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PUBLISHING AGREEMENTS
What is a Publishing Agreement?
Does a Publishing Agreement mean that a publisher owns my songs?
What exactly does a Publisher do with my music?
Are there different types of Publishing Agreements?
What is an Administration Agreement?
What is a single song deal?
If I play in a band but don’t write songs do I need a Publishing Agreement?
Can a publisher do anything they want with my music?
Are there any guarantees as to what the Publisher will do?
Will a publisher pay advances?
How does a Publisher get paid?
Is a publisher entitled to a share of my APRA money?
How much will a Publisher get paid?
How much will I get paid?
When will I get paid?
What is the difference between the Term and the Retention Period in a
Publishing Agreement?
• How long does a Publishing Agreement last for?
• Will a Publishing Agreement Apply in respect of the whole world?
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This Fact Sheet has been made possible by the funding
received by the Creative People’s Centre from the New
Zealand Law Foundation.
This Fact Sheet is not legal advice. This information is intended to
provide a general outline of the relevant legal issues and further
professional advice should be sought before any action is taken in
relation to the information contained in this Fact Sheet.
This checklist remains at all times the property of the Creative People’s
Centre. You may make use of this Fact Sheet only for your own
personal information. Under no circumstances may this Fact Sheet or
the information in it be copied or distributed to any third party by you
without the prior written agreement of the Creative People’s Centre.
What is a Publishing Agreement?
A Publishing Agreement is a legally binding agreement entered into between
an artist (or individual artists who may be performing together in a band) and
a music publisher. Under a Publishing Agreement an artist grants to a
Publisher certain rights in respect of the songs the artist writes to enable the
publisher to grant permission to others to make use of those songs. In
addition to this a publisher will also be responsible for collecting any royalties
due to the artist from the use of their songs. In return for performing these
services a publisher will take a set percentage of the income it generates and
collects for the artist.
Just as a Recording Agreement (for more information on Recording
Agreements please refer to our Fact Sheet ‘Recording and Licensing
Agreements’) is primarily about the rights an artist grants to a record label in
their recorded performances so a Publishing Agreement is about the rights an
artist grants to a publisher in the songs the artist writes.
Does a Publishing Agreement mean that a publisher owns my
songs?
No. However, a Publishing Agreement will provide for the assignment of
rights in respect of the songs to the publisher for the duration of the Publishing
Agreement. This is to make it easier for the publisher to do their job and
enforce their rights in the songs against third parties. However there should
be a clear provision that automatically ensures any rights assigned to the
publisher are reassigned to the artist following the end of the Publishing
Agreement.
What exactly does a Publisher do with my music?
Under a traditional Publishing Agreement a publisher will have the ability to
grant other people the right to use the artist’s songs in any number of ways.
Essentially one of the main components of the publisher’s jobs is to find ways
to make money out of the use of the artist’s songs.
Historically the main sources of income for publishers were sheet music and
having other artists perform cover versions of their artists’ songs. These days
the opportunities available for the use of music are many and varied and while
sheet music and cover versions are still sources of income, having songs
placed in film and TV are some of the most lucrative uses today in addition to
an ever increasing range of new opportunities such as placement in video
games. Having songs used in TV commercials is another way that publishing
income can be generated from an artist’s songs.
A publisher may also look for new co-writing opportunities for their artists by
pairing them up with other artists who they also publish. As each artist and
each band is different the way that a publisher will go about generating
income from the songs of an artist will vary.
Are there different types of Publishing Agreements?
In addition to the traditional Publishing Agreement which provides for the full
range of services outlined above, there are also different variations on this
type of deal that publishers sometimes offer that provide for different degrees
of commitment and services. However, just as no two Publishing Agreements
are exactly the same, so too it’s true that the other types of deals a publisher
may offer may also vary from publisher to publisher and deal to deal.
What is an Administration Agreement?
One relatively common variation on the traditional Publishing Agreement is
called an Administration Agreement or an Administration Deal. This type of
arrangement in theory provides for a lesser range of services to be provided
by a publisher and is normally only offered to an artist that already has a body
of work available for the publisher to make use of.
Under an Administration Agreement one of the key services the publisher
provides is the collection of all income due to the artist from the use of the
Artist’s songs. Although the benefits of this may not seem significant, if an
artist’s music is being used by a number of third parties in a number of
different ways, then keeping track of all payments due to the artist and
following up as required for any overdue or incorrect payments might in fact
be quite a significant and time consuming job. And after all an artist’s time is
probably much better spent focusing on their music and advancing their
career generally, rather than being a debt collector.
Under an Administration Agreement, in its purest form, the publisher would
not actively attempt to promote and market the artist’s songs for use by third
parties at all, or at least not to the same degree as is the case under a
Publishing Agreement. However in practice each situation can vary. Under a
traditional Administration Agreement it is also likely that there will not be a
focus on the Publisher working to build the career of the artist. But once
again each situation is to some degree different.
What is a single song deal?
In some cases rather than signing an artist personally or obtaining rights in an
artist’s catalogue, a publisher may just be interested in obtaining rights in a
particular song or group of songs an artist has written so as they can try and
find opportunities to generate income through other people making use of the
particular song or songs. In these cases a publisher will of course also be
responsible for collecting income generated by the use of these songs just as
they do under a fully fledged Publishing Agreement. These types of deals are
not common in New Zealand as quite often if a publisher believes enough in
the commercial potential of the one song or group or songs an artist has
written they will be interested in looking at tying the artist into working with
them to some degree going forward such as through a more traditional
Publishing Agreement.
If I play in a band but don’t write songs do I need a Publishing
Agreement?
No. As a Publishing Agreement only relates to the songs themselves
regardless of who performs them, if you don’t write songs (and also aren’t
gifted any songwriting percentages due to some kind of internal band
arrangement with regard to songwriting credits) then you won’t need a
Publishing agreement.
Can a publisher do anything they want with my music?
The terms of the Publishing Agreement will specify exactly what a publisher is
entitled to do with an artist’s songs. Given the different ways that songs can
be commercially used these days, it is important that any ways in which an
artist’s songs may be used that an artist doesn’t feel comfortable about are
clearly dealt with. For instance, it is not uncommon for an artist to be able to
deny the use of their songs for advertising purposes. It is also not uncommon
for the artist to have to approve any use of their songs in a video game or the
use of any of the music or lyrics comprising their songs in combination with
other music or lyrics of a third party. The amount of control an artist will have
in terms of how their songs are used will to some degree come down to the
commercial bargaining power between the artist and the publisher when the
Publishing Agreement is negotiated.
Are there any guarantees as to what the Publisher will do?
Although a Publishing Agreement won’t provide an artist with any specific
guarantees as to how much income the publisher will generate for the artist
through their activities, there are still certain safe guards that an artist should
ensure are included in a Publishing Agreement. There should for instance be
a very clear obligation on the publisher to actively represent an artist’s songs
to the best of the Publisher’s ability. In some situations an artist may also be
able to have a publisher agree that certain songs will return to the control of
the artist if the publisher has failed to generate any specific income from them
within a certain period of time.
Will a publisher pay advances?
Under a traditional Publishing Agreement it is quite usual for a publisher to
pay an artist an advance on signing the Publishing Agreement. The advance
will be recoupable against all other income that is due to the artist under the
Publishing Agreement. This can at least guarantee the artist a certain amount
of income from the Publishing Agreement. However what an advance means
in practice is that the artist will not receive any further payments from the
publisher until the income due to them generated from the use of their songs
exceeds the amount the publisher has previously advanced. This is the same
basis on which advances operate under a Recording or Licensing Agreement.
For more information on Recording and Licensing Agreements please refer to
our Fact Sheet ‘Recording and Licensing Agreements’.
Quite often Publishing Agreements will also provide for the payment of further
advances on the artist delivering a certain number of songs to the publisher or
having an album released which contains a certain number of their songs. In
these cases the provisions that an artist must satisfy to qualify for the further
advances must be carefully considered so as the artist can be sure they will in
fact be entitled to these advances. For instance if a Publishing Agreement
requires the release of an album containing the artist’s songs through a major
record label in order to qualify for a further advance, then this is of little use to
the artist if the artist intends on releasing the record through their own
independent record label.
How does a Publisher get paid?
A publisher gets paid by taking a commission on any income that they
generate or collect on behalf of the artist.
Is a publisher entitled to a share of my APRA money?
Under a traditional Publishing Agreement a publisher will be entitled to a
certain percentage of an artist’s APRA income. A publisher will also be
entitled to a share of the mechanical royalties that an artist receives whenever
their songs are reproduced such as in ringtones or on an album. For more
information on APRA and mechanical royalties please refer to our Fact Sheet
‘Copyright for Musicians’.
How much will a Publisher get paid?
The exact percentage payable to the publisher will vary from Publishing
Agreement to Publishing Agreement and will also depend on the type of
Publishing Agreement that the artist has entered into.
For instance
Administration Agreements due to their nature normally provide for a better
return to the Artist. The commission a publisher takes will also vary across
the different mediums of exploitation. For instance, a different commission
rate will apply to where an artist’s songs are reproduced in sheet music as
opposed to where an artist’s songs are included in a movie. The percentage
can also in some instances differ further depending on whether it is the
publisher or the artist who has sourced the opportunity in question.
How much will I get paid?
Although the exact commission taken by a Publisher can vary greatly
depending on the above factors, these days the artist should receive the
majority of any income earnt from the use of their work. In fact, in generally all
cases, the percentage of the income that an artist will receive sits somewhere
between 60%-80% depending on the use and the deal in question.
When will I get paid?
Under Publishing Agreements the payment of income due to the artist is
traditionally made either every three months or every six months. It is also
common to have a provision in Publishing Agreements which allow an artist to
audit the accounts of a publisher to ensure that all income due to the artist is
being properly accounted for and paid through.
What is the difference between the Term and the Retention
Period in a Publishing Agreement?
Publishing Agreements are unusual contracts in that the obligations that bind
an artist are based around two separate periods of time. The first of the two
separate time periods is the ‘term’. This period of time normally begins from
when the artist signs up to the Publishing Agreement. During this period of
time the Publisher has the right to administer all songs that the artist writes, as
well as all songs that the artist has ever written that are not currently the
subject of an agreement with another publisher.
The second of the two separate time periods is the ‘retention period’. The
retention period will only begin to run when the term of the publishing
agreement has come to an end as provided for in the Publishing Agreement.
During the retention period the artist will be entitled to do what they want with
any new songs they write, (including even signing a separate Publishing
Agreement with a new publisher in respect of these,) but the publisher will
retain the right to administer for the full length of the retention period the
songs that the publisher had rights in during the term of the Agreement.
How long does a Publishing Agreement last for?
The length of a Publishing Agreement varies depending on the nature of the
deal. For instance an Administration Agreement will typically be for a much
shorter period than a traditional Publishing Agreement. The average term of a
traditional Publishing Agreement in New Zealand is probably somewhere
around ten years with an Administration Agreement having an average term
that is perhaps around five years. However it must also be remembered that
in respect of a traditional Publishing Agreement, the Retention Period, which
only begins following the end of the term of the Publishing Agreement, is likely
to be around the same length again as the term of the Publishing Agreement
in fact was. So in effect this means that a publisher can have rights in certain
songs that an artist has written for a very long time.
Will a Publishing Agreement Apply in respect of the whole
world?
It is not uncommon for Publishing Agreements to provide the publisher with
the right to administer an artist’s songs throughout the world. However in
some cases it may be possible to limit the publisher’s rights to just certain
territories, perhaps for instance New Zealand and Australia only. Careful
consideration should be given to how extensive the territory is that a publisher
is granted rights to control an artist’s songs in, with respect to whether the
publisher actually has the practical ability to do this in an effective way. In the
event that a publisher does not have an active presence in any particular
territory but intends on sub-licensing the artist’s songs to a third party
publisher based in that territory, (and the artist is happy with that
arrangement,) then it must also be ensured that the Publishing Agreement
provides some protection in terms of how great the commission is that such
sub-publishers will themselves keep.