Publishing Rights when signing exclusive deals

A cozy place to hang out and discuss all things music.

Moderators: admin, mdc, TAXIstaff

edteja
Serious Musician
Serious Musician
Posts: 1171
Joined: Mon Feb 27, 2006 4:07 am
Gender: Male
Location: Siver City, New Mexico
Contact:

Re: Publishing Rights when signing exclusive deals

Post by edteja » Fri Jan 12, 2007 3:06 am

Anytime you accept an offer on intellectual property you naturally eliminate the possibilty of selling it to someone else down the road. Just the nature of the beast, be it a poem, book or song. You can sell (or assign the rights to) something you own exactly once (derivatives notwithstanding). But because various pieces of the pie have value, and some pieces can be sold independently, it does get confusing. And talking through scenarios this way is incredibly useful.
"In the future, when we finally get over racism, bigotry, and everyone is purple, red, and brown ... then we'll have to hate people for who they truly are."--George Carlin

User avatar
Casey H
King of the World
King of the World
Posts: 12426
Joined: Tue Jan 27, 2004 3:22 pm
Location: Philadelphia, PA
Contact:

Re: Publishing Rights when signing exclusive deals

Post by Casey H » Fri Jan 12, 2007 3:13 am

Quote:Quote:What would prevent you from doing that is the wording in every publishing deal I've ever signed or even just seen...whereby you warrant that the composition is original and not in any way based on or derivative of any other composition. You REALLY don't wanna try that, trust me...cause YOU the writer will be the liable party, and everybody from the duped libraries/publishers to any production that may have used your music will come after you for damages. I see ... *pokes head above clouds* ... so tell me if I have this right:If Publisher A licenses a song exclusively for TV, but re-titled (so you could still continue to shop it around under its original name), and if you ever wanted to license that song (under its original name) exclusively to Publisher B (for all media), the language in Publisher B's contract would effectively make your original contract with Publisher A illegal, unless Publisher B agreed to NOT license your song to TV.I could see how giving Publisher A an exclusive right to a certain form of media could cripple your chances of gaining a future publishing deal with another company. The thought process behind that is that if Publisher B would want exclusive rights to all forms of media, and if you have Publisher A's contract out there interfering with Publisher B's ability to get an all-inclusive deal, they'll say "not worth our trouble."Again -- these are DREAM scenarios, but it's important (and fun) to understand these things, as I'm sure we wouldn't be members of TAXI if we didn't think our songs at least had a chance to score these kinds of deals.If you want to enter an exclusive agreement (such as a publishing contract) with anyone, you need to terminate your non-exclusive deals. Be upfront with the party you want to sign with about it. Be careful about the termination language on your non-exclusive contracts. Many will let you terminate with 30 days notice, however, any outstanding pitches will remain under contract for a period such as 6 months. Even if the termination language is not as friendly, many non-exclusive libraries will let you out of the contract, provided they have not pitched the song or are waiting on current pitches for the song. (No guarantee of that, of course).Casey

horacejesse
Serious Musician
Serious Musician
Posts: 1055
Joined: Fri Feb 24, 2006 3:49 pm
Gender: Male
Contact:

Re: Publishing Rights when signing exclusive deals

Post by horacejesse » Fri Jan 12, 2007 3:31 am

Quote:If you want to enter an exclusive agreement (such as a publishing contract) with anyone, you need to terminate your non-exclusive deals.Ah, there is the crux.

middledistancerun
Active
Active
Posts: 35
Joined: Wed Dec 20, 2006 8:48 am
Location: Washington DC
Contact:

Re: Publishing Rights when signing exclusive deals

Post by middledistancerun » Fri Jan 12, 2007 6:16 am

Quote:Quote:If you want to enter an exclusive agreement (such as a publishing contract) with anyone, you need to terminate your non-exclusive deals.Ah, there is the crux.But is this true if you have 3 separate exclusive contracts with different publishers for different types of media?For example:Publisher A has an exclusive right to license your song to television.Publisher B has an exclusive right to license your song to films.Publisher C has an exclusive right to license your song to video games.Even though it might be extremely improbable, is something like this legally possible?In addition -- how would compulsory licensing affect this kind of relationship with a publisher? It is my understanding that the compulsory license means you have to license your song to ANYONE who wants to use it, as long as it is being used in certain media outlets. I just spent the past hour trying to find what those specific media outlets are, but I could not find a definitive list, but I DO remember reading that use in television IS covered by the compulsory license.In addition, isn't the performance royalty set by the government? How could you ever negotiate a better performance royalty rate (or can't you?)?Unless my understanding of compulsory licensing is incorrect, how is it possible to have a true exclusive contract with a publisher if someone else can just use your work under the compulsary license?

matto
Serious Musician
Serious Musician
Posts: 3320
Joined: Tue Mar 30, 2004 5:02 pm
Gender: Male
Location: Los Angeles
Contact:

Re: Publishing Rights when signing exclusive deals

Post by matto » Fri Jan 12, 2007 6:34 am

Quote:I see ... *pokes head above clouds* ... so tell me if I have this right:If Publisher A licesnses a song exclusively for TV, but re-titled (so you could still continue to shop it around under its original name), and if you ever wanted to license that song (under its original name) exclusively to Publisher B (for all media), the language in Publisher B's contract would effectively make your original contract with Publisher A illegal, unless Publisher B agreed to NOT license your song to TV.I could see how giving Publisher A an exclusive right to a certain form of media could cripple your chances of gaining a future publishing deal with another company. The thought process behind that is that if Publisher B would want exclusive rights to all forms of media, and if you have Publisher A's contract out there interfering with Publisher B's ability to get an all-inclusive deal, they'll say "not worth our trouble."Again -- these are DREAM scenarios, but it's important (and fun) to understand these things, as I'm sure we wouldn't be members of TAXI if we didn't think our songs at least had a chance to score these kinds of deals.You have it exactly right. That's really the drawback of signing a deal that gives somebody ANY kind of exclusive right, particularly if it's for the life of copyright. The key word is exclusive. It's really kinda like marriage .So it's important to try to objectively evaluate a song's chances prior to entering any sort of agreement. Most of us write a lot of songs, but only precious few of them (if ANY) objectively and realistically have even the slightest chance of becoming hits, whether for ourselves if we're artists, or for somebody else. Those you might wanna hold on to...the rest you should actively try to license...

matto
Serious Musician
Serious Musician
Posts: 3320
Joined: Tue Mar 30, 2004 5:02 pm
Gender: Male
Location: Los Angeles
Contact:

Re: Publishing Rights when signing exclusive deals

Post by matto » Fri Jan 12, 2007 6:48 am

Quote:[But is this true if you have 3 separate exclusive contracts with different publishers for different types of media?For example:Publisher A has an exclusive right to license your song to television.Publisher B has an exclusive right to license your song to films.Publisher C has an exclusive right to license your song to video games.Even though it might be extremely improbable, is something like this legally possible?In addition -- how would compulsory licensing affect this kind of relationship with a publisher? It is my understanding that the compulsory license means you have to license your song to ANYONE who wants to use it, as long as it is being used in certain media outlets. I just spent the past hour trying to find what those specific media outlets are, but I could not find a definitive list, but I DO remember reading that use in television IS covered by the compulsory license.In addition, isn't the performance royalty set by the government? How could you ever negotiate a better performance royalty rate (or can't you?)?Unless my understanding of compulsory licensing is incorrect, how is it possible to have a true exclusive contract with a publisher if someone else can just use your work under the compulsary license?I don't understand how a compulsory license would affect any of the above (btw you'll NEVER get anybody to offer you an agreement for JUST film but NOT tv, for example...all "semi-exclusive" deals I've seen cover "all visual media".)The compulsory license just allows some other artist to RECORD your song (and claim subsequent ARTIST royalties...mostly mechanicals...NOT performance royalties which go striclty to the author and publisher). It doesn't give anybody the right to claim any of the writer's or publisher's credit or royalties, nor does it give anybody the right to synchronize your song to film/tv without first obtaining a license from the copyright holder.

User avatar
Casey H
King of the World
King of the World
Posts: 12426
Joined: Tue Jan 27, 2004 3:22 pm
Location: Philadelphia, PA
Contact:

Re: Publishing Rights when signing exclusive deals

Post by Casey H » Fri Jan 12, 2007 7:09 am

Quote:Quote:Ah, there is the crux.But is this true if you have 3 separate exclusive contracts with different publishers for different types of media?For example:Publisher A has an exclusive right to license your song to television.Publisher B has an exclusive right to license your song to films.Publisher C has an exclusive right to license your song to video games.Even though it might be extremely improbable, is something like this legally possible?In addition -- how would compulsory licensing affect this kind of relationship with a publisher? It is my understanding that the compulsory license means you have to license your song to ANYONE who wants to use it, as long as it is being used in certain media outlets. I just spent the past hour trying to find what those specific media outlets are, but I could not find a definitive list, but I DO remember reading that use in television IS covered by the compulsory license.In addition, isn't the performance royalty set by the government? How could you ever negotiate a better performance royalty rate (or can't you?)?Unless my understanding of compulsory licensing is incorrect, how is it possible to have a true exclusive contract with a publisher if someone else can just use your work under the compulsory license?The hypotheticals here are getting a bit out of hand.The scenario you described would never happen. Licensing for film, TV, video games, advertising, internet, etc. is always lumped together. The distinction Matto referred to** is between artist pitches of the song itself for re-recording and uses of the master recording "as-is". (** not speaking for Matto)Let's clarify terminology. In general, publishing applies to all uses of the song itself while licensing applies to a master recording.You can't use the term "Publisher" and "Music Library" the same way. We have to be careful not to confuse publishing contracts with music library licensing deals. They are generally not the same. With a publishing contact, you assign all rights to your song to a publisher. They own the copyright and (generally) it is all encompassing, with no distinction between types of uses.Music library licensing contracts come in a lot of varieties as discussed on this thread. Some include publishing language whereby the library is also a publisher. Some have you promise to enter a publishing contract if they make a placement. Others don't want any publishing at all, just a split of the up-front license fees. Some are exclusive, even without publishing, so you are not free to pitch the master recording elsewhere. Some non-exclusives want a share of publishing but only for their own placements (the re-title scenario).Compulsory licensing applies to mechanical royalties when a song is recorded by an artist, not performance royalties. By law, the songwriter/publisher must be paid a rate for each mechanical copy of a song created. The current rate in the US is 9.1 cents. If your song is under contract with a publisher, this would be handled by the publisher who would share that money with you as the songwriter. The first time a song is to be recorded by an artist ("first use"), permission from the publisher is required and the mechanical rate is negotiable (but it would be unlikely you would get more than the normal rate). After that, anyone can record the song as long as they pay the compulsory rate mentioned above.Performance royalties are collected by PROs (ASCAP, BMI, etc) on behalf of the publisher and songwriter. The rates are confusing and subject to formulas used by the PROs. 50% of these go to the publisher and 50% to the songwriter.I recommend you pick up a book about the music business. Donald Passman's book, "All You Need To Know About The Music Business", is recommended...Casey

middledistancerun
Active
Active
Posts: 35
Joined: Wed Dec 20, 2006 8:48 am
Location: Washington DC
Contact:

Re: Publishing Rights when signing exclusive deals

Post by middledistancerun » Fri Jan 12, 2007 9:48 am

Casey -- you're probably not going to believe me, but reading Passman is what raised all of these questions in the first place! The section on compulsory licenses confused me, and made me a little nervous about what kind of power they grant the public over my / my band's material. I need to go back and re-read it, but I after going through it five times, I remember thinking "I wish there was more information in here as to what this really allows people to do."As far as not totally understanding the distinction between a publisher and a music library, that is definitely one area in which I need to do further research. Thanks for helping me understand that I don't understand this!!Ian

andreh
Committed Musician
Committed Musician
Posts: 993
Joined: Thu Apr 06, 2006 9:35 pm
Gender: Male
Contact:

Re: Publishing Rights when signing exclusive deals

Post by andreh » Fri Jan 12, 2007 10:30 am

Quote:The scenario you described would never happen. Licensing for film, TV, video games, advertising, internet, etc. is always lumped together.Casey-This may often be the case, but an exception in my experience is that video game publishers will sometimes license a cut exclusively for interactive media, but leave other forms of media open.Andre
The greatest risk in life is risking nothing.

User avatar
Casey H
King of the World
King of the World
Posts: 12426
Joined: Tue Jan 27, 2004 3:22 pm
Location: Philadelphia, PA
Contact:

Re: Publishing Rights when signing exclusive deals

Post by Casey H » Fri Jan 12, 2007 11:41 am

Quote:Quote:The scenario you described would never happen. Licensing for film, TV, video games, advertising, internet, etc. is always lumped together.Casey-This may often be the case, but an exception in my experience is that video game publishers will sometimes license a cut exclusively for interactive media, but leave other forms of media open.AndreThanks Andre for mentioning that... Casey

Post Reply

Who is online

Users browsing this forum: Bing [Bot] and 10 guests