Music Publishing - Getting Started in the Music Business
Music Publishing is the business of exploiting your music through licensing your songs and collecting the royalties. As discussed in the What are copyrights? section, the owner of copyrighted songs has the exclusive right to perform those songs and to make, sell and distribute copies of the songs. The copyright owner may license others to use any or all of these exclusive rights for a fee. The income generated from granting a license is publishing income, and there are four main types:
Every time your music is played in public, you are owed a fee for the performance of your music. It is impossible for anyone to track every time a song is played in a club or on the radio, so publishers sign up with, or "affiliate with," one of the performance rights societies: BMI (Broadcast Music Incorporated), ASCAP (American Society of Composers, Authors and Publishers) and SESAC. These groups issue performance licenses to radio and television stations, nightclubs, restaurants, and so forth, so that these businesses can play a variety of music. The societies then track and collect the revenues and pay the copyright owners.
When you issue a license to a record company to manufacture and distribute copies of your songs on vinyl and CDs, the record company will owe you a fixed price per song on each copy sold. This fixed fee is the "mechanical royalty rate," and it can be either negotiated and set in your recording contract, or based on the current statutory rate as fixed by the Copyright Act. The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; the current statutory mechanical rate is 9.10 Cents for songs 5 minutes or less, or 1.75 Cents per minute or fraction thereof per unit sold - whichever is greater. The Harry Fox Agency, a subsidiary of The National Music Publishers' Association, is available to grant mechanical licenses for its almost 28,000 publisher clients. For more information, contact:
Harry Fox Agency
711 Third Avenue, Eight Floor, New York, NY 10017
(212) 834-0100; fax (212) 953-2384
A "synch" license is what you grant to film or television productions to allow them to use your song as an accompaniment to film and TV pictures. There is no standard industry fee for synch licenses. The fees are negotiated and depend on the importance of the particular song and how it is used in the production. In a situation where a popular song is used as the basis of a scene, such as the "Old Time Rock and Roll" scene in "Risky Business," the fee can be in the hundreds of thousands of dollars. For local television commercials and low-budget films, the fees are whatever you can negotiate.
These royalties are generated by any publication of your songs in written sheet music or a "folio", which is a book of songs. This category is not a big earner for many artists, but "Greatest Hits" print anthologies published for artists like Joni Mitchell and Led Zeppelin are examples of popular printed music. For each book or sheet sold, the copyright owner of those songs receives a percentage of the retail price.
NOTE: The TMO has compiled brief summaries of some of the Federal laws pertaining to the music business. Please visit our appendix.
A publisher is responsible for "administering the rights" associated with your copyrights, which involves getting your songs played, issuing the appropriate licenses and collecting the money. In the standard arrangement, a songwriter will sign over her copyrights to the publishing company for administration, and in turn the publishing company agrees to pay 50% of all revenues collected to the writer.
The publisher collects mechanical, synchronization, print and foreign release income for the author. The company keeps the "publisher's share" and pays you the "writer's share." The one exception to this arrangement is in the performance income collected by performing rights societies. The societies issue the writer's share directly to you, and issue the publisher its share separately.
Subpublishing: I have a popular song in a foreign country, but don’t speak the language and am not familiar with their music business customs and practices. How can I take advantage of business opportunities related to my work over there and ensure that I am collecting the money I am owed for use of my work?
Being thousands of miles away makes it impossible to adequately conduct business without the help of a subpublisher, a foreign representative who will act on your behalf with regards to your intellectual property. Your US publisher allows the foreign publisher (subpublisher) to act on its behalf in that respective territory. Each foreign territory has its own particular rules in licensing music, collecting royalties, and protecting copyrights. For this reason, it is incredibly important to select a subpublisher that you can work with and trust. A good foreign representative will be well-versed in the local rules and procedures regarding business affairs surrounding your music, and have a music business network in place within the territory.
What exactly does a subpublisher do?
A subpublisher functions much like your own music publisher in the US. The subpublisher protects your copyrights, registers songs with the local mechanical and performance collection societies, promotes new uses for your work, collects royalties, audits royalty statements from users of your work, negotiates licenses, and sues infringers.
Foreign publishers perform a combination of administrative and promotional tasks. Some do one or the other, while some do a little of both.It is important to match your interests with the strengths of the subpublisher. If you are an artist looking to ensure that royalties are collected for use of your song, then choosing a subpublisher with strength in administrative ability is ideal. If you are looking for new uses for your song, then selecting a subpublisher with quality contacts in the local entertainment industry would be ideal.
Another thing to keep in mind is the geographical reach of the publishing company. Some publishers have offices worldwide, while some only have offices in specific territories. If you go with a worldwide publisher any problems that arise abroad can usually be resolved through the US office. This makes conducting business and communication more efficient since you are not trying to get a hold of a publishing office in another time zone. The biggest fear in going with a worldwide publishing company is that their artist catalogue is so extensive that your work may not get the personal attention and care that you desire. Another concern is that offices abroad may run less efficiently than the US office.
Hiring independent publishing companies on a territory by territory basis can be beneficial in that they may be able to give you more individualized attention. They may also know the lay of the land better in their specific region. Your US publisher may already have subpublishers abroad, in which case it might be easiest to allow them to handle your affairs.
Protect yourself: the subpublishing agreement
Your goal in negotiating any contract should be to maximize profits and minimize risk. To do this you want to negotiate favorable contract terms for yourself. What follows is a list of common contract elements that you will want to be familiar with so that you (or your publishing company on your behalf) may consider them when you negotiate a subpublishing agreement.
· Term – The standard length of a subpublishing agreement is generally three to five years. Three years is the minimum duration foreign royalty collection societies often accept. Contract length can be negotiable dependent upon the following various factors (many of which are discussed later in this section).
o Advance amount
o Retention rights for local cover recordings
o Right to collect “pipeline” royalties (money earned prior to the expiration of the term of the subpublishing agreement, but not yet paid by the music user until after the end of the term)
o Released-album guarantees
o Extensions if advances have not been recouped
o Rules of local performing rights societies
o Suspensions due to breaches
o Extensions based on the non-achievement of guaranteed earnings plateaus
· Compositions Controlled by the Agreement – Agreement may comprise the entire catalogue of a US publisher, all songs written by a particular songwriter/artist, select compositions, or an individual song.
o In agreements for the entire catalogue, the following language is commonplace
§ "Publisher grants to Subpublisher the following rights in and to all the musical compositions listed on Schedule A as well as any and all musical compositions currently or hereafter owned or controlled by Publisher during the terms of this Agreement."
· This usually entails all future songs acquired during the agreement duration as well.
· Royalty Percentages – The foreign representative’s compensation is always based upon the percentage of money generated by the songs controlled by the subpublishing agreement. Generally, this percentage is anywhere from 10%-25%. For superstar artists, this percentage can get to as low as 5%.
· Local Cover Recordings – Where a subpublisher is hired for the purpose of promotion, most agreements provide that the subpublisher can take a larger percentage of the income that is generated from a local recording (usually a “cover”).
o Be wary of language that provides that, if a local recording is secured, the subpublisher’s percentage on all versions of the song contained on that cover record will be increased.
§ This kind of provision is unfair if the original US version is a major hit. The exception is when the “cover” becomes a major hit in the foreign territory, and the original US version is not generating income in the foreign territory.
· Increased Fees for Cover Records – Known as an “increased cover version percentage” clause, this only applies to mechanical income (CD sales, downloads, other audio recordings; things that can be counted on a per unit basis).
o The subpublisher sometimes will take an increased fee on radio and television performance income generated by the cover version of the song. This becomes hard to monitor because performing rights societies do not account separately for different broadcast versions of the same song.
· Print – the US publisher generally receives 12.5%-15% of the retail price on printed editions of all compositions, or 50% of the subpublisher’s net income.
o Usually not a major source of income
· Advances – This is the amount of money you will receive up front, and depending on the clout that your musical catalogue has, the advance amount can vary widely. If a song/catalogue is likely to generate income in the subpublisher’s territory, advance amounts upwards of six-figures is not unusual.
o The advance amount should not be the only factor considered in choosing a foreign representative. Other factors to keep in mind;
§ Company integrity
§ Reputation for administration and promotion
§ Royalty rates
§ Retention rights
§ Duration of the agreement
o Do not underestimate a foreign representative because of poor English ability. A subpublisher knows their business and more importantly, their market.
o How Advances are Paid – Advances are paid in any number of ways.
§ One-time payment upon signing (e.g., $10,000 upon execution of the agreement)
§ Specified advances at the start of each one-year period of the agreement (e.g., $10,000 upon execution of agreement, and $10,000 each year of the agreement thereafter)
§ Advances upon the release of each album, with reductions depending on the number of songs controlled by the artist on each such album (e.g., $10,000 upon the album’s release in the foreign territory provided the writer/artist has written at least x% of the compositions on the album)
§ Advances upon recouping all or a specified percentage of the previous advance (e.g., $100,000 upon recouping x% of the previous $100,000 advance)
§ Advances on local chart activity (e.g., if a song reaches the top 10, then $10,000. If it reaches number one, then another $10,000)
§ Advances based on a company’s acquisition of other US catalogues (e.g., a mutually agreeable advance in the event that the US publisher acquires a major company for representation)
§ Advances based on actual earnings in the foreign territory (e.g., if an album earns $50,000 in its first year, an additional advance of $50,000 will be paid to US publisher)
· At-Source Royalty Payments – This provision ensures that there will be no extra charges or deductions from royalties passing from one foreign territory to another before being passed on to the US. Typical language follows;
o “All royalties payable shall be based on gross income received at the source and shall not in any way be reduced by any charges including, but not limited to, any sublicensees granted by Subpublisher except only for: (1) those fees and commissions paid by the Subpublisher to the performing rights societies, mechanical license societies, and other collection agents in the territory; and (2) payments made by the Subpublisher for any “value-added” taxes and other taxes, if any, required to be deducted in the territory.”
§ This language prevents foreign companies from double-deducting fees on monies earned in portions of the territory covered.
· E.g., if you have an agreement with Germany, Austria, and Switzerland, the agreement will prevent the German affiliate from deducting fees that may have been already deducted by Austria and Switzerland. Without the provision, the German company could deduct 20%, then forward the remaining 80% to Austria who would deduct 20%, then forward the remaining onto Switzerland, whom would also take 20%.
· Rights Granted to the Foreign Representative – The writer/publisher usually grants the following rights in and to the musical compositions to the subpublisher.
o Mechanical Rights – The right to issue mechanical licenses and collect royalties for the manufacture and distribution of records, CDs, downloads, and other audio recordings.
o Performance Rights – The local foreign representative is given the right to register the songs with the performance right society in the territory and collect the publisher’s share of income earned by performances of the songs on radio, television, live in concert, in restaurants, bars, etc.
§ The writer’s share is paid directly to ASCAP, BMI, or SESAC (depending on writers’ US affiliation), and NOT the foreign subpublisher.
o Audiovisual Rights
§ TV and Film – The US publisher normally grants the foreign subpublisher the right to issue synchronization rights to include songs in television shows and films that originate in the subpublisher’s territory.
§ Home Video – For US films (and TV shows and video games, usually), the film producer will always demand that the US publisher grant home video rights on a worldwide basis via a one-time non-royalty buy-out basis. Under this agreement, no money is paid to the foreign subpublisher. The foreign subpublisher is usually given the right to negotiate home video licenses for audiovisual projects produced in the foreign territory, at least with respect to sales in that particular territory.
§ Recording Artist Videos – There is usually always a record company provision that grants worldwide right to manufacture and distribute short or long home video versions of the artist’s performances.
· For songs written by outside writers, the record company will have to negotiate a separate agreement with the publisher of each song. In most cases a worldwide license granted on a per unit royalty or buy-out basis.
· It’s rare that a subpublisher be allowed to negotiate a separate video license for this product for sales in its territory.
o Commercials – The right to include a song as part of a foreign commercial to be broadcast in a foreign territory is sometimes given to the subpublisher.
§ When granted to the subpublisher, this right is usually conditional upon the subpublisher receiving approval for each particular request from the US publisher.
o Print – The right to manufacture and distribute sheet music is virtually always included in the rights being granted.
· Rights Reserved by the US Publisher - The following rights are commonly reserved by the US publisher;
o Dramatic/literary rights
o Commercials, political campaign uses, and endorsements
o Grand rights (the right to use a song in a musical, live theatrical drama, opera, etc.)
o Ownership of the copyright
o All other rights that are not specifically granted by the terms of the subpublishing agreement
· Royalty Payment Dates and Audit Rights – Royalties are normally accounted for twice a year, with semiannual payments and statements sent to the US music publisher 45-90 days after December 31 and June 30 of each year. Audit rights are similar to those contained in US publishing agreements (30 day notice, audit conducted during normal business hours, limited number of times one can audit)
· Retention Rights – Upon the termination of the agreement, many subpublishers will want to retain the following rights for some period of time after termination.
o Pipeline Monies – Enables the subpublisher to collect money that has been earned during the term of the agreement, but has yet to be collected at the time of the agreement’s expiration.
§ The US publisher generally concedes this, though usually demands a time limit on such rights (6-18 months). This prevents the pipeline collection period from being open ended.
o Retention Rights if Advances are Unrecouped – if advances paid to the US publisher have not been recouped, the foreign subpublisher may have the right to extend the agreement for a specified period of time so that advances can be fully compensated.
§ The US publisher should place a time limit on such retention rights.
§ The US publisher is often allowed to repay advances for full recoupment to the foreign subpublisher.
o Retention Rights on Guaranteed Albums – If advances are paid upon the release of an album, the subpublisher will normally have retention rights to the songs on any such album that is released in the last six months or one year of the agreement.
§ This is fair for the subpublisher because royalties generated by such an album will not be received by the subpublisher until four to nine months after release. The subpublisher needs to be allowed to receive earnings derived from use of the work.
o Retention on Local Cover Records – The subpublisher often retains the right, (duration to be negotiated) to administer a composition if a local cover record has been released during the time of the agreement. The same applies to local film and television uses generated by promotional efforts of the foreign subpublisher. Various provisions can be written up for this retention right;
§ Retention only if the cover record becomes a hit
§ Retention only if the cover record earns in excess of x amount of dollars
§ Retention only if the cover record charts in the Top 10
· Information that must be supplied to the foreign representative – In order for the subpublisher to properly represent you, certain basics must be provided;
o Correct composition titles
o Songwriter(s) identity
§ Authorship percentages if there are co-writers
o Performance rights affiliation of the songwriters and music publishers
o Publisher’s control percentages if there is more than one copyright owner or administrator
§ Multiple authors = multiple publishers
o The US publisher should submit the following information to the subpublisher;
§ Date of the recording’s initial release in the US
§ Release information in other territories
§ Record label identification
§ Title of album, album number
§ Recording artist’s identity
§ Copies of recordings released on major labels that are likely to be released in foreign territories
· Send one copy of each recording released in the US that contains a composition controlled by the subpublishing agreement
§ If the songs have appeared in any US produced television series/motion picture provide copies of the music cue sheets prepared by the producer of the series/motion picture so they can be sent to the subpublisher for registration with the local performing rights society.
· If this is not done, performance royalties due will be delayed, or worse, lost forever
 Jeffrey and Todd Brabec’s “Music, Money, and Success” (6th ed.) served as a guideline for this section. Consult the book for a more in-depth look at each of these issues.
There are three performing rights societies. ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Incorporated) are the biggest, and they are both non-profit organizations. SESAC, Inc. is the oldest and smallest society. It is privately owned and handles about 1% of published music. These groups issue performance licenses and track the use of music in clubs, on radio and television, in elevators, and anytime a song is heard in public.
Every time one of your songs is played in one of these places, you are owed a fee. Since it is impossible for you to negotiate a license and collect fees from every bar and radio station in the country, you affiliate with one of the societies and authorize them to do it for you. The organizations pay writers and publishers separately, so you should affiliate as a writer to receive the writer's share of your performance royalties. If you plan to do your own publishing, you need to affiliate as both a publisher and a writer with the same society.
Businesses that want to play commercially released music benefit in a parallel way from the performing rights societies. A small bar or college radio station cannot negotiate licenses and pay individual artists for every song they play, so they buy a "blanket license" from ASCAP, BMI and SESAC. For a flat fee, businesses buy the right to play the entire catalogue of songs handled by each society, which together accounts for almost all commercially released music.
The societies collect all the blanket license fees, which add up to the hundreds of millions of dollars each year. The revenue left over after collection expenses are paid for is divided among the members. The societies determine how much airplay songs are getting by tracking radio and television play lists. They pay each member a share based on how many songs he has being played, and how often the songs are played. In effect, a top-ten hit that is played constantly all over the country will get more royalties than songs that are played occasionally on oldies' stations.
You can affiliate by contacting the societies directly and requesting a writer's packet, a publisher's packet, or both. The packets contain information about the organization, the application kit, a W-9 tax form and the exclusive membership agreement. There are no application fees.
You choose one society and affiliate with it exclusively, so research the societies before you commit yourself. All three have extensive websites for browsing, or contact the organizations and request information. Also ask your friends in the business which group they use, how they are getting paid, and whether they are satisfied with the service. The membership office contact information is as follows:
New York: One Lincoln Plaza, New York, NY 10023, (212) 621-6000
Los Angeles: 7920 West Sunset Boulevard, Third Floor, Los Angeles, CA 90046, (323) 883-1000
Nashville: 2 Music Square West, Nashville, TN 37203 (615) 742-5000
New York: Charlie Feldman, Vice President of Writer/Publisher Relations, 320 West 57th Street, New York, NY 10019, (212) 586-2000
Los Angeles: Barbara Cane, Vice President of Writer/Publisher Relations, 8730 Sunset Boulevard, 3rd Floor West, Los Angeles, CA 90069, (310) 659-9109
Nashville: Jody Williams, Vice President of Writer/Publisher Relations; or Mark Mason, Director of Writer/Publisher Relations; 10 Music Square East, Nashville, TN 37203, (615) 401-2000
Texas: Please refer to contact information listed for Nashville office
55 Music Square East, Nashville, TN 37203, (800) 826-9996
SoundExchange is the first organization designated by the U.S. Copyright Office to collect digital performance royalties for featured recording artists, sound recording copyright owners (SRCOs) and nonfeatured artists when their sound recordings are performed on cable, Internet (noninteractive streaming) and satellite radio.
SoundExchange is an independent nonprofit performance rights organization that currently represents more than 800 record companies, their 3,000+ labels and thousands of artists united in receiving a fair price for the licensing of their music in a new digital world. Members include both signed and unsigned recording artists and small, medium and large independent record companies, as well as the major label groups and artist-owned labels. For membership information and a step-by-step guide on how to join, go to http://www.soundexchange.com/.
What is Spotify? How do I get my music on Spotify?
Spotify is a music streaming subscription service that offers a range of music from various major and independent record labels. The service, first introduced in October 2008 in Sweden, has been around in the United States since July 2011, and is rapidly growing in popularity. Streaming music subscription services look to have a solid foothold in the current and foreseeable music industry landscape, and as a result are an invaluable tool for spreading your music for all to hear.
Spotify, like other music subscription services, can serve as another source of revenue for your music, but most importantly is another platform by which consumers can access your music. Spotify artists get compensated by paid downloads (similar to iTunes) and for streamed songs on a sliding scale basis determined by the total number of monthly plays an artist receives.
To get your music onto Spotify as…
• an unsigned artisto Upload the music you would like to see on Spotify to an artist-aggregator (sometimes referred to as content-aggregator, digital-aggregator); Record Union, CDBaby, Ditto Music, Zimbalam, AWAL, The state51 Conspiracy, Emubands, Tunecore, LaCúpula, etc.• a label/aggregator representative
o Create a standard agreement with the artist-aggregator. Do some research investigating the details of each company, as each artist-aggregator has different term agreements; fees, commission %, payout frequency, social media integration, etc.)• IMPORTANT: Artist-aggregators should never take any ownership of your content.o Spotify is currently not in the position to enter into direct deals with individual labels, therefore the quickest way for a new label to get its music onto Spotify is to contact a record label or aggregator that already has an agreement and delivery process in place with Spotify
o If you are a label that manages its own digital business and has the capacity to deliver content via a digital feed, the easiest way to get music onto Spotify is to join Merlin Networks.• This will be like having a direct deal in the sense that your content will be sent directly to Spotify and also have direct contact when it comes to promotion.
• If you are a self-published artist or small label that does not have an existing delivery partner then see artist-aggregators listed above• NOTE: Spotify is integrated with FUGA and Consolidated Independent. Deliveries via these platforms will speed up the time it takes to get content on Spotify.
What is Pandora Radio?
Pandora Radio is an intuitive streaming radio service that makes automated music recommendations based on over 400 musical attributes and 2,000 “focus traits” (rhythm syncopation, key tonality, vocal harmonies, etc.). Users provide positive and negative feedback for songs chosen by Pandora, and this feedback is taken into account for future song selections. Pandora Radio has continuously grown in popularity this past decade. The downside for artists is that there is no active way for listeners to seek out your music. On the other hand, your target demographic may pleasantly stumble upon your music thanks to Pandora’s Music Genome Project.
Pandora serves as another tool for exposure, serving as a platform for listeners to hear your music, all the while still being compensated through royalties. Pandora pays statutory performance royalties to SoundExchange (to register click here), as well as publishing royalties to ASCAP, SESAC, and BMI. Artist and record labels can register with SoundExchange to collect their portion of the royalties paid by Pandora (as well as other Internet Radio streamers). As noted in ROYALTIES SECTION (LINK), songwriters collect their publishing royalties from their respective publishing companies (ASCAP, SESAC, BMI).
An important note from Pandora:
We have a deep respect for artists and their work, and so we take the responsibility of curating Pandora's collection very seriously. We see an enormous, and always growing, number of submissions, and the task of selection is made even harder by the limits on our capacity for adding new content. So, while we feel a great affection and respect for everyone who makes the choice to create, the reality is that the majority of the music or comedy we receive does not get selected.
To submit music/comedy to Pandora, you'll need these items:1. a CD of your music/comedy
2. a unique UPC code for that CD (To obtain your own UPC code at a low cost, click:http://www.nationwidebarcode.com/. If you already have a UPC code for this particular CD - for instance, through your record label - use that one)
3. This CD needs to be available through Amazon as a physical CD (not just MP3)--and for the name of each track to be listed in the Track Listing section on the page for that CD
4. the legal rights to your music/comedy
5. a standard free Pandora account, based on a valid email address, that will be associated with this submission
6. MP3 files for exactly two tracks from your CD 7. If your music/comedy is approved for Pandora inclusion, print out the Submission Authorization Form
8. Mail your CD with Submission Authorization Form to Pandora
9. Pandora will analyze your music or comedy and add it to Pandora
Note: It is only possible to submit one CD at a time to Pandora
Once you have all of these items ready to go, you can submit your music or comedy to Pandora for consideration here.
Slacker Radio is an interactive Internet radio service that allows listeners to customize their own radio stations based on genre, specialty, and specific artist. Much like Pandora, listeners can tell Slacker what songs/artists they like and do not like, and Slacker will calculate future programming accordingly. Slacker has 2 million active listeners and is yet another means for artists to gain exposure.
To get music onto Slacker Radio as an…
• artist on an indie label registered with an artist-aggregatoro Slacker has existing licensing agreements with major digital music aggregators; IODA, The Orchard, IRIS, Redeye USA, and INgrooves• artist on an established record label
o If your content is distributed by one of these aggregators, it will be included in the Slacker Radio service. You should be notified by your aggregator about automatic inclusion of your music in Slacker• However, it may be necessary to manually opt-in to the service, dependent upon each respective service.
• Contact the appropriate aggregator for more detailed informationo Slacker has existing licensing agreements with all of the major record labels and many major independent record labels.
o If your music is currently distributed by a major label or an established independent record label, your music is most likely already included in Slacker's service
o You can check to see if your music is included in the Slacker Radio service by searching via the "search" field on the Slacker Radio web player or mobile application
The ISRC (International Standard Recording Code) is the international identification system for sound recordings and music video recordings. The Recording Industry Association of America has been appointed by the International ISRC Agency to oversee the ISRC system within the United States and its territories.
Each ISRC is a unique and permanent identifier for a specific recording which can be permanently encoded into a product as its digital fingerprint. Encoded ISRCs provide the means to automatically identify recordings for royalty payments. ISRCs are widely used in digital commerce by download sites (like iTunes) and royalty collecting societies.
You can apply for an ISRC on their website here. A $75 one-time fee is required to receive your master (or "company") ISRC code.
Many CD duplicators and digital distributors (like Tunecore and ReverbNation) provide unique ISRCs for each song at no additional cost. Ask your record label, CD duplicator and/or digital distributor if they include ISRCs prior to distributing your music. Some mastering engineers will even embed ISRCs into your masters prior to duplication.
In 1927, the National Music Publisher's Association established HFA to act as an information source, clearinghouse and monitoring service for licensing musical copyrights. Since its founding, HFA has become the foremost mechanical licensing, collections, and distribution agency for U.S. music publishers.
HFA issues mechanical licenses for publishers, much like the performing rights societies handle the performance licenses and income. The agency's primary role is issuing mechanical licenses to record companies, online music services, and other licensees, and then collecting and distributing the mechanical royalties. It also performs regular audits on the record labels to make sure the copyright owners are getting paid.
With its current level of publisher representation, HFA licenses the largest percentage of the mechanical and digital uses of music in the United States on CDs, digital services, records, tapes and imported phonorecords.
HFA currently charges 6.75% of the gross royalties it collects as its fee for mechanical royalties. The rest is paid to the publisher, who remits your "writer's share" to you. If you have your own publishing company, you can engage HFA to represent you for your mechanical and synch licenses. Contact the agency at:
Harry Fox Agency/National Music Publishers Association
National Music Publishers Association
101 Constitution Avenue Northwest Suite 705 East, Washington, DC 20001
(202) 742-4375; fax (202) 742-4377
Harry Fox Agency
711 Third Avenue, Eighth Floor, New York, NY 10017
(212) 834-0100; fax (212) 953-2384
Harry Fox Agency en Español has answers to frequently asked questions regarding HFA and music licensing, along with a direct email, firstname.lastname@example.org, which goes directly to the company's Latin Licensing agents.
Contacto e español:
Instead of signing away their copyrights, many artists prefer to create their own publishing entity and either administer the rights themselves or hire someone to do the administration work. This way you keep your copyrights and your publishing monies, but you also have to do much of the work and make the contacts yourself. The toughest part of publishing is tracking and collecting the money, but you can let the industry pros do that for a small percentage of the revenues. You can affiliate your publishing company with ASCAP or BMI for collecting the performance income. For the other major source of publishing income, the mechanical royalties, you can engage the Harry Fox Agency to represent your publishing company.
On the other hand, a good publisher can make you a lot of money by exploiting your songs as thoroughly as possible. Publishers don't make money unless you are making money, so they have a financial stake in your success. They have contacts in the industry, and more clout and experience in negotiating the licensing fees. They can increase your performance income by plugging your songs for radio airplay and getting your songs released in other countries. Publishers can also shop your songs to other artists for "cover recordings," which generate more performance and mechanical royalties. In all, a favorable agreement with a good publisher could be a very lucrative path for exploiting your work. The appendix includes several resources for researching publishing companies.
Possibly. In your publishing agreement, you can ask for a clause called a "reversion" of the rights in your songs if they are not commercially exploited within a specified period of time, such as two years. A "reversion" is a legal term in property law that means you are reserving the right to take your property back if an agreed condition is not met. In this case, if the publisher just sits on your songs for two years and no one is making any money, you can try to get the copyrights back.
If the songs have not been successful, the publisher will probably return the rights to you without argument. Be aware, however, that if the publisher sits on your songs and then you become popular, the publisher may try to keep the songs despite the reversion clause. In this scenario, you'll have to be prepared to sue to get the rights back. The reversion clause in your contract is not an automatic guarantee that you will get your rights back, but it helps prove your case in the event of a dispute.
1. Choose a name for your publishing entity and file a "request for publisher name clearance" with the same performing rights society with which you affiliated as a writer. You have to clear a name first because music publishing is a crowded field and many names are already in use. The societies do not want any confusion when handing out the money, so they insist that you clear the name of your company first.
2. When you get a name clearance from the performing rights society, file a DBA with the County Clerk just as you do for the band's name. The checks for the performance money will come addressed to your publishing company, so you will need a DBA to open a bank account in the company's name and cash the checks. See Do we need to get a business license? for filing information.
3. Get a Tax ID number for the publishing business as well. Follow the instructions for obtaining an Employer Identification Number (EIN) from the section, Do we pay taxes on the band's income? ASCAP and BMI require that you either include this information when you register with them, or that you are in the process of applying for an EIN because they must keep tax files on all of their members.
4. If you registered the copyrights to your songs in your own name with the Library of Congress, transfer the rights to your new publishing company so that the company will be authorized to administer the rights. The Copyright Office does not take care of the transfer. You transfer your copyrights to the publishing entity by writing out your own contract of transfer and signing it, and then you record the transfer with the Copyright Office. Call the Copyright Office at (202) 707-9100 or check the website at www.loc.gov/copyright/ to request Circular 12, "Recordation of Transfers and Other Documents." Check the appendix for resources that provide sample legal forms, like a transfer of copyright. You can use these forms as a model for your own agreement.
When a song is used in a television program or on film, it is not only performed, but is also reproduced in film, video, and/or CD digital copies. Because performance and reproduction of copies are among the exclusive rights that come with copyright ownership, the film or television producers must obtain the proper licensing to use a song in an audio-visual production. The licensing of songs for audio-visual formats involves two separate copyrights: (1) the copyright in the underlying musical composition, which is owned by the publisher; and 2) the copyright in the specific recording of the composition, which is owned by the record company. A synchronization license (synch license) covers the right to use the composition and a master recording license covers the use of the recording.
Movies are made to be reproduced (as opposed to performed one time only), so filmmakers must obtain both a synch license and a master recording license to use copyrighted music. Commercials and television shows that will be reproduced in syndication also require both licenses. Certain television programs, such as live sports events and awards shows, may use a song with only a performance license from ASCAP, BMI or SESAC, because these programs are one-time performances that are generally not intended for reproduction.
There is no compulsory license (as in mechanical licensing) for synchronization and master recording licensing in audio-visual reproduction. Permission to use the song and the fee are at the discretion of the copyright owners, so an artist/publisher earns whatever he can negotiate for the use of his music on-screen. In television licensing deals, the negotiation issues include the type of media covered by the license (cable TV, network TV, home video, etc), the territory of the license (the U.S., North America, the world) and the term (length) of the license. Because of the greater permanence of movies, film producers will want to buy the rights to use the song in all types of media, throughout the world and in perpetuity, so the price of licensing music for films can be very substantial.
1. If you are a Texas resident, request a copy of the Texas Music Office's printout "US Music Supervisors." A music supervisor coordinates most of the music used in a film, including music selection, licensing of rights and recording. Many of the choices made concerning music are predetermined because of the relationship between the motion picture studio and a particular record label. For example, if Sony Pictures releases a film, chances are excellent that the soundtrack will be dominated by Sony Music artists. Don't waste valuable time waiting for a major breakthrough. Work on smaller projects first, network in your local area to build up your credits, and in the long run you'll have an easier time attracting major projects interested in your work. Note: "US Music Supervisors" is not available for mailing outside Texas.
2. Visit the Texas Film Commission's Production Hotline for a listing of current projects filming in Texas. Mail your promo pack with your CD to the films listed. If you are a composer and interested in scoring a film (as opposed to only providing songs for a soundtrack), please call first. Many times a composer has already been selected. Music is often one of the last decisions made by a director, and although he/she may be filming in Texas, these decisions may be deferred until the production company returns to California.
*Many independent films do not have the budget to pay for the use of popular hits, and thus are often interested in working with someone who is trying to build up their film music credits for a smaller fee.
Regional Film Commissions
Antonio Film Commission
3. Getting Songs into Commercials
Companies often look to advertising agencies to produce commercials, and more often than not, these commercials need music. Depending on their specific needs for a particular campaign, the advertising agency will create a brand new song ("This Bud's for You" – Budweiser), acquire a license for a hit song (Bob Seger's "Like a Rock" – Chevy trucks), use the instrumental version of a song ("Singin'' in the Rain" – GE), or use a work in the public domain.
Advertising agencies often have an in-house music department that can create jingles. If not, the advertising agency looks to hire a jingle-production company that specializes in advertising music. An alternative to a jingle-production company is the independent songwriter.
Compensation for the songwriter of a jingle can range from a small amount well into six-figures. The fees payable will be dependent on various factors: type of campaign (national vs. local), the music budget, whether the writer is an independent contractor or part of a jingle production company, if the agency is after a specific song, what kind of track record the songwriter has with past written works. For most jingles, the songwriter’s income is usually limited to the writing fee.
You hereby grant to our client _______ all the right, title, and interest through the world in and to the musical composition entitled _______ written and composed by _______ for use in the following commercial: _______. 1
This language is commonly found in contracts for jingles. The songwriter typically assigns all rights to the advertising agency (or client). These rights are generally as follows:
• The right to register a claim of copyright to the composition in the name of the advertising agency or client • The right to use the composition in all forms of advertising and merchandising • The right to alter, expand, adapt, and edit the composition • The right to use, publish, perform, broadcast, reproduce, and exploit the composition by an means
Depending on your clout as a songwriter, and your contract negotiations, exceptions can be made where songwriters can retain their right to receive royalties from ASCAP and BMI for performance of the commercial on radio and/or television, and retain their right to songwriter royalties if the song is recorded and released to the general public, used in a video game, DVD, film, television series, or as a ringtone.
Most jingle writers work for a commercial production company that handles all aspects of the jingle creating process. The advertising agency contracts with the production company instead of the songwriter. The production company, as opposed to the songwriter, usually retains all rights to the jingle.
When companies hire independent songwriters to write jingles, a “work for hire” situation arises. See the “work for hire” (link) section for more information.DIY Tips
• Hone your crafto You need to put in the time and effort to perfect your craft. Write and produce as much as possible. You are not only getting your repetitions in, but you will also be building your library of created content• Get your music heard. Besides the major social networking sites like Twitter, Facebook, and Youtube, be sure to upload your music to websites like…o Sonicbids – an “online matchmaker” between bands and promoters, they have become the gatekeeper to many music tradeshows and festivals• Surround yourself with like-minded professionals (people who are as serious about your music as you)
o Taxi – Independent Artist & Repertoire company
o Broadjam – music community website that also provides various licensing opportunities
o YouLicense – an online music licensing marketplace
o ReverbNation – music-marketing website where musicians, producers, and venues can collaborate and communicate
o OurStage – music community with free music streaming
o thesixtyone – streaming media website that organizes, promotes, and sells music uploaded by independent artists
o Pump Audio – connects independent musicians with buyers in mainstream media
o FirstCom – producer's source for licensing production music and sound effects for broadcast, film, multimedia and corporate productions
o This is not an exhaustive list. Be sure to see what else is out thereo Reach out to publishers, promoters, and venues on the above listed websites. You never know where your next gig may come from• Produce content that is targetedo Listings on aforementioned websites may specify that they are looking for a “sad,” “happy,” or “angry” song. Create songs accordingly• Create a networko Send courteous emails to music supervisors asking them to check out your music via a link. It can be intimidating “cold-emailing” these people, but the worst they can do is say no. if you obtain these contact emails from the aforementioned websites, they are more likely to hear you out
o Attachments can be off-putting because there is an implied element of trust in the relationship. Why should a music supervisor trust someone he does not know? It’s much less work for a music supervisor to click a link than to download an attachment from your email
4. Research contacts before you send material. Your chances of success are better if the material is suitable for the film subject and is received by the correct person. Send a cover letter emphasizing two things: who you are and how can you help them. Film crews are very busy; be short and to the point. Your packet should include: samples of your work (a CD and an address for your myspace page), a bio, and a list of credits. Make sure materials list your contact information. If you have not received a response, you can make a follow-up call within two weeks to make sure the package was received.
It is a good idea to let them know in advance that you plan to make one follow-up call if you don't hear from them. More than one follow-up call usually moves you from the possible file to the nuisance file. If you are researching a production company and not a particular film, always call before you drop by their office. Make sure they are in pre-production before sending a promo packet, otherwise
it will end up in a file cabinet.
5. Contact the Radio/Television/Film departments in area colleges for information about film students who may need music for their projects. Also consider checking out the Multimedia Department for students that may need video art music. Art Departments may have some performance art majors in need of music for dramatic and/or choreographic works. Most of these programs have bulletin boards posting announcements and services. Call the department office to ask if you can post a flyer that states your desire to work with students. The TMO can provide you with a list of university, college, community and technical music programs.
6. Some local software/game developer companies contract freelancers for background music. Always call the company before sending unsolicited material and talk to the Audio Director.
7. Examine the Hollywood Reporter article that surveyed the executive suites of studio music divisions and the growing role of composers in videogames.
8. The TMO can provide you with a list of advertising agencies, jingles/advertising soundtracks businesses, and radio stations in Texas. As with multimedia companies, call first to establish their status on freelance work. For radio stations, contact the Sales Manager in the Advertising Department for any inquiries.
See ASCAP's How to Acquire Music For Films
(frequently asked questions for independent filmmakers)
1Jeffrey & Todd Brabec, Music, Money, and Success, 6th ed.