Music publishing agreements series; (part 7) When should I conclude a publishing agreement?

There is no simple answer to this question. Many professional advisers in the music industry take the view that you should wait until you have signed a recording agreement and, ideally, have had some hits, before signing to a publisher. This answer presumes that your negotiating position will be that much stronger if you wait until then, and this might well be the case. Equally, though, if your initial record releases are not successful your negotiating position may have been weakened, because the publisher will now begin to doubt his initial enthusiasm.

Thus, careful consideration is required. Generally, it is true that it might be better to wait until you have entered into a recording agreement, but on the other hand, perhaps your chosen publisher will hopefully be in a position to help you find a suitable record company. In this competitive market, it is becoming increasingly difficult to secure a recording contract. But publishers are in a position to help with this problem. After all, their investment in the songwriter is unlikely to pay off unless and until the songwriter starts making and releasing records.

Some publishers are now effectively acting as independent labels as well, recording and releasing records by their writers in order to build up their profile and to assist in the conclusion of long term recording agreements with the major record companies (probably by licensing them). This 360 degree-type overlap might be a good or bad thing, but the reality is that it is happening more and more.

As a beginner, you always need to take a “reward for success” approach in negotiating your publishing deal. If you do sign a publishing agreement early on in your career, your long-term position can be protected by the agreement being structured in a way that, in addition to receiving an advance on signature of the agreement you get additional advances: -

1. When you sign a recording agreement;

2. When you release your first album; and

3. When you have hits (i.e. so-called “chart-bonuses”). Also, a “mini-max” formula is possible whereby success is rewarded by the payment of higher advances.

A word of warning: unless it is an acknowledged 360 deal, if your record company tries to insist that you should conclude a publishing agreement with one of its affiliated companies (or, indeed, vice versa) then you should resist this very strongly unless the terms offered are obviously attractive and very competitive with current market rates, and no conflict of interest is apparent.

Generally it is better to have a publisher who is not the same company, or associated with, the record company. I say this because a healthy tension should exist between these two entities. The publishers should be pressurising the record company on your behalf, in order to maximise your songwriting royalties. He should also be looking at issues like the controlled compositions clause in your recording agreement with a very jaundiced eye.

If Warner, for example, happens to be both your record company and publisher, this is unlikely to happen unless you specifically address it in the contract. The record company or publisher would probably be more able to abuse its position by overlapping like this, and you should be given the freedom to contract for your publishing with whoever you wish. Generally, (but not always) it is preferable to be with totally separate record and publishing companies.

Having said that, most labels are these days insisting on 360 degree contracts (partial would imply recording and publishing or recording and management). This is a new and different animal completely.