Contracts: Publishers

Introduction

So you have a cute little publishing company nipping at your heels, or your client’s heels for that sake. They promise you their sync department will get right on it, they promise you writing trips to exotic lands and places and brag about their successes and hits. And then the moment’s there. They send you a deal memo or possibly the final deal already. Exciting! But what should you look out for in a publishing deal? Let’s take a look.

Please note, if you have received a deal offer always consult with industry professionals and/or legal counsel. Failure to do so might result in a bad deal. Remember, the other party often wins when you sign a bad deal, so they won’t prevent it from happening. Some countries even have national organisations (such as PROs) that can help you or inform you for free.

What kind of deals

First off it’s good to check what kind of deal you have been offered. You have to remember of course that even though a certain deal might be offered, any of the points can be amended and customized. At the end of the day anything can be put into a deal if both parties agree to it. So make sure to double and triple check before agreeing to anything. We’ve run through some of these deals before so have a look.

Songwriting deal

This is when a songwriter signs wholly and completely to a publisher. All the songs they produce also belong to the publisher (how much etc. depends on the deal you sign) and this is often a more long-term collaboration. Sometimes the back catalogue is included, sometimes it isn’t. Often these deals include an advance, make sure to check in the deal what happens if that advance isn’t recouped. The last thing you want is to get stuck to a contract for extended periods of time against your wishes.

Administration

This is quite a ‘dry’ deal. The publisher just makes sure that all money earned worldwide comes back to the songwriter (and some of it to the publisher, of course). It’s a purely administrational deal (hence the term admin). These deals are only really interesting to publishers if there’s enough money involved, so small time players typically don’t get these deals.

Title / song deal

Sometimes you only want to sign away a certain part of your catalogue, for example, an EP that you think would do really well in commercials. It is then possible to only sign away a certain set of songs, or even just one song, to a publisher. They will still exploit the copyright but of course they have much less incentive. These are often short-term collaborations, although they can always be extended when successful. And if there is success you can bet the publisher will want to continue the collaboration.

Co-publishing

A co-publishing deal is very similar to a joint venture deal with record labels. In this scenario you basically ‘split’ the publisher’s share 50%. So instead of signing away, for example 50%, to the publisher and keeping 50%, in this case you will get (theoretically) 75% and the publisher gets 25%. This is comparable to a kickback (discussed later on) as well. Co-publishing can also refer to multiple publishers working on one song (such as administering a song) or licensing their songs to a foreign sub-publisher.

360 deal

As you might have read in the article on record labels, sometimes they will offer 360 deals. This means they are entitled to income from every revenue stream an artist has, including publishing. I am always wary of signing both publishing and master rights to the same company but it does happen quite often. At the end of the day it’s up to yourself to decide what value they can add, and sometimes it can be a dealbreaker if you don’t want to sign away your publishing for a label, so it’s worth considering in that case.

Deal points

When negotiating a deal there’s a couple of pillars that the deal will stand on. What’s important is that you go through the list yourself and decide what you would be OK with and what not in a deal. Sometimes you’ll have to concede a little on one pillar to gain on the other.

Duration

What’s important to check is how long the deal is for, also known as the term. Are you signing away your songs for duration of copyright (after your death + 70 years)? Are you signing away for 5 years? 10? Will your rights revert back to you after 15 years? Or are you writing for the publisher for 20 years?

Make sure to check what the term of copyright return is and what the term of the agreement is. Sometimes you will have a songwriter deal for 5 years but the composition under this agreement will stay with the publisher for much longer. There are no real industry standards and it all depends on your track record as a songwriter, the tracks you have written in the past, any hits and of course any major milestones coming up.

Territory

Almost all contracts I’ve seen have been for worldwide use, but sometimes, if you’re savvy enough, you can exclude certain key territories. Say for example you are very succesful in your home territory, you can try and negotiate that territory out of the deal, so you end up with more performance income from radio and live. This is quite tricky though and it does result in an administrative mess, so companies aren’t inclined to negotiate territory easily.

Of course none of the indie publishers can serve you worldwide, but they can license sub-publishers to do so in relevant territories on their behalf. Make sure you don’t pay for these sub-publishers, because at the end of the day it’s their responsibility to make sure they can fulfill their commitment to you. Often publishers will try charging a percentage (anywhere between 5-20%) to you when sub publishers are involved.

Materials

What exactly are you signing? This of course largely depends on the deal but it’s always good to double check for yourself. Are you signing yourself away as a songwriter, are you signing away 1 song, an album or anything in between? This can be career-defining so make sure to double check what you are signing away.

Kickback

This was briefly mentioned earlier. Instead of a co-publishing deal sometimes you can get a kickback, this means that a certain % of the publisher’s share will be kicked back to you as an artist. This is mainly used in countries where the publisher’s share is a set percentage, such as in the Netherlands (33,33% for the curious souls out there).

Advances

So the deal looks good, but let’s talk $$$. How much is the publisher willing to pay you up front? It’s quite easy for publishers to calculate how much money your composition will generate in the term of the deal, so don’t be fooled. The money they are offering is not that risky for them per se since they know what the guaranteed revenue will be on said composition. Because of this, beware of advances. They can be an incentive for the publisher to work harder but it can also be a way for them to lock you in the contract, because let’s talk:

Extensions clauses

In some contracts, if you haven’t recouped the advance the deal is automatically extended for an set amount of time (6 months to a year are common, but any time periods can be used). This can be tricky if the composition you signed away didn’t do well or if you have more succes as a performer than a writer. You’ll still be stuck to the contract.

Legal Advice

It’s always good to seek out the advice of a lawyer or a legal specialist before signing anything. They can often find small clauses, sneakily worded sentences and plain wrong mistakes.

Please note: if you have received a deal offer, always consult with industry professionals and/or legal counsel. Failure to do so might result in a bad deal. Remember, the other party often wins when you sign a bad deal, they won’t prevent it from happening. Some countries even have national organisations (such as PROs) that can help you or inform you for free.

Conclusion

Hopefully this can give you some reference points on what to look out for in a publishing deal. It’s tricky content and publishers (just like record labels!) can be sneaky in their deals. Of course for every rotten apple out there, there’s great publishers as well. The saying in the industry goes “When everything is going well no one needs contracts.” It might look good at first glance but often there’s snakes hidden in the grass. If it’s too good to be true, it probably is. Make sure to always check with professionals and trust your gut instinct. More often than not it’ll be bang on the money. If you have any questions or remarks reach out to me at info@bohemianmgmt.com and we can have a chat. I can also take a look at any deals you want advise on of course.

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