Music publishing agreements series; (part 19) Can I prevent my songs from being exploited in certain ways?

As the copyright-holder of a song, a publisher is free to exploit that song in any way he wishes, unless he is contractually prohibited from doing so. Some composers like to limit their publishers’ ability to “place” their songs in film soundtracks or TV/radio/cinema commercials. Others seek to prevent adaptations of a song in its original version.

Some composers do not want to hear their compositions used in any religious context, Christians do not want “satanic” bands using their compositions, use of compositions on adult or pornographic material might be objectionable to some composers and so on. This is a matter of negotiation and drafting into the publishing contract (although the Copyright Act does provide some protection in its “Moral rights” section).

What should I do once the agreement has been signed?

Some composers think that when a publishing agreement has been signed, it can be filed away. It is, however, a living document which will govern the nature of your relationship with the publisher for many years. It is crucial that you always remain aware of the detailed provisions of the agreement. I set out below a short summary of the most important matters to which you should always be attentive:

1. It might trigger the payment of additional advances to you;

2. The dates on which you deliver songs will affect the date on which the publisher must exercise its option to extend the term of the agreement for a further period;

3. Once the publisher has taken “delivery” of a song, it will be able (and indeed hopefully bears the responsibility) to safeguard your interests in it, in the event that there are any copyright/plagiarism disputed. You need to specify this in the contract.

Usually, on the delivery of each and every song to your publisher, he may ask you to sign a so-called “single song assignment.” This is not a replacement contract for your general publishing deal, which still applies. It is simply an additional document that evidences and confirms the fact that the song is delivered in terms of, and will be a song controlled by, the provisions of, the publishing agreement. Whenever your songs are released on record (whether as singles, videos or albums) you should, ideally, provide your publisher with a copy of the record, if he does not already have one.

Unscrupulous people will steal your songs if they can. To the extent that such matters are under your control, you must ensure that you are always credited as the composer of the songs when they are exploited on record, video etc. Get your publisher to do this for you. Also, your publisher should be acknowledged as the publisher of the compositions.

On many occasions, in the South African and overseas record industries, groups or bands have created music in the studio, as a collaboration between two or more members, and only the one member has bothered to register with SAMRO/NORM and has bothered to acquire credit for himself and his publisher. The other/s are therefore left out of the biggest royalty stream of all.

If you collaborate in the writing of a song with anybody other than a member of your group (if you are part of a group), then you should discuss the matter beforehand with your publisher (and manager). The publishing agreement may oblige you to make efforts to ensure that the other composer concludes an agreement with your publisher in respect of that song, or at least to acquire prior approval from your publisher.

You should also appreciate that by collaborating with other composers you may be putting yourself in a position where you may be unable to fulfil the “minimum commitment” requirements of the publishing agreement. (and if there are any changes to the membership of your Group then immediately consult the contract for the terms of the split, and advise your publisher).