Some thoughts on publishing contracts - PLEASE READ

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posted 03-08-2000 02:29 PM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

Some advice of my own - these are supposedly 'standard' terms being discussed in the extracts below. Remember, Listensmart so far has no track record, so you would be perfectly within your rights, and in my opinion advised, to ask for a more beneficial contract than discussed below.
One thing you need to insist upon is some way of limiting the term (I suggest a clause saying 'if the song hasn't earned $X by time Y then all rights revert back'). You do not want to sign anything at this stage which will give potentially very lucrative rights in perpetuity to a company that may go bankrupt tomorrow, or that may do nothing for your career.
The portions of the book here mostly have to do with single-song contracts (the type offered by Listensmart).
These sections do not cover foreign sub-publishing, as I suspect this won't be a factor in the initial contracts, also I have left out the section on sheet music, as this is not really an important factor for 90% of artists...
One final point before I start quoting from Passman's book - it is imperative that if you are registered with a PRO, you check that it is the same one Listensmart are registered with - artists signed with BMI registering with companies signed with ASCAP can have all sorts of problems. Ideally Listensmart will register under different names with ASCAP, BMI and SESAC, thus removing this potential obstacle....

Traditionally, a publisher splits all income 50-50 with the writer (with the exception of sheet music and performance royalties, which we'll discuss later). The publisher's 50% is for his overheads (office, staff, etc) and profit. The share of money kept by the publisher from each dollar earned is called the publisher's share (clever, huh?) and the balance is just as imaginatively called the writer's share

If you're a writer/artist whose material doesn't lend itself to being recorded by others (such as rap, jazz or heavy metal) then you should only part with your publishing if you need (or want) money up front.

For some reason all songwriter contracts seem to be labelled 'Standard Songwriter Agreement'. However, I've never seen any two Standard Songwriter Agreements that looked like they were even distant cousins, much less twins. So don't take any comfort in the words at the top of the page. Here's really what to look for:

'CATCH ALL'
Some contracts say the songwriter gets 50% of the publisher's receipts from 'mechanical, synchronisation and transcription' income or words to simillar effect. The problem is that it is sometimes a limited list of monies from which the songwriter is paid. This means the publisher could be collecting monies that it doesn't share with the writer, and this is definitely something to avoid (if you're a songwriter).And the problem isn't cured by adding everything you can think of to the list. For example, even the most complete list of income sources anyone could put together in the 1950s would have omitted income from video cassettes, since they didn't exist. What you really need, at the end of the list of items, is a catch all. This is a phrase that says the writer gets 50% of 'all other monies not referred to in this agreement'. Often, you'll find the contract states just the opposite - that the writer is only entitled to a share of monies set forth in the contract. So cross this out and add your 'catch all'.

SHARE OF ADVANCES
Most contracts also say you don't share in any advances the publisher may get. In most instances, this is legitimate... The exception to this is an advance paid specifically for your composition. Since this advance or guarantee is recoupable only from your song's earnings you should get your share of it when the advance/guarantee is paid to the publisher. So add language saying you do share in advances and guarantees which are specifically for your composition.

Because the writer is paid directly, all songwriter contracts say the writer doesn't share in any performance monies received by the publisher. And since the performing rights societies are collecting DART monies, these are covered under the same provision.

CHARGES AGAINST ROYALTIES
Often a publisher pays the costs to create a demo of your song. A demo is an informal recording made solely for the purposes of pitching a song to artists. It is usually made by an unknown singer (or the songwriter) accompanied by one or two instruments (which, since the advent of synthesisers, can sound like the London Symphony Orchestra). The publishers try to charge 50% to 100% of the demo charges against the writer, and as your bargaining power increases, this amount decreases, ending up at 0.
No songwriting agreement should charge you for anything other than the following:
1) demos
2) collection costs (monies spent by the publisher to collect your song's earnings, such as Harry Fox fees and the cost of chasing deadbeats who don't pay) and
3) sub-publishing fees.
All other costs should be borne by the publisher.

ACCOUNTINGS
Publishers typically account and pay within 60 to 90 days after the close of each calendar semi-annual period (30 June and 31 December). Some superstar songwriters get quarterly accountings, but this is rare.
Contracts typically limit the period in which you can object to your accounting statements, and most first drafts say you have to object within one year or you lose the right to do so. You can usually get this extended to two years, and often to three. Beyond this is rare.

ADVANCES
The advance for a single-song agreement is usually not very significant. It ranges anywhere from nothing to $250 or $500, if we're talking about unknown songwriters and no unusual circumstances. Major songwriters rarely sign single-song agreements.

CONTRACTUAL APPROVALS
To the extent that you want any protection, you must put it in the contract. You do this by saying the publisher needs your approval before it can do things like:
1) Make changes in the music
The publisher will normally say that's fine as long as they don't have to ask about simple changes
merely to conform to the mood or style of a particular artist.
2) Make changes in the English lyrics
Again, this approval right usually excludes minor changes for mood or style.
3) Add foreign lyrics
If you have enough clout, you may be able to approve translations. This is much harder to come by, but it's worth fighting for because it's also a financial issue - remember, translations reduce your royalties.
4) Make changes in the title
Usually no sweat - just ask for this and you'll get it.
5) Grant synch licences
If you have some bargaining power, you may be able to get consent to all motion picture
synchronisation licences. If you have a lot of bargaining power, you might also control television
synch licensing, but this is much harder to get.
6) Use the song in commercials
At best, you should have the right to approve any usage of your song in commercials. If you haven't enough clout top control commercials entirely, you can compromise by requiring your consent to certain categories, such as alcohol, tobacco, firearms, political candidates and, my personal favourite, sexual hygiene products.

REVERSION OF COPYRIGHT
Smile whenever you hear the words 'reversion of copyright', because this will always be good for you.
CONDITIONS OF REVERSION
What should trigger reassignment? The best (short of the automatic reversions discussed below) is that the song reverts to you if it's not recorded and commercially released. If you really have bargaining power, you can say you get the song back unless the recording is by a major artist (or at least on a major label) and/or achieves a certain chart position (say Top 50).
In these clauses be sure to require that the recording/release must happen within some time frame. Otherwise the publisher can keep the song for the life of the copyright, telling you every week that a recording is just round the corner. If it's a single-song agreement the publisher customarily has from 6 months to 2 years after signing within which to get the song recorded and released. Try to break this into two parts - it must be recorded within 6 months (or 12) after signing the deal and released within 6 (12) months after that. This is better for you, because it comes back sooner if nothing happens.
Even at the most modest levels you should be able to get a publisher to give your song back at some point if it hasn't been exploited.
Reversion of copyright for non-exploitation is something you should always ask for. You may not always get it, but you should always ask for it. Is it clear I mean always? Did I say always?

Posts: 429
From: Vanier, Ontario, Canada
Registered: Mar 2000

posted 03-08-2000 02:55 PM     Click Here to See the Profile for Anne        Edit/Delete Message

Anne

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From: Columbia, MD
Registered: Dec 1999

posted 03-08-2000 03:23 PM     Click Here to See the Profile for Sean Fenlon        Edit/Delete Message

I know that there are many artists who are very curious about the music publishing relationship that ListenSmart.com will offer. First, allow me to explain exactly why we have not actively begun discussing the whole revenue sharing/music publishing issue in greater detail. We REALLY want to make the web site work perfectly before we launch our whole "revenue sharing" model. To do so we need to – for now -- focus like a laser on the technical aspects of the site while gathering as much artist feedback as we can. Thus, the moment we roll out the music publishing/”revenue sharing” elements, we then want to be able to focus entirely on it without the distraction of fixing site bugs, procedures, etc.

Since I am a musician, I have thought the entire business plan through as an artist. Thus, I realize that if ListenSmart.com is not ultimately a good thing for the artists it has relationships with, then the entire business model implodes. I promise I will not let that happen. What is important to remember is that relationships with independent artists is what the entire company will be built upon, not website traffic.

What I can tell you now is that I will see to it personally that every question or concern artists may have about the publishing relationship will be answered quickly and accurately when the time comes. Also, we will post the publishing contract on the BB for as long as it takes to allow everyone to understand and comment on its meaning. This will also give us the chance to make any adjustments if necessary.

The artist in me tells me that it's really going to be great (even if it is not for everyone).

When you finally get to see some of the names that will be connected to the publishing division, I’m certain that you will feel the same way too.

Best regards,

Sean

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From: Bowling Green, KY, USA
Registered: Mar 2000

posted 03-08-2000 03:28 PM     Click Here to See the Profile for KennyLee        Edit/Delete Message

I must point out though, that the one difference between the "standard" deal you address and what we are looking at here is the 50/50 split of this sites advertising revenue.

While I would like to have my songs picked up by a major label artist, or placed in a movie or TV show, I don't know how possible that is.

But I do know that a successful music website can bring in a significant amount of ad revenue. And being able to get my share of 50% of that has real possibilities.

If mp3.com had offered that option since day one, I would have made some serious cash from them by now. Instead of the few $50 dollars or so checks that I and most people have received.

So you see, the main thing I like about this "new millenium" publishing deal is the ad revenue sharing, every thing else is gravy to me. Why? Because I have some control over how many downloads I can get by promoting as I have in the past. I have no control over the other stuff.

When they get that up and running, I'm going to be pushing downloads from this site as hard as I can. Because for the first time, I can see the potential for some real big online revenue from my efforts.

Like most artists on the internet, all I have been asking for is a fair chance. Which it looks like we may finally have here.

KENNY LEE and the BBQ BLUES BAND
www.listensmart.com/Kenny_Lee
www.mp3.com/KennyLee

Posts: 100
From: Leiden, The Netherlands
Registered: Mar 2000

posted 03-08-2000 03:30 PM     Click Here to See the Profile for Galbatron        Edit/Delete Message

On the other hand, the management of ListenSmart has some terrific people in it. I'm sure we'll be able to work something out.

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GALBATRON - Epic Symphonic Electronica
MP3 Site: http://www.listensmart.com/galbatron
The Official Galbatron Website: http://www.galbatron.com

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Posts: 510
From: Los Angeles, CA
Registered: Mar 2000

posted 03-08-2000 07:13 PM     Click Here to See the Profile for notesleb        Edit/Delete Message

I think it's the right time to at least bring it up too, contract issues are what's important to us, technical website bugs can always be fixed later. Sean, you really seem to have a good attitude about this, I wouldn't expect you to respond to every little complaint people put forward but it'll be great if you (or your staff) continue to respond this fast to important ones.

quote:

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Also, publishing rights are by far the most important right for many artists, and shouldn't be signed away without a lot of thought. If the contract is good, I'll be signing, if not, I'll be posting why , hopefully this will help people decide...

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I couldn't have said it better.

Peace,
Stephen

If this site continues down the good road it seems to be heading I will give it all my support.

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From: Union City, CA. USA
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posted 03-08-2000 08:13 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

The crucial issues of this site must be debated vehemently. Someone posted that they don't mean to be controversial. Let us not be shy. Speak your minds & let the chips fall where they may! This is "your" career if you are serious. If you are not serious, maybe you should think about another site and not waste space on this one.

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posted 03-08-2000 08:19 PM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

Everything else (particularly 'You download me I'll download you' threads) should be left until after these topics have been discussed in detail (if they have to happen at all).
Another question is what measures are being taken to ensure that a situation simillar to that at AMP3 doesn't happen here too...

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From: Union City, CA. USA
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posted 03-08-2000 08:51 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

Let's put some cards on the table. Yeah, the odds are usually in favor of the house but in this case it has been "promised" that the suckers will get an even break. OK! Lay 'em down!

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posted 03-08-2000 08:59 PM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

Unfortunately most artists on the net seem to have Little Richard's attitude rather than Chuck Berry's...
This is not meant as a dig at any artists, nor as an attack on the integrity of the people running this site, but too often people have signed utterly ludicrous contracts - remember when MP3C brought in the NMA and the original contract had a clause assigning to them ownership of all your intellectual property in perpetuity? Plenty of people signed that without noticing that nasty little clause...

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From: Union City, CA. USA
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posted 03-08-2000 11:55 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

Truth: Most of the Artists that get screwed allow it to happen because they are too mentally lazy to educate themselves. Then they whine and plead their pathetic case. The more I work with Artists on the business side of things, the less respect I have for most of them. Ignorance is understandable but the refusal to learn is not not excusable.

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From: Union City, CA. USA
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posted 03-09-2000 07:08 AM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

I was the Mgr. of an Artist that had his own attorney negotiate my contract with him. This Artist failed to mention that this Attorney was not an Entertainment Lawyer. There is a clause in the contract that states that the Artist fully understands the contract. The Artist signed it. A few months later I discovered, the hard way, that the Artist did not understand the contract at all, to the point that the Artist claimed that I was responsible for finding him employment.

In the contract on the first page it is plain non- legaleez, in no uncertain terms that the Mgr. does not have that reponsibility. There were many other clauses that this Artist did not comprehend which caused a lot of grief, strife and major problems for me.

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From: Corona Del Mar, CA USA
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posted 03-09-2000 12:59 PM     Click Here to See the Profile for RhythmStar        Edit/Delete Message

YMMV,

RS

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posted 03-09-2000 04:16 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

Get a fuckin' clue. Yeah, damn right, it pisses me off when musicians that don't know shit, don't wanna know shit, then come on talkin shit, like they know what is what. Keep talkin' your shit. The more you post, the more you prove my point!

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posted 03-12-2000 08:31 PM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

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posted 03-12-2000 09:29 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

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[This message has been edited by PFmgmt (edited 03-12-2000).]

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From: Ft. Collins Colorado
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posted 03-12-2000 11:32 PM     Click Here to See the Profile for songritr        Edit/Delete Message

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http://www.listensmart.com/songritr

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posted 03-12-2000 11:46 PM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

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From: Ft. Collins Colorado
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posted 03-13-2000 12:29 AM     Click Here to See the Profile for songritr        Edit/Delete Message

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http://www.listensmart.com/songritr

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From: Ft. Collins Colorado
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posted 03-13-2000 12:42 AM     Click Here to See the Profile for songritr        Edit/Delete Message

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http://www.listensmart.com/songritr

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From: Ft. Collins Colorado
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posted 03-13-2000 12:50 AM     Click Here to See the Profile for songritr        Edit/Delete Message

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http://www.listensmart.com/songritr

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From: Union City, CA. USA
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posted 03-13-2000 02:37 AM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

Yes, I am a hard-ass. You will prolly be real surprized that a lot of people really love me and respect me. Of course, a lot hate my guts too. I like it that way.I am a gonzo Mgr. It is my personality. I am actually a cream puff inside. Haha NOT!

People that judge me too quickly, based on scant info. make a huge mistake.I am multi- dimensional, multi-talented and complex.
I haven't figured myself out yet.HaHa

Instead of trying to fight me, you would be wise to learn from me. Read my articles and my posts and look beyond my personal flaws.

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Posts: 397
From: taos, n.m. u.s.a.
Registered: Mar 2000

posted 03-13-2000 02:44 AM     Click Here to See the Profile for parzival        Edit/Delete Message

pf..I went to your site last night..I like both of the bands you represent..If thats the proper term.
I've been on 9 cds..four of these with Warner america artists and three with artists on smaller labels and two of my own.
I read your description of a managers role in the music buisness with some interest..
though I can't for the life of me figure out why your so foul to people..
do you get a lot of buisness that way?
I'm serious, are people attracted to the tough, mean manager guy thing?..if so carry on and all good luck to you!!
if not..well.....try being polite.

anyway..back on topic!! Publishing contract..I think this site is on to somthing here. I like the idea that the site benifits from advocating for the artist..this is a good incentive and givin the right material they might make some good money! which would mean, in theory, that an artist could make some money here as well.
I'm very interested to watch this unfold!!
wishing listensmart good luck in an often cruel environment.
look for a couple STICKYPISTOL songs as soon as figure out how the hell this site works!!
peace
parzival..aka..preacherman
www.stickypistil.com

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[This message has been edited by parzival (edited 03-13-2000).]

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From: Ft. Collins Colorado
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posted 03-13-2000 02:48 AM     Click Here to See the Profile for songritr        Edit/Delete Message

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http://www.listensmart.com/songritr

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From: Union City, CA. USA
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posted 03-13-2000 06:31 AM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

Bobby, You have right to your opinion.

The Publishing contract is extremely important. We will be scrutenizing it closely. It is stunning that most Artists here are oblivious to the Contract of this Site and the Publishing contract. Someone stated that this site has the largest collection of morons of any site that he has ever been on. Maybe that is a correct assessment.

[This message has been edited by PFmgmt (edited 03-13-2000).]

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posted 05-19-2000 05:02 AM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

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Posts: 1132
From: Union City, CA. USA
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posted 05-19-2000 07:04 AM     Click Here to See the Profile for PFmgmt        Edit/Delete Message

I have a feeling that this Publ. Contract might be something that we can deal with and that it may be OK. here on LS.

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www.listensmart.com/PhilFrazier
www.cbh3.com/phil

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posted 05-19-2000 08:28 AM     Click Here to See the Profile for Andrew Hickey     Edit/Delete Message

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Posts: 690
From: coppell,texas u.s.a.
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posted 05-19-2000 09:47 AM     Click Here to See the Profile for sins tailor        Edit/Delete Message

quote:

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What is important to remember is that relationships with independent artists is what the entire company will be built upon, not website traffic.

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All times are ET (US)