Tips of the Trade: Publishing Deals – the Dos and Don’ts

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This article on music publishing was first published in APRA's magazine APRAP in December 5, 2013 - 2013, Vol 11, 2013

This month we spoke to Jeremy Fabinyi, the General Manager of the Australasian Music Publishers’ Association (AMPAL) about what you should consider in terms of publishing deals and what you need to know about publishers. Jeremy has been with AMPAL since returning to Australia in 2012 after ten years overseas – he had three years with the international authors’ trade associations, BIEM and CISAC in Paris, before becoming Managing Director of the UK’s mechanical right society, MCPS. He went on to hold a number of roles within the MCPS/PRS organisation including a stint as acting CEO of PRS for Music.

What should I expect from a publishing deal? What will publishing companies do for my music and my career? 

Publishers assist writers by providing financial assistance, professional and creative advice, commercial exploitation and making sure that the money flows.

What should an songwriter consider before approaching a publisher? What are the basics that every songwriter should have before they approach a publisher? What are the best ways to attract interest from potential publishers?

Music publishing is a competitive business. Writers compete to get the attention of publishers and publishers compete to sign the writers with the greatest potential. There are some publishers who just need to hear the music to be inspired to sign a writer, but it is a good idea to have a clear idea of the market for the music before approaching a publisher. Of course it helps if the writer has already created music that has found an audience.  Different publishers specialise in different genres of music and some research is required to find the right publisher to pitch music to.

Who should be looking for publishing deals and at what stage does a publishing deal become a priority? I’ve been in the industry for a while and have a good set of contacts and networks. Do I need a publishing deal?

Music publishing isn’t rocket science but it does come with its own jargon and business practices. Writers who are prepared to spend the time to get an understanding of the industry and the royalty and rights flow should be able to manage their own affairs. However once the pressure comes on – for example through significant international success – it becomes much harder for writers to deal with the complexities of the industry on their own.

Is it more important for writers/musicians to have a record deal before a publishing deal? Can a publisher help me secure a record deal if I don’t already have one?

Music publishers in Australia have a long tradition of helping writers get their first record deal. However in the current environment, many people are looking to work without the help of a record company through self releasing their material. In these circumstances, it can be very useful for writers/artists to have music industry-savvy advisers such as music publishers on their team, to help them get what is due to them.

Should I expect an advance with my publishing deal or are they not a guarantee?

Advances aren’t what they used to be – the industry has tightened up considerably in the last few years. However there is nothing wrong with seeking a healthy financial commitment from a publisher – though often the more money upfront, the less attractive the royalty rates and other terms and conditions of the deal.

I want to have creative control on where and whom my music is licensed to. Does a publishing deal reduce my say on this? ­­­

Publishers are commercial animals and will want to encourage writers to exploit their songs widely, but a good publisher will always recognise the desire for creative control and will work with their writers to support their moral rights.

Who should I be speaking to before I sign a deal? 

A publishing contract is an important legal document. Advice from a lawyer who is familiar with the idiosyncrasies of the music industry is essential.

To find out more information about AMPAL and music publishers head to www.ampal.com.au

How Much Of A Work Can I Use Without Permission?

Generally speaking you will need permission every time you use a “substantial part” of another work. This does not mean that the part needs to be large; the law looks to the importance of the part to the entire work. A very small part of a song can be substantial. It is therefore advisable to seek permission whenever you sample another song, no matter how small the part may be.

How Long Does Copyright Last?

Generally speaking, in Australia, copyright in music and lyrics lasts for the life of the creator plus 70 years. Copyright in a sound recording usually lasts for 70 years from when the recording was first published. In New Zealand, these terms are 50 years. There are exceptions to these rules and if you are uncertain as to the duration of copyright in a work, seek legal advice.

What Is The Difference Between A Licence And An Assignment?

An assignment of copyright is a transfer of ownership. It must always be in writing and signed by the copyright owner. A licence simply allows another person to use the work without transferring ownership. It does not need to be in writing but it is always advisable to put agreements concerning the use of a work in a written form to avoid disputes as to the terms. Both assignments and licences can be limited by time (for example, for five years only), by territory (e.g. in Australia only) and by the rights to which they apply (e.g. to publish in print form only). 

What Happens When I Write Songs With Other People?

If you each contribute separate parts (for example, one writes the lyrics while the other writes the music), you would usually each own copyright in your part. If you write music together, then you may be joint owners of copyright in that music. This means that anyone who wants to use the work would need permission from both joint owners. It is always advisable to have an agreement clarifying copyright ownership in these circumstances. This helps avoid confusion and disputes. 

Who Owns Copyright?

In the absence of an agreement to the contrary, copyright in a musical work is usually first owned by the composer of that work. There are certain exceptions to this rule, and if you are uncertain, you should always seek legal advice. In practice, composers often assign or license their rights to third parties who then manage and exploit these rights on their behalf. Reproduction and publication rights are usually managed by a publisher, and communication and performance rights are usually assigned to APRA, which then manages these rights on behalf of its members. 

How Is Copyright Protected On The Internet?

The fact that a work is placed on the Internet does not mean that it loses copyright protection. Downloading or uploading that work without permission is, in most cases, an infringement of copyright, just as making copies of a CD without permission will usually infringe copyright. The ease of uploading, communicating and reproducing material, coupled with the difficulty in policing such activities, does mean, however, that the Internet poses a challenge to copyright owners.

This has, to some extent, been eased by the advent of legal sites for downloading and streaming music (such as the iTunes music store, Apple Music and Spotify). The Digital Content Guide (http://www.digitalcotentguide.com.au) provides details of safe and licensed digital content in Australia.  These sites provide a new avenue for licensing works, and a legitimate means for consumers to take advantage of the vast amount of music available online.

How Is Copyright Protected Overseas?

Australia and most countries in the world belong to international treaties under which they promise to protect the copyright in works created by each other’s citizens or residents. This means your work will be protected in, say, the United States under US law, just as a work created by a United States citizen will be protected in Australia under Australian law.

How Can I Prove That I Own Copyright If There Is No Registration System?

If there is a dispute about who created a work, it may need to be resolved by a court. The most important evidence in such a case would be oral evidence from the creator and from people who saw the material being created or who saw early copies. Other evidence may include drafts of the work or diary notes regarding the creation of the work. Such cases are, however, rare.

How Do I Copyright My Work?

Copyright protection is automatic. As soon as a work is put into a material form (for example, recorded or written down) it is protected by copyright. There is no need to register copyright. It is, however, advisable to put the copyright notice on all copies of your work. This is the copyright symbol ©, followed by the copyright owner’s name, and the year of first publication. For example: © John Guitar 2016