Music publishing agreements series; (part 20) Who will own my songs?

In the past, publishers virtually always used to own the copyright in the songs forever (i.e. “in perpetuity” or for the “life of copyright” – this is still sometimes the case, and is obviously what the publisher will push for, if he can).

In recent years, however, it has become quite common for the publisher’s ownership to be limited in time. Typically, this period of time expires after a specified number of years – usually anything from three to twenty years – after the term of the contract ends. This period is often referred to as “the Rights Period.”

At the end of the rights period, all the songs will revert to the composer so that he is then free to place them with another publisher (or, indeed, to sell them) and, in return, get further advances and, perhaps, improved royalty rates. Some publishers ask for a longer rights period for songs which have been “covered.” This might be considered unfair because, of course, they have probably already been rewarded with a higher royalty.

The duration of the rights period can be one of the most hotly-contested issues during the negotiation of a publishing agreement. It is potentially of crucial importance to a composer. If a publisher insists on either “life of copyright” or a long rights period (anything in excess of, say, the term plus seven years) then the composer might be able to persuade the publisher to pay some higher royalties after a period of time.

Can I get my songs back if they are not exploited?

It is the publisher’s responsibility to exploit the songs. If the compositions are allowed to ‘sit on the shelf’ for any significant period, then, irrespective of the duration of the rights period, the composer should attempt to re-acquire his songs so that he, the composer, can seek to exploit them through other means.

For this reason, certain safeguards should be built into the agreement. Typically, a publishing agreement should provide that if a song has not been commercially exploited within two years of the term coming to an end, the composer can, by following a specified procedure, request a reversion of the rights in that song which reversion cannot unreasonably be withheld. I urge you to negotiate hard for this.

The effect of waiting for rights to revert to the composer will be different in every case. For those artists who might through luck, judgment, marketing etc., enjoy a particular success at a certain moment in their careers, not being able to release material at the ‘right’ moment may cause a considerable loss of revenue. So even if rights do revert, the more relevant question might be ‘have they reverted in time?’ You do not have a crystal ball, but the rule of thumb (which the publisher will obviously oppose) should be “the sooner the better.”

If I am a member of a group, will any special provisions apply?

Like marriages, many groups end up in divorce. The so-called “leaving member” provisions of publishing agreements with groups can now run to many complicated pages, as they do in recording agreements. Like the record company, obviously, the publisher cannot prevent groups “divorcing.” What he can do, however, is to provide in the agreement that the publisher will be entitled not just to songs which a composer writes and which his/her group record but also songs which a composer composes as a solo artist. The “leaving member” provisions will address subjects such as:

1. New members joining the group, and the creation of new songwriting partnerships;

2. Members leaving the group: the publisher may have the right to terminate the agreement in respect of the group and carry on just with the person who has left;

3. The advances and royalties payable to leaving and solo members;

4. Whether the leaving/solo member’s royalties can be recouped (cross-collateralised) with the group’s royalties.

What are the implications of sampling and/or copying?

You must be very careful before you sample other people’s songs in your recordings. To do so without permission is one of the biggest “no-no’s” in the music industry. Many actionable copyright infringements have taken place in this way (particularly in the field of Rap music, when rappers, especially in the earlier years, felt they had the right to sample old songs indiscriminately. Although not entirely, this practice has become more strictly controlled in recent years, and more rappers are using legitimate samples, after paying the appropriate royalties to the owner of the recording.