PUBLISHING AGREEMENTS: Another in our series of legal resources for creative people about.
- What is a Publishing Agreement?
- Does a Publishing Agreement mean that a publisher owns my songs?
- What exactly does a Publisher do with my music?
- Are there different types of Publishing Agreements?
- What is an Administration Agreement?
- What is a single song deal?
- If I play in a band but don’t write songs do I need a Publishing Agreement?
- Can a publisher do anything they want with my music?
- Are there any guarantees as to what the Publisher will do?
- Will a publisher pay advances?
- How does a Publisher get paid?
- Is a publisher entitled to a share of my APRA money?
- How much will a Publisher get paid?
- How much will I get paid?
- When will I get paid?
- What is the difference between the Term and the Retention Period in a Publishing Agreement?
- How long does a Publishing Agreement last for?
- Will a Publishing Agreement Apply in respect of the whole world?
The information provided on this blog has been made possible by the funding received by from the New Zealand Law Foundation.
|This Fact Sheet is not legal advice. This information is intended to provide a general outline of the relevant legal issues and further professional advice should be sought before any action is taken in relation to the information contained in this Fact Sheet.|
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What is a Publishing Agreement?
A Publishing Agreement is a legally binding agreement entered into between an artist (or individual artists who may be performing together in a band) and a music publisher. Under a Publishing Agreement an artist grants to a Publisher certain rights in respect of the songs the artist writes to enable the publisher to grant permission to others to make use of those songs. In addition to this a publisher will also be responsible for collecting any royalties due to the artist from the use of their songs. In return for performing these services a publisher will take a set percentage of the income it generates and collects for the artist.
Just as a Recording Agreement (for more information on Recording Agreements please refer to our Fact Sheet ‘Recording and Licensing Agreements’) is primarily about the rights an artist grants to a record label in their recorded performances so a Publishing Agreement is about the rights an artist grants to a publisher in the songs the artist writes.
Does a Publishing Agreement mean that a publisher owns my songs?
No. However, a Publishing Agreement will provide for the assignment of rights in respect of the songs to the publisher for the duration of the Publishing Agreement. This is to make it easier for the publisher to do their job and enforce their rights in the songs against third parties. However there should be a clear provision that automatically ensures any rights assigned to the publisher are reassigned to the artist following the end of the Publishing Agreement.
What exactly does a Publisher do with my music?
Under a traditional Publishing Agreement a publisher will have the ability to grant other people the right to use the artist’s songs in any number of ways. Essentially one of the main components of the publisher’s jobs is to find ways to make money out of the use of the artist’s songs.
Historically the main sources of income for publishers were sheet music and having other artists perform cover versions of their artists’ songs. These days the opportunities available for the use of music are many and varied and while sheet music and cover versions are still sources of income, having songs placed in film and TV are some of the most lucrative uses today in addition to an ever increasing range of new opportunities such as placement in video games. Having songs used in TV commercials is another way that publishing income can be generated from an artist’s songs.
A publisher may also look for new co-writing opportunities for their artists by pairing them up with other artists who they also publish. As each artist and each band is different the way that a publisher will go about generating income from the songs of an artist will vary.
Are there different types of Publishing Agreements?
In addition to the traditional Publishing Agreement which provides for the full range of services outlined above, there are also different variations on this type of deal that publishers sometimes offer that provide for different degrees of commitment and services. However, just as no two Publishing Agreements are exactly the same, so too it’s true that the other types of deals a publisher may offer may also vary from publisher to publisher and deal to deal.
What is an Administration Agreement?
One relatively common variation on the traditional Publishing Agreement is called an Administration Agreement or an Administration Deal. This type of arrangement in theory provides for a lesser range of services to be provided by a publisher and is normally only offered to an artist that already has a body of work available for the publisher to make use of.
Under an Administration Agreement one of the key services the publisher provides is the collection of all income due to the artist from the use of the Artist’s songs. Although the benefits of this may not seem significant, if an artist’s music is being used by a number of third parties in a number of different ways, then keeping track of all payments due to the artist and following up as required for any overdue or incorrect payments might in fact be quite a significant and time consuming job. And after all an artist’s time is probably much better spent focusing on their music and advancing their career generally, rather than being a debt collector.
Under an Administration Agreement, in its purest form, the publisher would not actively attempt to promote and market the artist’s songs for use by third parties at all, or at least not to the same degree as is the case under a Publishing Agreement. However in practice each situation can vary. Under a traditional Administration Agreement it is also likely that there will not be a focus on the Publisher working to build the career of the artist. But once again each situation is to some degree different.
What is a single song deal?
In some cases rather than signing an artist personally or obtaining rights in an artist’s catalogue, a publisher may just be interested in obtaining rights in a particular song or group of songs an artist has written so as they can try and find opportunities to generate income through other people making use of the particular song or songs. In these cases a publisher will of course also be
responsible for collecting income generated by the use of these songs just as they do under a fully fledged Publishing Agreement. These types of deals are not common in New Zealand as quite often if a publisher believes enough in the commercial potential of the one song or group or songs an artist has written they will be interested in looking at tying the artist into working with them to some degree going forward such as through a more traditional Publishing Agreement.
If I play in a band but don’t write songs do I need a Publishing Agreement?
No. As a Publishing Agreement only relates to the songs themselves regardless of who performs them, if you don’t write songs (and also aren’t gifted any songwriting percentages due to some kind of internal band arrangement with regard to songwriting credits) then you won’t need a Publishing agreement.
Can a publisher do anything they want with my music?
The terms of the Publishing Agreement will specify exactly what a publisher is entitled to do with an artist’s songs. Given the different ways that songs can be commercially used these days, it is important that any ways in which an artist’s songs may be used that an artist doesn’t feel comfortable about are clearly dealt with. For instance, it is not uncommon for an artist to be able to deny the use of their songs for advertising purposes. It is also not uncommon for the artist to have to approve any use of their songs in a video game or the use of any of the music or lyrics comprising their songs in combination with other music or lyrics of a third party. The amount of control an artist will have in terms of how their songs are used will to some degree come down to the commercial bargaining power between the artist and the publisher when the Publishing Agreement is negotiated.
Are there any guarantees as to what the Publisher will do?
Although a Publishing Agreement won’t provide an artist with any specific guarantees as to how much income the publisher will generate for the artist through their activities, there are still certain safe guards that an artist should ensure are included in a Publishing Agreement. There should for instance be a very clear obligation on the publisher to actively represent an artist’s songs to the best of the Publisher’s ability. In some situations an artist may also be able to have a publisher agree that certain songs will return to the control of the artist if the publisher has failed to generate any specific income from them within a certain period of time.
Will a publisher pay advances?
Under a traditional Publishing Agreement it is quite usual for a publisher to pay an artist an advance on signing the Publishing Agreement. The advance will be recoupable against all other income that is due to the artist under the Publishing Agreement. This can at least guarantee the artist a certain amount of income from the Publishing Agreement. However what an advance means in practice is that the artist will not receive any further payments from the publisher until the income due to them generated from the use of their songs exceeds the amount the publisher has previously advanced. This is the same basis on which advances operate under a Recording or Licensing Agreement. For more information on Recording and Licensing Agreements please refer to our Fact Sheet ‘Recording and Licensing Agreements’.
Quite often Publishing Agreements will also provide for the payment of further advances on the artist delivering a certain number of songs to the publisher or having an album released which contains a certain number of their songs. In these cases the provisions that an artist must satisfy to qualify for the further advances must be carefully considered so as the artist can be sure they will in fact be entitled to these advances. For instance if a Publishing Agreement requires the release of an album containing the artist’s songs through a major record label in order to qualify for a further advance, then this is of little use to the artist if the artist intends on releasing the record through their own independent record label.
How does a Publisher get paid?
A publisher gets paid by taking a commission on any income that they generate or collect on behalf of the artist.
Is a publisher entitled to a share of my APRA money?
Under a traditional Publishing Agreement a publisher will be entitled to a certain percentage of an artist’s APRA income. A publisher will also be entitled to a share of the mechanical royalties that an artist receives whenever their songs are reproduced such as in ringtones or on an album. For more information on APRA and mechanical royalties please refer to our Fact Sheet ‘Copyright for Musicians’.
How much will a Publisher get paid?
The exact percentage payable to the publisher will vary from Publishing Agreement to Publishing Agreement and will also depend on the type of Publishing Agreement that the artist has entered into. For instance Administration Agreements due to their nature normally provide for a better return to the Artist. The commission a publisher takes will also vary across
the different mediums of exploitation. For instance, a different commission rate will apply to where an artist’s songs are reproduced in sheet music as opposed to where an artist’s songs are included in a movie. The percentage can also in some instances differ further depending on whether it is the publisher or the artist who has sourced the opportunity in question.
How much will I get paid?
Although the exact commission taken by a Publisher can vary greatly depending on the above factors, these days the artist should receive the majority of any income earnt from the use of their work. In fact, in generally all cases, the percentage of the income that an artist will receive sits somewhere between 60%-80% depending on the use and the deal in question.
When will I get paid?
Under Publishing Agreements the payment of income due to the artist is traditionally made either every three months or every six months. It is also common to have a provision in Publishing Agreements which allow an artist to audit the accounts of a publisher to ensure that all income due to the artist is being properly accounted for and paid through.
What is the difference between the Term and the Retention Period in a Publishing Agreement?
Publishing Agreements are unusual contracts in that the obligations that bind an artist are based around two separate periods of time. The first of the two separate time periods is the ‘term’. This period of time normally begins from when the artist signs up to the Publishing Agreement. During this period of time the Publisher has the right to administer all songs that the artist writes, as well as all songs that the artist has ever written that are not currently the subject of an agreement with another publisher.
The second of the two separate time periods is the ‘retention period’. The retention period will only begin to run when the term of the publishing agreement has come to an end as provided for in the Publishing Agreement. During the retention period the artist will be entitled to do what they want with any new songs they write, (including even signing a separate Publishing Agreement with a new publisher in respect of these,) but the publisher will retain the right to administer for the full length of the retention period the songs that the publisher had rights in during the term of the Agreement.
How long does a Publishing Agreement last for?
The length of a Publishing Agreement varies depending on the nature of the deal. For instance an Administration Agreement will typically be for a much shorter period than a traditional Publishing Agreement. The average term of a traditional Publishing Agreement in New Zealand is probably somewhere around ten years with an Administration Agreement having an average term that is perhaps around five years. However it must also be remembered that in respect of a traditional Publishing Agreement, the Retention Period, which only begins following the end of the term of the Publishing Agreement, is likely to be around the same length again as the term of the Publishing Agreement in fact was. So in effect this means that a publisher can have rights in certain songs that an artist has written for a very long time.
Will a Publishing Agreement Apply in respect of the whole world?
It is not uncommon for Publishing Agreements to provide the publisher with the right to administer an artist’s songs throughout the world. However in some cases it may be possible to limit the publisher’s rights to just certain territories, perhaps for instance New Zealand and Australia only. Careful consideration should be given to how extensive the territory is that a publisher is granted rights to control an artist’s songs in, with respect to whether the publisher actually has the practical ability to do this in an effective way. In the event that a publisher does not have an active presence in any particular territory but intends on sub-licensing the artist’s songs to a third party publisher based in that territory, (and the artist is happy with that arrangement,) then it must also be ensured that the Publishing Agreement provides some protection in terms of how great the commission is that such sub-publishers will themselves keep.
Written by entertainment lawyer David McLaughlin.