Publishing Agreements – PART 1

 
 
MCLAUGHLIN LAW - MUSIC LAW NEWSLETTER - JUNE 2008
PUBLISHING AGREEMENTS – PART 1  Introduction
In this edition of our Music Law Newsletter and continuing on in the next edition we’re going to be discussing the last of the major types of agreements that you commonly encounter in the music industry namely Publishing Agreements. Least Understood
In the work that I do with artists I generally find that Publishing Agreements are probably the least understood of all the major types of music industry contracts. This is perhaps largely due to the fact that they are not widely publicised in the media and also that unless you are a songwriter (as opposed to non songwriting member of a band) they won’t be applicable to you. What Is It?
So what is a Publishing Agreement exactly? A Publishing Agreement is essentially an arrangement under which a song writer assigns their rights in the songs they write to someone else for a certain period of time to enable that other person to seek out paying opportunities for the use of those songs. Put more simply you get someone to help you find different ways of making money out of the use of your music. Traditional Uses
So what are the different ways that a publisher can help you make money out of your music? Traditionally a publisher would take your music and either arrange for other people to do cover versions of your songs or arrange for the production of sheet music versions of your songs so everyone could buy a copy and play along at home. However over the years the publishing industry has changed dramatically as advances in technology have opened up numerous new opportunities for exploiting music in addition to the traditional avenues. New Uses
For instance getting your music placed in film and TV programmes and adverts is likely to be one of the most profitable sources of income a publisher can arrange. Similarly other new opportunities like music placement in video games open up a whole new realm of possibilities. The other key service a publisher will provide is diligently following up the collection of all money due to you from the uses of your music and chasing any unauthorised use. Term
So having given you a very broad description of Publishing Agreements what are the key legal issues that you should be aware of in these agreements? Like Management Agreements and Recording Agreements one of the first issues to be aware of is defining how long the agreement is in force for. These days you would expect to see somewhere around the 10-15 year mark for a standard Publishing Agreement with a specialist publisher. Retention Period
However a key issue to be aware of is not just what a Publishing Agreement describes as the term of the agreement but also what is described as the retention period. Why is this so important you ask? Well the term of a Publishing Agreement establishes the period of time that you must let the publisher control all songs you have written during the term of the agreement and any songs you have written before. However in the retention period following the end of the term you can do what you want with the new material you write but the songs written during the term of the Publishing Agreement have to continue to be administered by the publisher. Long Time
Considering that the retention period of a Publishing Agreement will often mirror the length of the term of the agreement itself this could mean that the songs you write during the term of the Publishing Agreement will be under the control of the publisher for a long time. All Songwriting
It is also important to understand that during the Term (and as applicable during any retention period) a Publishing Agreement will cover all of your songwriting activities no matter what band you play in or solo work you do. For instance a publisher may want to sign you because they see value in the music you are writing with a specific band you are in. However even though the publisher may be primarily interested in the music being produced by you in this band a Publishing Agreement will none the less capture all of your work as a songwriter no matter what entity or name this music is performed or released under. In other words the publisher will have just as much right to control and exploit your solo songwriting work or your songwriting work with your new wave jazz side project as it does with the primary band you play in that initially got the publisher so interested. Advances
Another key legal issue to be aware of are the conditions that have to be satisfied before any advances due to you will be paid out by the publisher. Usually the payment of advances will be tied to the delivery of songs as released on an album. Be very aware of this and the exact way this is defined as you don’t want to be in the situation of delivering an inadequate number of songs on an album or having an album released other than as provided for in the Publishing Agreement and consequently loosing your right to payment of any advances. Permissions
In any Publishing Agreement it is also very important to make sure that the way in which the publisher can seek to use your music is clearly defined. For instance there are certain uses that you may want to require the publisher to have to approve with you first. Examples of this may include the use of your music in advertisements as feature songs in film or TV programmes and also in video games. Next Time
In the next edition of our Music Law Newsletter due out in August we’ll be continuing our discussion of Publishing Agreements and consider further some of the key legal terms you should be aware of. Questions?
In the mean time if you have any queries or questions in respect of the above please don’t hesitate to contact me at david@mclaughlinlaw.co.nz or on 021 630 201 or 09 363 2738. I can also be contacted through myspace at www.myspace.com/nzmusiclawyer Pass it on
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Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article. This article written by David McLaughlin of McLaughlin Law recently appeared in New Zealand Musician Magazine and has been reproduced with the kind permission of New Zealand Musician Magazine. www.christchurchmusic.org.nz/publishers
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