Music publishing agreements series; (part 6) Why do I need a publisher?

Some songwriters show resistance to ever signing a publishing agreement: instead, they want to “publish themselves” (so-called “self-administration”) by joining the collection societies (such as SAMRO, CAPASSO, the PRS and MCPS) directly. These collection societies are less likely to pay their members advances than the publishers will (and recently SAMRO found it might not be able to do so at all, because of the National Credit Act).

But what is achieved by this is that the writer cuts out the “middleman” (i.e. the publisher) and so technically enjoys the potential to earn higher royalties (at least in terms of percentage). While this argument does indeed hold water for established songwriters, it cannot be denied that a young composer, new to the scene, generally needs help of a publisher to make his mark.

The reasons why you might wish to conclude a publishing agreement can be summarised as follows:

1. Publishers may and should invest in the writer’s career. In particular, publishers may be a supply of vital funding for a writer’s career, particularly at the beginning of such career. Unlike banks, however, publishers generally do not ask for security (e.g. suretyships and bonds over the writer’s assets and home). But like record companies, publishers will recoup advances paid to the writer. Somehow, though, there seem to be fewer questionable clauses in standard publishing agreements than in standard recording agreements.

While not stain-free, the world of publishing is slightly “cleaner” than the world of recording, and thus publishers have been the subject of less litigation than record companies (less, but not zero, it should be emphasised). Publishers put their own money at risk, albeit with some form of return on their investment if (and only if) the writer is successful. I know of no Linda Ronstadt- type case where a writer has had to pay back publishing advances out of his own pocket because his music has not sold, unlike the world of recording.

2. Publishers will try to nurture and develop the writer’s talent. Almost like a “mentor,” the publisher should give the writer constant creative input and assistance, to assist the writer in being successful. Not all publishers take this “creative” role, but the better ones, including the majors, can and do.

3. Above all, publishers should be “connected” in the industry. They should know the A&R departments at all major and independent labels, and they should be in a position to link the songwriter to other industry players in other ways as well. This includes major music providers/users like record labels, broadcasters, Simfy and iTunes, but also individuals. For example, the publisher might introduce the songwriter to lyricists and other co-writers (and thereby encourage collaboration). This happened in the case of Elton John and Bernie Taupin – one of the greatest songwriting teams of all time. It is an interesting fact (according to the publishers, anyway), that more hits are written by collaborators than by single composers.

4. Naturally, it is in the publisher’s interests that the writer’s music appears on commercially-released recordings (the biggest source of mechanical royalties). Importantly, therefore, the publisher will attempt to offer assistance in securing a recording contract for the songwriter or get the songwriter’s music recorded by others and may even release some independent records on the writer’s behalf (i.e. cross over into the world of the record label).

5. Publishers may make money available for tour support, equipment, demos, independent promotion or marketing.

6. Publishers will collect the writer’s earnings and royalties and assist in the negotiation of fees for licensing rights in the songs.

7. Publishers will always encourage the commercial exploitation of the writer’s songs. Music can be “exploited” in the following ways –

7.1. The sale of so-called “sheet music” or books etc., including the reproduction of song lyrics;

7.2. The “mechanical reproduction” of a song on records, downloads or music videos (giving rise to “mechanical royalties”);

7.3. The “synchronisation” of a song on a visual recording, for example, a film soundtrack, a corporate video, a TV programme, a video game, a visual internet website, or a TV/film commercial;

7.4. The public performance of a song or its video by being played on the radio or on television or in cinemas or live in concert etc. (giving rise to “public performance income,” administered by SAMRO and other PRO’s worldwide);

7.5. The making of so-called “cover recordings” i.e. the recording of new versions of the song by somebody other than the person who originally wrote/recorded it) which will give rise to additional mechanical royalties and public performance royalties and, possibly, synchronisation fees, if the cover is to be used on an audio-visual production;

7.6. The facilitation of legal online exploitation of the composition by way of internet download and streaming (the latter is a problem, in terms of performance rights, since streaming is not yet regarded as “public performance” in South Africa. The publishers are pushing for this to be changed).

A publisher who has made an investment in the writer (by paying possibly significant advances) will want to recoup his investment by encouraging the exploitation of the songs. Clearly, the publisher has a vested interest in ensuring that the writer is successful, because only then will the publisher earn money from the writer’s songs, by way of his percentage of the mechanical, performance or synchronisation royalties.