Written by: Sechaba Ntsiu
What is a music publishing agreement?
A music publishing agreement is a contractual agreement between a songwriter and a publisher, whereby the songwriter gives the publisher the right to exploit the songwriter’s catalogue of music, including any available back-catalogue, in exchange for compensation. Once assigned copyright ownership, the music publisher will exploit the catalogue by allowing third parties to use the work via licensing agreements in return for compensation. Having made commercial use of the music, the publisher then will collect income generated from that exploitation, to which they will then pay the songwriter an agreed royalty fee.
It is important to note that in this context, the copyright ownership that applies to this type of agreement is that of the underlying work (i.e. the song lyrics and the written music), as opposed to the ownership of the sound recording.
Paul is a songwriter who has written a number of songs which he believes will be successful. Unfortunately for Paul, his own efforts to bring attention to the songs via recording and performing them in public have mostly failed.
After one of his performances, a representative from a publishing company (‘Publishing XZ’) gets in touch with Paul and offers the opportunity to enter into a publishing agreement with the company. As a part of the agreement, Paul will be required to assign copyright ownership to select songs he has written, provided that they are not bound by any existing publishing agreements, and Paul will also be required to exclusively write music for Publishing XZ for set number of years, in which copyright ownership for work produced during that time will be owned by the company.
What are some of the contractual clauses are included in a music publishing agreement?
A minimum commitment clause will detail the quantity of material that the songwriter is required to produce during the course of the agreement. In other words, this will detail that the songwriter is required to provide X amount of songs to the publishing company by the end of the agreement.
A songwriter will usually be compensated in two different ways:
- Advance Payment(s): The music publisher will pay the songwriter an advance payment at the beginning of the agreement or via intervals during the course of the agreement.
- Royalty Payments: Royalty income is a product of the publisher exploiting the songwriter’s work via licensing. Once the publisher has collected the income from that licensing, they will pay the songwriter a royalty fee which is a predetermined percentage of that income.
It is important to note that advance payments are quirky in that even though they are paid to the songwriter by the publisher, the sum will eventually be recouped by the publisher via royalty income before the songwriter makes any money from those royalties. In other words, using the same example above, if Publisher XZ gives a Paul an advance fee of £30,000, Publisher XZ will only begin to pay Paul royalties once that £30,000 is paid back via royalty income from exploiting Paul’s work.
A territory clause will detail the parts of the world in which the publishing company can seek to exploit an artist’s work. In other words, it will detail the countries in which the company can licence the work in exchange for compensation.
A clause of this kind will detail the level of effort the publishing company has to put in to ensure that the songwriter’s work is being exploited. In other words, as music trends move quickly, in order to avoid the songwriter’s work becoming irrelevant, the clause will detail, amongst other things, what reasonable steps the publishing company needs to take in trying to exploit the music, and what happens if a songwriter’s work is not exploited within a set period of time (e.g. the rights in a particular group of songs return to the songwriter).
The Rights Being Granted
This kind of clause aims to detail the exact rights being granted from the songwriter to the publisher. As noted above, a publishing agreement will usually require a songwriter to assign copyright ownership in work being produced during the term of the agreement and, quite possibly, ownership in any work that was produced prior to the existence of the agreement, so long as that work is not already subject to an existing publishing agreement.
Further to the above, a publishing agreement will seek to detail the exact rights of exploitation which the publisher has. In other words, it will detail the forms of media in which the publisher is allowed to exploit the work, for example online medium, CDs, etc.
An exclusivity clause will detail whether or not the songwriter is required to exclusively provide their services to the publishing company during the duration of the agreement.
The clauses above are examples of some of the clauses which might feature in a music publishing agreement. The above is provided for educational purposes only. Legal advice should always be sought where required.