© C in a Circle - Signing Away Your Copyright: Joining Forces With A Publisher
Because most novice songwriters are not artists and don’t have a network of professional contacts to turn to, the traditional way to turn your song into royalty income is to try and get it published.
By Gary Roth
When you write a song, you want to get it heard by someone in the industry who may like it and be willing to try and get it recorded by an artist. If you happen to be an artist yourself, you could record your own song. If you have a network of friends and colleagues that includes artists or their reps, you could try yourself to get your new song recorded by others. But because most novice songwriters are not artists and don’t have a network of professional contacts to turn to, the traditional way to turn your song into royalty income is to try and get it published.
A music publisher is in the business of finding songs that it believes have a chance at commercial success and of using its network of contacts in the industry to match the song with the artist whose rendition would likely make it successful with the public. There are both major publishing conglomerates in the U.S. such as Universal Music Publishing, EMI Music Publishing and Warner/Chappell Music, among others, as well as dozens of independent music publishers, often run by only a few people, whose smaller size allows them to provide more personal service to its songwriters but may not have the resources or contacts of the majors.
When a writer submits a song to a publisher, the publisher will listen to the demo and decide if the song is one that the publisher wants to represent. If so, the writer will be asked to sign an agreement, usually called a songwriter-publisher agreement. What is unusual in this kind of agreement is that the writer will be asked to transfer his ownership of the copyright to the publisher. That has the effect of leaving the writer with no future ownership interest in his creation. What the writer gets in return is a royalty sharing arrangement, spelled out in the contract, which states what percentage of the money the publisher receives for things such as record sales, derivative work uses, soundtrack licensing, etc. will be split with the writer. Many times this is 50%, but some publishers are wiling to give the writer more. (Sometimes it all depends upon how well you - or your lawyer-bargains, and who the publisher is). Occasionally the publisher will agree to allow the writer to keep a part of the copyright - be a “co-publisher”- so that the writer doesn’t have to lose ownership of his entire copyright. In those cases, however, it is not uncommon for the publisher also to seek to be the “administrator” of the copyright, the company that handles all the business dealings with third parties. A publishing administrator usually gets to collect both its share and your share of income and then receive an administration fee of about 10-15% before paying over to you what was agreed.
If the publisher thinks that you have writing talent, it may offer you an exclusive songwriter agreement that would give the publisher the copyrights in all of your future works for a period of time, with each new work being subject to the same percentage shares and/or co-publishing right as stated in the agreement. Those new works would each fall under the terms of the exclusive agreement without your having to sign a new contract or transfer your copyright in each to the publisher.
Once you and the publisher sign the agreement, record companies whose artists want to cut the song or producers who want to use it in a film would deal with the publisher/administrator rather than with you, because the publisher is now the copyright owner. It has all the say on what can be done with the song thereafter and does not have to confer with you about its deals unless it says so in the agreement (which is not customary).
Because the law requires a transfer of a copyright to be in writing, if a publisher and you merely agree that he shall have your publishing rights but never commit it to writing, you still have ownership of your copyright. Perhaps you have given a publisher under such an “oral” transfer a license to exploit your works, but it essentially would just be filling that role until you decide otherwise. That’s why a cautious publishing company insists on a written agreement. For it to expend significant resources on exploiting a song without knowing that it owns the work would be foolhardy.
But, whatever you do, NEVER, NEVER, NEVER pay to have your song published. You may feel that you’ve hit the jackpot when you send your song out to a publisher and a letter and contract comes back saying CONGRATULATIONS! But if it also asks for money from you - however modest - it is likely to be from what is known in the industry as a “songshark,” someone who asks writers to contribute toward having their songs published or recorded. While such a practice isn’t illegal, it is considered unethical, and you are wasting your money. The songshark usually lives up to the strict language of what it promises in the agreement, such as putting your song on a CD or printing copies, and maybe even sending it around to radio stations - but in most cases, those actions do not result in getting your song played on the air or sold to consumers. And most songsharks are sure to have you assign them your copyright, so you’ve given it away to a company that is not likely to do anything of value for you and from whom it may be impossible to reclaim. A legitimate publisher doesn’t ask to be paid to publish your song - it signs you because the publisher thinks you can both make money from your creation - and as the business person in the partnership, the publisher lays out all the money to try and make it a success. So be warned.
Even though the publisher owns your song’s copyright, the law makes you the benchmark of copyright life and even allows you to get it back under certain circumstances. More about that next time.
Posted Jul 05, 2004
Member Comments
Hi Gary. Excellent article and very timely. I was just asked to submit some lyrics via email and to protect both parties - myself and the evaluator - I was told to add the copyright symbol and the year I wrote the song on my submission. To me, this did not seem like a good way to protect my work. Anyone could place the symbol and a year on the lyric sheets. Another suggestion was to add the copyright symbol and year and then send the lyric sheets back to myself certified receipt. A third party said that it’s only “protected” when it’s been registered with the patent office. What is correct? Thanks, Deb S.
Deb: You gain the protection of the law when you create the song and then “fix” it tangibly, such as playing or singing it into a tape recorder, CD, etc. or putting it down on paper. Noting the copyright symbol and year doesn’t add protection but it does let others know of your copyright claim and is a good idea. Mailing it to yourself doesn’t do anything for protection, and registration (with the Copyright Office) puts the world on notice of your claim and allows you to sue on the song but again, doesn’t enhance the protection you got with creation and fixation.
Gary,
Your article was a timely one for me to read. I was wondering if you might help me with a few questions. I am actualy an artist, however, in 2001, when I got ready to cut my first CD I began to write. Seven of the 10 songs on the CD are original. I knew nothing about copywrite, but did what I could to find out all I could. The following are the steps I took to protect my songs, yet I am not sure I took all the right steps. Here are the steps I took: 1st- recorded the songs, 2nd- registered as a song writer with BMI and then set up a publishing company with BMI, 3rd- registered my songs with BMI. Now here is the part I am unsure about. I copied all the original songs on CD. Filled out a Form SR, sent two copies and $30 to the copyright office. I never heard back from them. The check was cashed, however. I do not have a certificate or anything. What should I do? I have called the ofice only to get a recorded message.
Though I would not be noted national artist, copies of my CD are floating around out there. I get emails from all over the country even overseas about how the songs ministered to different people( I am a christian artist). There has been some interest in some of the songs by some well known national artist. I co-wrote several of the songs, and share writer and publishing rights with them. I am the administrator. Would I need to sell publihing rights to their publishing or recording lables if these artist want to record my song? Would I have to get concent from the co-writer to do so?
I am a songwriter with a question about trends in music. I have noticed that most of today’s music is severely lacking in melodic content, very repetitive and sometimes almost monotone. Too many of the lyrics are just as repetitive and montonous.(It seems to be reflected in both ballads and up-tempo) Has this now become the industy’s standard or “style” or have the “stable” writers that have the inside tracks to publishers and recording facilities exhausted their resevoir of beautiful melodies and meaningful lyrics? Or have they just grown too lazy to exert themselves enough to search for them. I hope this “style” of music dies an early death as it’s very irritating to listen to for any length of time.
Gary,
Loved the article. I am currently colaborating with my band mates who reside in Canada, and I live in the US. How do we go about getting the proper copyrites in this situation.
Adam V.
How about reversion rights? I read an interview with Les Claypool and his contracts from day one always stipulated that publishing rights reverted back to him after 10 years. So in the late 90’s some of his bigger hits publishing rights reverted back to him and he re-released his albums. Does this make sense? Did I read his interview wrong? Thanks, DM
Don - Just my $0.02 but I will not sign any single song contact with a publisher without a reversion clause. The length can vary, but you want to be able to market your song to someone else, if that publisher does not get the work used in some way. Not have it tied up for your lifetime plus 70 years with someone who’s not going to aggresively pursue it’s use.
Most publishers will have no problem including a clause in the contract, simply because if they pitch it until they are blue in the face and no one bites, they just want to move on. Also, another publisher can pitch the song to the artists, etc. that they work with regularly and you might end up with a song on the radio. It’s business about being in the right place at the right time.
Hi, I need some information if you would be so kind.I am a lyricist,I don’t write music nor do I play and instrument. I have written a number of songs (country) for both male and female. How do I go about setting up my songs in a professional manner(catalogue). Do I print my lyrics out from my computer? . Is there any advice
anyone can give me? Where do I go from here as far as a collaborator? Thank you in advance for any help anyone can contribute. I really would appreciate it.
Best Regards,
Carol
Gary Roth responded:
Deb: You gain the protection of the law when you create the song and then “fix” it tangibly, such as playing or singing it into a tape recorder, CD, etc. or putting it down on paper.
This is a basically true statement, but the “protection” of the law part is doubtful. Intellectual property is yours when you put it in “fixed” form, but protecting it is your responsibility, just like you buy gas and put it in your tank and it is yours if no one steals it. If you want the “law” to help you protect it, only registration with the Library of Congress Register of Copyrights will do it.
Gary Roth states:
Noting the copyright symbol and year doesn’t add protection but it does let others know of your copyright claim and is a good idea.
Again, basically true, but fails to note that copyright law “requires” you to place your copyright notice on any “fixed” form, a piece of paper, a recording, any “fixed” form that could come into dispute as to ownership, especially if published.
Mailing it to yourself doesn’t do anything for protection, (True) and registration (with the Copyright Office) puts the world on notice of your claim and allows you to sue (Strategically true for legal protection of ownership) on the song but again, doesn’t (Not true) enhance the protection you got with creation and fixation.
Only registration with the Library of Congress Register of Copyrights enables you to bring an infringement suit, to collect attorneys’ fees (a great incentive for a lawyer to take your case) and to have the “law” on your side when you bring suit.
Without registration, someone else could register the work, and you would have to prove, somehow, somewhere (since you can’t bring an infringement suit without registration) that you wrote it and that they had “access” to it and stole it. That’s a tall order to ask an attorney to prove for you. Only registration gives you that protection under US copyright law. Registration enables you to compel a mechanical license to recover your rightful profits from their use of your work.
Go to [url=http://www.copyright.gov]http://www.copyright.gov[/url] and read for yourself. Download some of the data and study it. Get the advice of an entertainment law attorney.
Used to be on the old vinyl records the artist or performer’s name would be up top but in the individual listings of songs below it would show the title, copyright symbol, date and author’s name. Nowadays on the Internet most song lyrics do not show the copyright symbol or the song author. You don’t gain a reputation as a songwriter if this info is left off. So, my question is, back when they used to do this was it a custom or a law? Why do you suppose it is not done now?
Eddie Rhoades
myspace.com/eddierhoades
I have many songs written and recored in my home studio. They are both vocals and instrumentals. Should I put them all on one “demo cd” and copywrite it as a whole? Or should each song be copywritten? Dana
