A decade back, my band got a small deal and we hired entertainment lawyer (and King Missile vocalist) John Hall from Heraty Law to explain the contracts to us. The first was the record contract, the second was a publishing contract. Those conversations and emails with John were my introduction to music publishing, and while we never sold enough for any of it to matter, I’ve always appreciated having some understanding of that side of the business.
Disclaimer 1: I am not a lawyer, and this isn’t even fact-checked by one, so take it all with a grain of salt. And if your band is ever offered a traditional record contract, hire a lawyer. They exist for a reason.
Disclaimer 2: This stuff will never apply to 99% of us, so don’t sweat it too much. Just learn enough to be aware what’s happening if your band gets traction.
Lastly, if this piece comes across as sour grapes, it isn’t. Our label was really good and fair to us!
First, some terms
- Songwriters create songs, which are musical compositions consisting of melody, chords, and typically lyrics
- Songs are protected by © copyright from the moment the song is created (no action needed), and copyrights are owned by the songwriter(s) by default
- Publishers control how a song can be used, and collect certain money for the songwriter(s)
- Recording artists create sound recordings of songs; this is what gets pressed and sold
- Sound recordings are protected by a ℗ phonographic copyright, which is owned by whoever paid for the master recording (typically a record label but more and more, the band themselves)
- Both © & ℗ copyrights are assets that can bought and sold
What that means
- There is a legal distinction between the songwriter and the recording artist, even if they are the same person.
- Songs and sound recordings are two different things, are protected by two different copyrights (© & ℗), and earn their own revenues.
- Publishing is only concerned with songs and their © copyright; artist royalties are a whole other thing.
- Everything gets more complicated when multiple people (a.k.a., a band) write a song together.
- Everything gets really complicated when money and ego are involved.
© Copyrights for songs
When a song is written — not recorded, or even written down — it is automatically protected by a musical © copyright, and the songwriters own it. If there are multiple songwriters, ownership is split by whatever percentages they agree upon (this is very important and there’s more about it at the end).
When a musical © copyright is created, a legal entity called a publisher is automatically assigned to administer the copyright. By default, that publisher is the songwriter(s).
A song’s © copyright is owned by two parties: The Songwriter and The Publisher, who are by default the same person. It is theirs to give away.
Why that matters to bands
We had these managers very early on…before we had a record deal. They said, ‘Who writes the songs?’ And I said, ‘Well, I do.’ And they said, ‘Well, that’s gonna be a problem…’
Billy Corgan, from Billy Corgan on the Realities of Being a Rockstar – Joe Rogan (YouTube)
Artist-friendly labels and publishers (or one negotiating with a larger artist) might offer a co-publishing deal which only takes a percentage of the publisher’s share and passes the rest on to the songwriters. A rare few labels take no stake in publishing at all.
But some deals require the artist to also sign a separate contract with the label’s publishing house. The publishing contract will offer a songwriting advance (separate from the recording advance offered in the record contract) in exchange for the publisher’s share of the copyright for any songs recorded during the contract’s term.
Why that matters to labels
When certain royalties are paid out, they are split into a Writer’s Share (50%) and a Publisher’s Share (50%).
When a fan buys a song, the label pays an artist royalty to the artist and a “mechanical royalty” to the song’s publisher, who then pays the songwriters their 50% writers’ share and keeps the 50% publisher’s share. In the deal described earlier, whoever owns the label and the publishing house just kept a little extra slice of the pie for themselves. It’s not evil, and honestly for most bands, it amounts to tens of dollars, if that. But if a band starts selling records, getting played on the radio, has a tab book published, gets a song in a movie… it might matter quite a bit.
The good news it that this is all negotiable, and a band with leverage doesn’t have to sign something like that. They might, if they have a good relationship with the label/publisher, but that’s what this is all about:
- Published by Walpurgis Night Music
- Published by In One Ear And Out Your Mother
- Published by You Make Me Sick I Make Music
- Published by Noyes
Those are the publishing companies used by the Soundgarden guys around the time of Badmotorfinger. The big players will set up their own publishing companies to capture the publisher’s share of those mechanical royalty payments.
How this stuff can mess up a band
That’s all interesting. This is where it gets ugly. Take a few minutes and watch this incredible YouTube clip where Billy Corgan explains to Joe Rogan what happened to the Smashing Pumpkins:
Corgan describes with amazing candor how he decided early on to keep all the songwriting royalties. He was advised against it, he was told it would be a problem, and he did it anyway. And it wrecked the band, which he acknowledges and explains in detail. It all goes back to publishing.
Remember that “mechanical royalty” that gets paid out when a song sells? It’s compensation to the songwriters, and it’s currently worth 9.1¢ per song sold (it varies with song length). Sale of a CD with 10 songs would earn about $1 for the artist and 91¢ for the songwriters, minus whatever they negotiated away to the publisher (for easy math, let’s say the songwriters get 50¢). Applied to the scenario Billy describes, every Pumpkins CD sale would earn the bandmembers 25¢ each, and Billy would get an extra 50¢. And if he negotiated a better publishing deal than I laid out, he would get more than that. Multiply that by tens of millions of CDs sold…yikes.
And it gets worse with radio play. In the US, only songwriters & publishers get paid when a song is played on the radio. All those Smashing Pumpkins radio plays likely brought in money for Corgan, little or none for the rest of the band.
How to make it all not matter (this is the opinion part)
If a band takes Corgan’s managers’ advice and agrees to split songwriting royalties equally — no matter who wrote what — it avoids a lot of problems. For most bands who never sell enough for publishing to matter, it’s a non-issue. For the few that do, all the members rise equally. And in most bands, an even split is actually pretty fair, because there’s no royalty for the drummer who books all the shows, or the bassist who does all the social media, or the guitarist with the van, or the singer who takes care of merch, or any of the hundred other thankless jobs in a band.
And honestly, who wants to argue over who wrote what in anticipation of some royalty that they’ll probably never see? How would you even remember? All for one, one for all, write some jams.
That said, once you’ve agreed to split it equally, do remember that your copyrights and publishing are yours until you decided to give them away. If someone asks you to give them up, know what you’re getting in return. Ya never know!
I’m not a lawyer, I just find this stuff interesting. If you do as well, or you have questions about music business, let me know, and we’ll rustle up a lawyer to answer them: jason@workhorsemag.com