Music publishing agreements series; (part 9) How many songs will I be obliged to write?

For a composer who is also a recording artist, the publisher will usually insist that during each one year period of the term (usually called a “period”) the composer:

1. Records an album, a specified percentage of which consists of the writer’s own songs; and

2. Has that album released at least in South Africa (or your domestic market), the UK or the USA by a major record company or an established independent label. These days, publishers are varying this commitment to a number of individual songs, due to the internet download and ringtone trend. They are also varying it where they sign a composer for the increasingly important functions of writing film scores, library music and other non-album-release purposes. This is referred to as the composer’s “minimum commitment.” A typical minimum commitment clause for a performer-composer in the traditional music environment would therefore set out in detail the required percentage, the definitions of “album”, “release”, “song” and “major record company.”

Publishers often impose a requirement that a certain percentage (say 90%) of an album must consist of songs written by the writer, restricting the writer who is recording, say, a ten track album to recording just one song which is not written by him (a “cover”). This is to be found in most publishing agreements, and places pressure on the writer, who must now deliver enough material. If he does not do so, he will be in breach. In addition, if, for example, the writer collaborates with other songwriters (or maybe his producer), or uses samples, that might result in the writer not fulfilling the minimum commitment requirement, he will again be in breach.

For this reason, it is imperative that the writer determines what the publisher is able to do under the agreement if the writer falls short of the minimum commitment. Usually, the publisher will be able to do one of two things:

1. Either extend the duration of the then current period until such time as the writer makes up the shortfall; or

2. Reduce the writer’s advance accordingly so that, for example, a writer who was due an advance of R50 000 for 90% of an album but who only wrote 45% of an album would only be entitled to a R25 000 advance.

To avoid an agreement being extended ad infinitum, publishers usually agree that no one individual period of the term will last more than three years. In fact, an agreement that does not contain such a limitation would run the risk of being unenforceable in law because it might be found to be an unreasonable restraint of trade at common law. (in California, this has been officially legislated at seven years, but there is no such formal legislation in South Africa).

For writers who are not also recording artists, the minimum commitment cannot be defined by reference to the number of recordings released by the writer and it is therefore necessary to agree on an alternative minimum commitment with the publisher. This might be a requirement for the writer to write at least ten songs in each period, with such songs being recorded by other recording artists signed to major record companies.