Music publishing and the songwriter's share

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There are two kinds of music publishers: the independent publisher (including self-publishing) and the record label publisher.

The music publisher is involved in the creative, financial and administrative aspects of a songwriter's copyright.

The creative work involves development of a songwriter's career to market demos in the hopes of getting a record deal.

All the business aspects, such as negotiating, investing in developing talent, and how much to spend on recording demos, are part of a publisher's daily workload.

Publishers generally have some musical background in order to judge a song's market potential. Administratively, the publisher must keep track of all the songs by collecting royalties from a royalty collection agency, its ongoing administration and royalty payment to its songwriters.

The benefit of hiring a well-established music publisher is that time, energy, money and industry contacts and expertise are the elements that a music publisher offers to an aspiring songwriter who wants to exploit their songs. Remember, the money is in the songwriting!

The administrative aspect of a publisher's job reveals just where the money goes. The music standard of the publisher/songwriter split is 50-50.

Imagine a pie, and it gets quite interesting when two songwriters have two different publishers. The split then becomes 25 per cent each. It gets even more complicated if, for example, a drum group song had five composers. Assume the first composer (sometime they call them lead singers) gets 50 per cent of the songwriting credit and the other four get the remaining 50 per cent.

Are you still looking at your pie? Now, assume you have one publisher and five members but in some of the songs your cousin from another drum group composed a song with you years earlier. In the songwriter's share, who composed the lyrics? And, who composed the music? Was it 75-25 or a 90-10 ratio?

Of the 50-50 split, your cousin claims a contribution of 90 per cent to the music and 10 per cent is shared by you and another contributor. That now equals five per cent of the songwriting split.

A mechanical license must be made between the record company to pay the fees to a licensing agency to your cousin's publishers. Just like when you have that powwow trail hit and a record company wants to record it, it must inform the songwriter, the publisher or the mechanical rights organization, such as the Canadian Musical Reproduction Rights Agency or the Harry Fox Agency.

In the publisher/songwriter agreement, this is where you, the powwow songwriter, might stipulate in your now negotiated publishing agreement that none of your songs be used in any medium that denigrates Aboriginal culture. The possibility that it could find itself used as background music for a strip club act in a movie is too real. Don't laugh or cry-these things happen!

Remember, the salt of a good music publisher is to exploit your songs in as many markets and mediums as globally possible. You may be the talk on the powwow trail, but now you'll be getting your royalty share from the release of this internationally-successful feature film.

The mechanical rate is compulsory and is established by the Copyright Board of Canada. It is currently .077 cents per copy per song of five minutes or less. If you release your CD in the U. S., the Harry Fox Agency is the clearinghouse for numerous music publishers that issue licenses and collect performing rights royalties. The U.S. mechanical rate is .08 cents per copy per song.

Under an exclusive term contract with the music publisher, a lower royalty rate can be negotiated under the controlled composition clause for songs written and performed by an artist who records their own music, common in recording contracts.

Basically, the controlled composition clause is favorable to the record company because it can stipulate that the mechanical rate will be 75 per cent of the statutory rate for those songs controlled by theartist. In this scenario, the artist would get 75 per cent of the .077 cent per song (five minutes or less) or approximately .57cents for each song.

Another example of financial creativity used in the controlled composition clause is negotiating a deal using the mechanical royalty rate on the date of recording. So it takes you two years to compose and release your CD, and in the meantime, the statutory rate goes up and you get paid the older and lower rate.

There are many, many more examples of the creative genius that record companies use in the controlled composition clause, but suffice it to say, if you don't understand what those percentage points can tally up to, you will no doubt find out when your measly royalty cheque comes in the mail! You can laugh or you can cry.

This column is for reference and education only and is not intended to be a substitute for legal advice. The author assumes no responsibility or liability arising from any outdated information, errors, omissions, claims, demands, damages, actions, or causes of actions from the use of any of the above.

Ann Brascoupe owns What's Up Promotions, a company specializing in promoting booking, and managing aboriginal artists across Canada. She can be reached at abrascoupe@hotmail.com