Signing Up As Publisher

[pboss]

I just submitted my application to ASCAP as a publisher, and it brought up some questions. Hopefully someone here can help.

1. First of all, for those opportunities that are direct to supervisor, for example, is this necessary? That's why I did it. It appears that now ASCAP does require a publisher to be declared for publisher royalties to be sent, as opposed to defaulting to the writer if not publisher is specified.

In the online application process, ASCAP asks you if you have anything published, just like they do when you sign up as a writer. I chose a song that is signed to a semi-exclusive deal - exclusive for the library biz, but I still have rights to release in other markets like on my own CD, for example. That particular library signed that particular song and re-titled it. I am declaring that song has been published independently by me, (on my CD previously).

Regarding that one song, ASCAP asks me to confirm if:

"A. Applicant warrants that the work listed is a domestic or foreign copyrighted musical composition owned by Applicant as of this date." (yes, I am still the copyright owner).

"B. Applicant also hereby represents that there are no existing assignments or licenses, direct or indirect, of non-dramatic performing rights in or to the musical work listed"

2. So, if the musical work is signed by a library under a different name, how do I interpret B? Is it considered a different musical work? Am I in the clear on that point?

3. A third, less important question arises regarding people that are just publishers and not the copyright owner of the work referred to, above. If a person wanted to publish other people's works but not take over the copyright, then they would not be able to answer "yes" to question A. - I find that strange in this situation. Is ASCAP saying that even if a person plans to be a publisher of other works that the publisher is not planning to own copyright on, they STILL want that publisher to have at least one title that they DO own? This third question is just out of curiosity.

Questions 2 & 3 could/should be posed to ASCAP directly, I realize.


Thanks in advance for any insight or input.

[SANDPEARL]

I only know what I know from personal experiences (i'm hardly an expert) and can't comment on the ASCAP questions but I am a member...I set my own publishing company up because I have a deal with one library that doesn't take the publishing and like you mentioned in order to get paid you need to be a publisher - I also pitch directly and again to get paid for that side you need to be a publisher...also in the event of a RF sale that ends up on tv (which has happened to me) you need a company to get paid...even in retitling situations occasionally a case can arise where the end user has the song in mind for a project and then the song gets dropped from the library....this happened to me and because I had my company setup I got the publishing....hope that helped..

[Casey H]

Hi Patty
Yea, I would definitely contact ASCAP and try to get answers directly from them just to be sure. A phone call would be best if you can work out the time zone and cost issues.

One word of caution with the phone call... I've found that occasionally calling ASCAP is like calling the cable company. Not everyone who takes your call knows what they are talking about it. If you don't get someone knowledgable, ask to speak to a supervisor or someone else... or call back... Odds are much better with ASCAP than the cable company, though.

Best,
Casey

[pboss]

Thanks, Casey and Sandpearl. Sometimes calling also calls attention to oneself, "What? you mean you filled out the form and you declared what??! We're marking that on your eternal cable record!" ...That's what *67 is for

[Russell Landwehr]

Heya Patty

I'm interested to hear what ASCAP has to say.

"A. Applicant warrants that the work listed is a domestic or foreign copyrighted musical composition owned by Applicant as of this date." (yes, I am still the copyright owner).

"B. Applicant also hereby represents that there are no existing assignments or licenses, direct or indirect, of non-dramatic performing rights in or to the musical work listed"

2. So, if the musical work is signed by a library under a different name, how do I interpret B? Is it considered a different musical work? Am I in the clear on that point?

3. A third, less important question arises regarding people that are just publishers and not the copyright owner of the work referred to, above. If a person wanted to publish other peoples' works but not take over the copyright, then they would not be able to answer "yes" to question A. - I find that strange in this situation. Is ASCAP just saying that even if a person plans to be a publisher of other works that the publisher is not planning to own copyright on, they STILL want that publisher to have at least one title that they DO own? This third question is just out of curiosity.

.

I always thought that a Publisher "owned" the copyright since it was "assigned" to them by the creator of the work. Therefore they are considered "owner" for the terms of the assignment. Hence publishers who "buy the copyright" where the creator still gets the writer's share of the royalties. I would think that a Publisher who publishes something without owning the rights would be doing it for free? Or at least for only the mark-up on the product that is sold, while the assigned publisher makes the mechanicals and performance royalties. Then they wouldn't be a publisher, right? Just a producer or TV show or...

I'll bet as to question 2, that it will be just like any other retitle by different publishers. They are the registered publisher for that title of the work so the publisher for the original title doesn't get the $$ for the hard-earned retitle placement. I bet this is separate from copyright infringement, since this is on the "performance" side of the coin, not the "created work" side of it.

I'm not saying this is the way things are, I'm just supposin'. I'm thinking out loud. And wondering.

Hope to hear back from you after your conversation with ASCAP.

Russell

[pboss]

I would think that a Publisher who publishes something without owning the rights would be doing it for free?

Hi Russell, I'm REALLY glad you brought up this question, because like Mazz has pointed out, the more we as composers know about the business (and value what we do) then the better for all composers. Well, that's my paraphrased interpretation of what he has expressed more than once here on this forum.

The copyright is a separate issue from who is the publisher and who is the writer. The publisher gets "something" ie; royalties because they are registered as the publisher with the PRO, AFTER you give them permission to do that (in your contract). Their job is not necessarily to own the intellectual property, although some want to, and composers do relinquish it within their respective contracts. Each deal you get will say to you, "Hey, we want the copyright assigned to us, forever (or for five years, etc). or the contract may say, "Hey, you retain all rights to the copyright as well as the right to license this song in all markets except in other music production libraries".

Update: EVEN THE GUY answering the member-services phone at ASCAP today did not seem to be aware of this distinction. He kept referring to the publisher and the copyright owner interchangeably, like they were always one-in-the-same. I clarified this on the phone with him (I think).

It's really important that we understand that as soon as we create intellectual property we already, by default, own the copyright even if we have not registered it officially with the copyright office. BUT if you have a claim against someone using your song, or claiming it is theirs, then before moving forward you do need to file a copyright form. I am not a lawyer and this is not legal advise, it is for entertainment purpose only. BUT this is what I read in that book called, "This Business of Music" a few years back. And I have signed some contracts that give away the copyright and some that retain it. There are plenty of things I don't know, but this is a fundamental point. If this is not true, someone can please chime in.

Dave Grohl http://www.npr.org/event/music/17333150 ... ote-speech
reminded me in this speech, that WE CREATE THE CONTENT and OWN it, and simply LICENSE others to use it for a while. Of course, he's all famous and has the leverage to say, "I want to retain my copyright". Sometimes when you are building a business you may trade something like your copyright for something else, like a relationship or an opportunity to get started.

I finally was able to get a hold of ASCAP member services on the phone. Yes, the individual (referred to above) did not appear to readily know the answer to my two questions, but was nice and patient and consulted a colleague while I waited. My two questions Specifically were:

1. "If a song is registered under one name, and then the same exact song is re-titled and registered under a second name, is it considered to fit the definition of a different musical work?". The answer he came back with was "Yes, it is considered by ASCAP to be a different musical work".

2. "If a wanna-be publisher fills in this online application form, essentially the agreement specifies that this individual must own the copyright to at least one published work ie; the "sample" musical work stated during the application process. Is this really the case!??". **To my surprise, after he consulted a colleague, he came back to me and described how this wording will be stricken from the sign-up agreement in the next few months, and that essentially this is NOT the case.

If you are a publisher and don't own any copyrights to the works you publish or plan to publish, it's OK. This is what he described to me today. And this answer makes MUCH MORE sense than the actual wording in the online agreement. Again, for me personally, this second question was just an academic question.

They had already approved my application within about one day, and ASCAP just requests that you register at least one song under your account to sort of "finalize" your status, so to speak, just like they do when you sign up as an writer. So, all questions have been answered to my satisfaction for now.

pboss

[solidwalnut]

Hey, pboss. I'm glad you got ASCAP to change their form. Sounds like you had no problem after that. Glad it's all behind you.

It's right that they change their wording on the app. ASCAP as a PRO only cares (at the end of the day) whether or not you're the publisher of record for the work so they can send payment. It sounds to me that whoever wrote up that online form just assumed that if someone controlled the publishing, then they must control the copyright as well. It sounds like you knew that and had them change their ways. Good on ya.

An actual publishing company is smart to have the copyright assigned to them for the purposes of exclusivity in exploitation (one who controls the publisher's share of a work does not automatically have ownership of the copyright. The owner of the copyright will have the exclusive rights to find exploitations. Hence the need for copyright assignment. This is a portion of the law that can be successfully argued in any case of doubt). If a publisher/library wants exclusivity, they'll file for copyright re-assignment. Non-exclusivity = no copyright assignment.

If you are self-publishing, then to protect your publishing company and dot the i's and cross the t's, you'll want to create an assignment document that you, pboss, assign this copyright to pboss publishing. You can also accomplish the transfer on the original application to your publishing company by stating that pboss publishing owns the copyright simply by stating the words 'by assigment' to avoid having to send in notification of assignments to the LOC (I wonder how many publishers actually take care of this?).

It all seems like splitting hairs and worrying too much. But it can become a real headache the more the publishing is split so it becomes really necessary to understand who has exclusivity and who owns the copyright. Really, in the end, it doesn't matter too much whether or not the LOC is notified of a legal transfer. The signed contract is enough. And, hey, we're just trying to make some money from our work, so let the lawyers play their games. But, it's good to know this stuff. If the LOC has record of a transfer, then they will be a witness to that in a court of law should it become necessary.

Steve

[pboss]

Thanks, Steve for posting your ideas and info here. One thing that is cool - and this is to encourage others, is that a month after I established my publishing, in my effort to be pro-active - for those cases where a publisher splits it with you 50/50 because the TV show they're placing on is on a gratis / blanket license - well, at least that was the case for me. Right after I did the publisher signup via ASCAP, I got a two song deal where they share publishing, and it was kind of a relief to have already set it up.

The only word of caution that I would share is that you actually CAN do it without setting up a DBA but you need to make sure the payment name is the same as your legal name and that actually takes one extra step after you have done the pub. status in ASCAP. You go back into the system and make a request about the pay-to info.

The other PROs do it a bit differently potentially, so this is my own experience with ASCAP in spring of 2013. Things change so keep that in mind.

[solidwalnut]

Hi pboss--

Would you mind elaborating what you mean about:

The only word of caution that I would share is that you actually CAN do it without setting up a DBA but you need to make sure the payment name is the same as your legal name and that actually takes one extra step after you have done the pub. status in ASCAP. You go back into the system and make a request about the pay-to info.

The other PROs do it a bit differently potentially, so this is my own experience with ASCAP in spring of 2013. Things change so keep that in mind.

I think I understand, but when you say 'payment name the same as your legal name' and it takes one extra step after the ASCAP set-up, I'm getting lost. My music company name for ASCAP is the same name as my music company with a separate bank account with that name on it. Is that what you're talking about? You said, 'You go back into the system and make a request...'. Are you talking about setting up the payment routine in ASCAP?

Thanks much,
Steve

[pboss]

Hi pboss-- Would you mind elaborating what you mean about: 'payment name the same as your legal name' Are you talking about setting up the payment routine in ASCAP? Thanks much, Steve

Hi Steve, Yes, I am talking about the payment routine in ASCAP. You are already set on yours of course and went through the process of getting a separate bank account for your business, but I was trying to skip the DBA (doing business as) step. There is a way to skip it, which I was excited to realize.

I was talking about the scenario where the publisher name is different from the legal name as an individual (which is most cases). I wanted to literally get ASCAP to pay publisher royalties into my own personal bank account. They do allow for this, but you cannot set it up this way upon the initial ASCAP publisher account creation.

ASCAP defaults to having the 'pay-to' on your account be the same as the publishing company. BUT THEN.. if you go back into your account after it's created and been processed (takes a few days), you can go to that section your account and make the request that the 'pay-to' party is changed. ALTHOUGH you do not get to choose any old name or person. You do have the option of changing it to your own legal name, and that's about it. So that's what I did, and this way, for checks as publisher, I can have them go into my personal account and I skipped the whole "create a fictitious business name" and then bring that proof to the bank, and open a business account in that name. I'm posting the details here so others who haven't done all this might get an idea of the options. But thanks again for your interesting input regarding the terminology.