which is known
as THEIR BOTTOM LINE"--but the most important thing is to be as knowledgeable
and creative as you can be on knowing your options and to have an
experienced music attorney read over and advise you of all the pros
and cons of each deal thats presented to you--- prior to signing ANYTHING.
No matter how good something may sound--any contract may usually have
an unexpected surprize element and what you dont understand can turn
out later to be a money drain for many years-or cost you alot in legal
fees trying to get out of that bad situation.Be informed,be wise-be
advised-so that when the time comes--YOU MAKE THE RIGHT DECISION on
your Publishing Rights.
It's the most important decision you'll ever have to make.
