Publishing contract
Encyclopedia
A publishing contract is a legal contract
between a publisher and a writer
or author
(or more than one), to publish written material by the writer(s) or author(s). This may involve a single written work, or a series of works.
In the case of music publishing, the emphasis is not on printed or recorded works as much as on promotion
of a musical composition
, and/or its referral to a suitable recording artist. A music publisher who does produce (or contract to issue) sheet music
is known as a music print publisher.
(1) Single Song Agreement: A single song deal is an agreement between the writer and the music publisher in which the writer grants certain rights to a publisher for one or more songs. In single song deals, the writer is paid a one-time recoupable advance.
(2) Exclusive Song Writer Agreement ("ESWA"): Under the ESWA or "staff writer" contract, the song writer generally grants all of the publisher’s share of the income to the music publisher. The writer’s services are exclusive to the music publishers for a specified period of time. Thus, any compositions written within that period belong to the music publisher. These deals are usually offered to writers with some degree of success. Because the writer has a track record of writing hits, the publisher feels confident that it will recoup its investment. In return for signing away exclusive rights to some or all the writer’s songs, the writer gets paid by the publisher a negotiated advance against future royalties. The advance amount naturally depends on the writer’s bargaining power and on the competition in marketplace, if any. Under a staff writer deal, the writer is paid on a weekly or quarterly basis. An ESWA can be either tied to a record contract, or independent of a record contract.
(3) Co-publishing Agreement ("Co-pub"): The co-publishing ("co-pub") deal is perhaps the most common publishing agreement. Under this deal, the songwriter and the music publisher are "co-owners" of the copyrights in the musical compositions. The writer becomes the "co-publisher" (i.e. co-owner) with the music publisher based on an agreed split of the royalties. The song writer assigns an agreed percentage to the publisher, usually (but not always), a 50/50 split. Thus, the writer conveys _ of the publisher's share to the publisher, but retains all of writer’s share. In a typical "75/25 co-pub deal," the writer gets 100% of the song writer’s share, and 50% of the publisher’s share, or 75% of the entire copyrights, with the remaining 25% going to the publisher. Thus, when royalties are due and payable, the writer/co-publisher will receive 75% of the income, while the publisher will retain 25%.
(4) Administration Agreement ("Admin"): An administrative agreement takes place between a songwriter/publisher and an independent administrator, or between a writer/publisher and another music publisher. In an "admin deal," the songwriter self-publishes and merely licenses songs to the music publisher for a term of years and for an agreed royalty split. Under this agreement, the music publisher simply administers and exploits the copyrights for another publisher/copyright owner. Only the most popular song writers can even consider asking for an admin deal. Under this coveted arrangement, ownership of the copyright is usually not transferred to the administrator. Instead, the music publisher gets 10-20% of the gross royalties received from administering and exploiting the songs for a certain period of time and for a certain territory.
(5) Collection Agreement: A collection agreement is like an admin deal where the writer retains the copyrights, except that the publisher does not perform exploitation functions; like an accountant or business manager, it merely collects and disburses available royalty income.
(6) Sub-publishing Agreement: These are basically music publishing deals in foreign territories between a US publisher and a publisher in a foreign territory. They are like admin or collection deals (with no ownership of the copyrights being transferred to the subpublisher), but limited to one or more countries outside the US. Under this publishing deal, the publisher allows the subpublisher to act on its behalf in certain foreign territories. Often, they are limited to a group of countries, such as European Union (EU), GAS (Germany, Austria, Switzerland), Latin America, etc.
(7) Purchase Agreement: Under this agreement, one music publisher acquires in whole or in part the catalogue of another music publisher, sort of like a merger of companies. In this case, a "due diligence" investigation is done to determine the value of the catalogue.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
between a publisher and a writer
Writer
A writer is a person who produces literature, such as novels, short stories, plays, screenplays, poetry, or other literary art. Skilled writers are able to use language to portray ideas and images....
or author
Author
An author is broadly defined as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created. Narrowly defined, an author is the originator of any written work.-Legal significance:...
(or more than one), to publish written material by the writer(s) or author(s). This may involve a single written work, or a series of works.
In the case of music publishing, the emphasis is not on printed or recorded works as much as on promotion
Promotion (marketing)
Promotion is one of the four elements of marketing mix . It is the communication link between sellers and buyers for the purpose of influencing, informing, or persuading a potential buyer's purchasing decision....
of a musical composition
Musical composition
Musical composition can refer to an original piece of music, the structure of a musical piece, or the process of creating a new piece of music. People who practice composition are called composers.- Musical compositions :...
, and/or its referral to a suitable recording artist. A music publisher who does produce (or contract to issue) sheet music
Sheet music
Sheet music is a hand-written or printed form of music notation that uses modern musical symbols; like its analogs—books, pamphlets, etc.—the medium of sheet music typically is paper , although the access to musical notation in recent years includes also presentation on computer screens...
is known as a music print publisher.
Major types of music publishing agreements
The seven (7) basic music publishing contracts are:(1) Single Song Agreement: A single song deal is an agreement between the writer and the music publisher in which the writer grants certain rights to a publisher for one or more songs. In single song deals, the writer is paid a one-time recoupable advance.
(2) Exclusive Song Writer Agreement ("ESWA"): Under the ESWA or "staff writer" contract, the song writer generally grants all of the publisher’s share of the income to the music publisher. The writer’s services are exclusive to the music publishers for a specified period of time. Thus, any compositions written within that period belong to the music publisher. These deals are usually offered to writers with some degree of success. Because the writer has a track record of writing hits, the publisher feels confident that it will recoup its investment. In return for signing away exclusive rights to some or all the writer’s songs, the writer gets paid by the publisher a negotiated advance against future royalties. The advance amount naturally depends on the writer’s bargaining power and on the competition in marketplace, if any. Under a staff writer deal, the writer is paid on a weekly or quarterly basis. An ESWA can be either tied to a record contract, or independent of a record contract.
(3) Co-publishing Agreement ("Co-pub"): The co-publishing ("co-pub") deal is perhaps the most common publishing agreement. Under this deal, the songwriter and the music publisher are "co-owners" of the copyrights in the musical compositions. The writer becomes the "co-publisher" (i.e. co-owner) with the music publisher based on an agreed split of the royalties. The song writer assigns an agreed percentage to the publisher, usually (but not always), a 50/50 split. Thus, the writer conveys _ of the publisher's share to the publisher, but retains all of writer’s share. In a typical "75/25 co-pub deal," the writer gets 100% of the song writer’s share, and 50% of the publisher’s share, or 75% of the entire copyrights, with the remaining 25% going to the publisher. Thus, when royalties are due and payable, the writer/co-publisher will receive 75% of the income, while the publisher will retain 25%.
(4) Administration Agreement ("Admin"): An administrative agreement takes place between a songwriter/publisher and an independent administrator, or between a writer/publisher and another music publisher. In an "admin deal," the songwriter self-publishes and merely licenses songs to the music publisher for a term of years and for an agreed royalty split. Under this agreement, the music publisher simply administers and exploits the copyrights for another publisher/copyright owner. Only the most popular song writers can even consider asking for an admin deal. Under this coveted arrangement, ownership of the copyright is usually not transferred to the administrator. Instead, the music publisher gets 10-20% of the gross royalties received from administering and exploiting the songs for a certain period of time and for a certain territory.
(5) Collection Agreement: A collection agreement is like an admin deal where the writer retains the copyrights, except that the publisher does not perform exploitation functions; like an accountant or business manager, it merely collects and disburses available royalty income.
(6) Sub-publishing Agreement: These are basically music publishing deals in foreign territories between a US publisher and a publisher in a foreign territory. They are like admin or collection deals (with no ownership of the copyrights being transferred to the subpublisher), but limited to one or more countries outside the US. Under this publishing deal, the publisher allows the subpublisher to act on its behalf in certain foreign territories. Often, they are limited to a group of countries, such as European Union (EU), GAS (Germany, Austria, Switzerland), Latin America, etc.
(7) Purchase Agreement: Under this agreement, one music publisher acquires in whole or in part the catalogue of another music publisher, sort of like a merger of companies. In this case, a "due diligence" investigation is done to determine the value of the catalogue.