How to Draft a Music Publishing Contract

Three Parts:Covering the BasicsAssigning CopyrightsIncluding Miscellaneous Provisions

Music publishing is the part of the music industry concerned with a music composition – the lyrics and written music – and the royalties earned by the songwriter. Anytime a song is used somewhere, including when it is played on the radio or through streaming services, the songwriter earns a royalty. Music publishing contracts are made between a songwriter and a publisher. The publisher receives royalties from the various performing rights societies and disperses them to the songwriter, minus the fees earned by the publisher.[1][2]

Part 1
Covering the Basics

  1. Image titled Draft a Music Publishing Contract Step 1
    Identify the parties. The first part of a music publishing contract names the songwriter and the publisher who are parties to the agreement. Typically you'll give them a title, such as "Artist" or "Songwriter" and "Publisher," which will be used throughout the rest of the agreement.[3][4]
    • In addition to identifying the parties by name, the first paragraph of your contract also provides the date the agreement goes into effect. This may be the same day the parties sign the contract, or it may be a later date.
    • Established publishers typically have a standard agreement that they use, and simply enter specific details such as the name of the songwriter, compositions covered, and the term of the agreement.
    • You may be able to find sample contracts that you can use as a guide to write and better understand the clauses and terms included in a standard music publishing contract.
    • After the first paragraph identifying the parties, a standard music publishing contract typically includes a number of "whereas" clauses. These clauses begin with the word "whereas" and describe the general purpose that the two parties are entering into an agreement with each other.
  2. Image titled Draft a Music Publishing Contract Step 2
    Specify how long the agreement will last. Some music publishing contracts grant the publisher an exclusive publishing right, which relates to the entire output of the songwriter for the duration of the contract. Others only last for a specific term.[5][6]
    • Where a publishing contract lasts for a specific term, it typically continues for several years.
    • Contracts set to expire after a number of years usually also include options for renewal. These options periods are triggered on a certain date and may give the publisher the right of first refusal – meaning when the contract expires, the songwriter must give the publisher the opportunity to renew the contract before he or she goes shopping for another publisher.
    • Keep in mind that the term of the contract is separate from the copyright assignment. Some contracts may not include a specific term because the copyright is assigned for the life of the copyright (the life of the songwriter plus 70 years). With these agreements, the contract's "term" technically ends when the songwriter has delivered the songs or copyrights to the publisher.
  3. Image titled Draft a Music Publishing Contract Step 3
    Indicate which compositions are covered. If a music publishing contract only relates to specific songs in the songwriter's repertoire, rather than all songs written within a period of time, your music publishing contract should list those songs.[7][8]
    • With publishing contracts known as "exclusive songwriter agreements," also called "staff writer" contracts, a songwriter grants rights to the publisher for all songs he or she writes during a specific period of time.
    • A publisher signing an exclusive songwriter agreement is responsible for exploiting that song, meaning the publisher will find a recording artist to record the song. These agreements are more common with songwriters who are not themselves performers or recording artists.
    • Recording artists who also write their own songs may enter publishing contracts covering specific compositions, or the compositions of all the songs recorded on a specific album.
  4. Image titled Draft a Music Publishing Contract Step 4
    Outline the responsibilities of the parties. When you draft a music publishing contract, both the publisher and the songwriter have duties and responsibilities to each other that should be specifically defined.[9]
    • Generally, the songwriter is responsible for delivering songs to the publisher, and the publisher is responsible for exploiting those songs to earn money for the songwriter and the publisher.
    • It might help to think of the publisher as an agent for the song. While an artist's agent exploits the artist's career by getting him or her good gigs and promotional opportunities, the publisher exploits the song by getting it into the best position to make money for the songwriter.
    • For example, the publisher may promote the song to a popular recording artist and get him or her to record the song and make it a hit.
  5. Image titled Draft a Music Publishing Contract Step 5
    Provide the publisher with power of attorney. To perform his or her duties under the contract, the publisher must have the legal right to sign documents in the songwriter's name, including documents related to copyright registration and protection.[10]
    • Typically the power of attorney clause includes a provision that the songwriter must be given the first opportunity to sign any required documents, but that after a set period of time the publisher can sign them if the songwriter isn't able to do so.
    • Music publishing contracts also generally give the publisher the right to use the songwriter's name and likeness in connection with the printing, sale, and distribution of the composition.

Part 2
Assigning Copyrights

  1. Image titled Draft a Music Publishing Contract Step 6
    Define the time and territory in which the publisher will control the copyrights for the songwriter's songs. The music publishing copyright effectively gives the publisher the ability to administer the songwriter's copyrights in the compositions to the songs written during the period of the contract. The publishing contract describes the limits of that copyright assignment.[11][12]
    • The publisher often has the right to exploit the copyrights in the compositions included in the agreement throughout the world.
    • However, some publishing contracts may specify that the publisher's rights only extend to a particular geographical area. For example, a songwriter may have one publisher for Europe and another publisher for North America.
    • The publisher may have the ability to administer the songwriter's copyrights for the lifetime of the copyright, defined as the life of the songwriter plus 70 years. However, the agreement may only last a specified number of years.
    • There are several different rights included in the composition copyright, and the contract may not grant the publisher the power to exploit all of those rights.
    • For example, many songwriters reserve their sync rights, which are fees paid when a song is used in connection with a visual image _ such as a song played in the background on a commercial, or a song included on a movie soundtrack.
    • The songwriter also may enter into a separate publishing contract that solely covers the sync rights in the music compositions. These publishing contracts are far more limited, typically only cover specific songs, and often are non-exclusive.
  2. Image titled Draft a Music Publishing Contract Step 7
    Provide the royalty rate. The royalty rate is the amount of money the songwriter earns when his or her song is used by someone else. The publisher typically is responsible for collecting these amounts and dispersing them to the songwriter.[13][14]
    • The contract may describe different rates for different types of uses. For example, the songwriter may earn one royalty rate for the sale of sheet music, and a different rate for the sale of a sync license or performance license.
    • Some rates are standard and not subject to negotiation. For example, if an artist wants to cover a song previously recorded by someone else, he or she would pay a mechanical license, the rate of which is established in U.S. copyright law.
    • A standard music publishing contract provides that the songwriter gets 50 percent of the royalties, and the publisher gets the other 50 percent.
  3. Image titled Draft a Music Publishing Contract Step 8
    Create a payment schedule. Your contract should establish how often the publisher will send the songwriter a check for royalty payments, including the dates for payments and the period of time that will be covered by each payment.[15]
    • Under most music publishing contracts, the publisher pays the songwriter an advance against future earnings from the song. This advance typically is paid when the publishing contract goes into effect.
    • The advance is recoupable from royalties earned from the songwriter's compositions over the term of the contract, meaning the songwriter shouldn't expect a royalty check from the publisher until the compositions have earned a greater amount in royalties than the advance the songwriter was initially given.
    • However, the songwriter will receive a statement on each date a check is supposed to be issued under the contract – typically either monthly or quarterly. The statement details how much the songwriter has earned in royalties and how much of the advance has been repaid.
    • For example, suppose the publisher gives the songwriter a $100,000 advance. In the first quarter of the contract, the songs covered by the contract earn $20,000 in royalties for the songwriter. The songwriter therefore would receive a statement stating that $20,000 of the advance had been repaid and there was an $80,000 balance on the account still to be repaid.
    • Once the songwriter earned $100,000 in royalties, a check would accompany the statement.
  4. Image titled Draft a Music Publishing Contract Step 9
    Describe accounting and auditing procedures. Regular audits protect the songwriter and help ensure that royalty rates are being calculated accurately. Your music publishing contract should include basic accounting procedures and specify when the songwriter (or the songwriter's accountant) can audit the publisher's books.[16]
    • Standard music publishing contracts typically allow the songwriter (or the songwriter's accountant) to inspect the books of the publisher at any time.
    • Conducting a full audit may require advance notice to the publisher.
    • Each statement that accompanies the monthly or quarterly payments to the songwriter provides a breakdown of the royalties earned and the division of those royalties between the songwriter and the publisher.

Part 3
Including Miscellaneous Provisions

  1. Image titled Draft a Music Publishing Contract Step 10
    Establish what constitutes breach of contract. Music publishing contracts typically contain a miscellaneous clause that describes how the contract may be breached and requires notice to the other party before taking further action such as filing a lawsuit.[17]
    • Typically, if either the songwriter or the publisher believes the other has failed to perform their duties under the contract, they must deliver written notice to that effect.
    • Upon receipt of that written notice, the party alleged to be in breach of the contract has a specific amount of time – usually 10 to 15 days – to either remedy the problem or explain why their actions did not constitute breach of contract.
    • For example, suppose a songwriter believes her publisher has not paid royalties owed. She sends notice to the publisher telling him that he owes her money. When the publisher receives that notice, he reviews his books and determines the songwriter is correct, so he sends her a check.
    • Typically this notice procedure must be followed before either party can file a lawsuit alleging breach of contract.
  2. Image titled Draft a Music Publishing Contract Step 11
    Outline the procedure for handling disputes. A music publishing contract typically establishes which forum is appropriate for hearing contract disputes, and which state's law should be used to interpret the contract itself.[18]
    • Music publishing contracts may allow lawsuits in court, or provide arbitration as the exclusive means of settling disputes. If the contract requires arbitration, it typically will outline the procedures for requesting arbitrators and name an arbitration organization which must be used.
    • The contract also must identify which state's law governs it. Typically a music publishing contract will be governed by the laws of the state where the publisher is located.
  3. Image titled Draft a Music Publishing Contract Step 12
    Provide standard warranties and indemnities. These clauses are standard provisions, or "boilerplate," that are included in all contracts. They typically are not a subject of negotiation because they provide basic protection to both parties.[19]
    • The songwriter warrants that he or she owns the copyrights in the compositions covered by the contract, and that the compositions don't infringe anyone else's copyrights.
    • He or she also indemnifies, or protects, the publisher against any losses the publisher might incur if it turns out the songwriter doesn't own the copyrights, or one of the compositions infringes someone else's copyrights.
    • This indemnification provision essentially means that if it turns out one of the compositions infringes someone else's copyrights, the publisher won't be held accountable or forced to pay damages to the person whose copyright was infringed.
    • The publisher makes warranties and indemnifications as well, related to his or her ability to enter the contract and exploit the copyrights as agreed.

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Categories: Songs and Song Writing