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Music Publishing

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The contractual relationship between a songwriter or music composer and a music publisher, whereby the writer assigns part or all of his or her music copyrights to the publisher in exchange for the publisher's commercial exploitation of the music.

Music publishing has been an important part of the U.S. entertainment industry since the early twentieth century. Songwriters contract with music publishing companies to exploit their songs, with both parties sharing the income generated from the songs. Before the introduction of musical recordings, songwriters and publishers earned their income primarily from the sale of sheet music. In the modern era, songs can be commercially exploited in many types of media, including recordings, radio, television, film, and video. Music publishing is governed by U.S. Copyright law, but much of the law of music publishing is negotiated through private contractual agreements.

Music publishers are powerful intermediaries between songwriters and recording companies. Typically, a music publisher demands copyright ownership from the songwriter, along with half of the royalties. A publisher may make a large cash advance to a popular or promising songwriter, but often the advance is minimal. In return, the publisher seeks to place the songwriter's compositions with performers who will make a recording. In addition, a publisher will try to place songs in films, television shows, and advertisements. If the songwriter is also a performer, the publisher will assist the artist in obtaining a recording contract. The publisher also assumes the responsibility of collecting royalties and giving the songwriter his share.

Publishing income comes from various sources, but it is separate from income derived from retail sales of recordings. Income from recording sales flows to the owner of the recording (usually the record company), which then pays a contractually negotiated recording royalty to the performer. The owner of the recording separately pays the publisher of the recorded compositions a mechanical royalty for the right to record, copy, and distribute copies of the composition. These royalties are called mechanical royalties because the license is for mechanical recording and reproduction of the composition.

Under U.S. copyright law, a publisher is required to grant a mechanical license to anyone wishing to record a composition that has previously been recorded and released commercially. This is called a compulsory license, and the minimum rate that must be paid to the publisher for such a license is set by Congress at a few cents for each copy made of a recording of the composition. Normally, however, a record label that wishes to record a publisher's composition will negotiate a private license with the publisher rather than follow the strict accounting and reporting rules that accompany recording under a compulsory license. Because of this situation, the statutory compulsory license rate has become the effective ceiling rate for recording a composition, because no one need pay more than the rate set by law.

A lucrative part of music publishing involves performance royalties. Performance royalties are paid when a song is played on the radio or television, used by businesses for background music, or used by clubs for dance music or by bands performing at a club. A popular song can earn thousands and sometimes millions of dollars through the collection of performance royalties. However, it would be too demanding for a publisher to sign performance licenses with every club, radio station, and business office that might use a particular song. Instead publishers and songwriters register with a performing rights organization (PRO) to collect fees on their behalf.

The three PROs in the United States are the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music Inc. (BMI), and the Society of European State Authors and Composers (SESAC). The PROs negotiate blanket licenses with all who use music for profit. Such fees can range from less than one hundred dollars for a small business using music to enhance its business environment, to hundreds of thousands of dollars or millions of dollars for large-scale broadcasting entities. The PROs then monitor radio and television broadcasts, and then using a complex statistical model, they pay publishers and songwriters based on projected actual uses of a song. When a composition is registered with a PRO, the registrant informs the PRO what percentages of royalties are to be paid to the publisher and songwriter. The PRO issues separate payments to the publisher and to the songwriter (or song-writers). A particular songwriter may only be registered with one PRO at a given time to avoid confusion as to which PRO is responsible for collecting performance royalties on the song-writer's behalf. The use of blanket licenses allows an artist to perform compositions written by another songwriter without first requesting the songwriter's permission.

As opposed to mechanical licenses, there is no statutory rate for the use of a song in films and television advertisements (synchronization licenses), in radio advertisements (transcription licenses), or for sale as sheet music (print licenses). These fees are negotiated separately between the user and the music publisher. The licensee pays the entire fee to the publisher, who then pays the songwriter's share to the songwriter.

Recording artists who feel that the publishers have cheated them out of part of their royalties often take the publishers to court. High-profile artists have sued, claiming that their celebrity and marketability has not given them leverage against the music industry. The pop star Michael Jackson, who was wildly successful in the 1980s, launched a lawsuit against Universal Music Group (UMG) in 2003 claiming that UMG owed him millions of dollars in royalties from music he recorded (alone and with his brothers) that was released after 1980. In September a judge in Los Angeles threw out part of Jackson's lawsuit. Jackson had given up his rights to all songs released before 1979 in a deal with the music publisher Motown (which was later bought by UMG). Jackson attempted to cancel the 1980 agreement with Motown as part of his suit, but the judge ruled that there was no justification to cancel the agreement; consequently, all pre-1980 tunes were removed from the suit.

Musicians also sue each other for copyright infringement. In the case of Three Boys Music Corporation v. Bolton, 212 F.3d 477 (9th Cir. 2000), a jury awarded rhythm-and-blues group the Isley Brothers $5.4 million in a lawsuit against the singer-songwriter Michael Bolton and his co-writer. The Isley Brothers maintained that Bolton and Goldmark's 1991 song Love is a Wonderful Thing was substantially similar to their song of the same name, released in 1966. While Bolton and Goldmark contended that they had not deliberately copied the song, the jury felt they were similar enough to prove the Isleys' case. The Ninth Circuit Court of Appeals upheld the verdict.

Since the 1960s, many popular musical performers have written their own musical compositions. Some of these artists choose to "self-publish," forgoing relationships with publishers and thus retaining full ownership and control of their copyrights. These artists are more often songwriters whose compositions are so unique that they are not likely to be recorded by other performers. Therefore, this type of artist will receive little benefit from an outside publisher's marketing efforts. However, because the music industry's royalty structure assumes that publishing income will be paid to a publisher, a self-published artist often will set up her own publishing company under an assumed name to receive publishing income. A self-published artist will frequently hire an accounting firm to handle specific administrative functions such as royalty collection, for a much smaller fee than a full-service music publisher would demand.

In the early 2000s, the advent of music-sharing over the Internet has begun to change the face of the recording industry. With file-sharing software such as Napster and KaZaA, individuals can trade favorite songs and down-load them to their computers. The recording industry began retaliating with a series of lawsuits, as did individual artists such as the rapper Dr. Dre and the heavy metal band Metallica. Although the creators of file-sharing software have made efforts to comply with copyright laws and work with music publishers, the computer has made music piracy a significant issue. The Recording Industry Association of America (RIAA) went on the offensive in the summer of 2003 with a series of legal actions. It filed 261 lawsuits against individuals who allegedly downloaded and shared music illegally. Since some of those named were children and others were adults who claimed their grandchildren had downloaded the music, it was widely believed that the move was more to make a point than to go after ordinary citizens. The RIAA also went after colleges and universities, a huge market for file-sharing, and a number of colleges have begun to crack down on illegal music sharing. This situation has raised issues of privacy (should a college be required to report a student caught downloading pirated music, or does the student have the right to anonymity, for example), and as technology continues to become more sophisticated the issue will undoubtedly need to be explored carefully and continuously.


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    Further Readings

    "Judge Rejects Part of Michael Jackson's Lawsuit Against Music Giant." September 20, 2003. Reuters.

    Krasilovsky, M. William, and Sidney Shemel. 1995. This Business of Music: A Practical Guide to the Music Industry for Publishers, Writers, Record Companies, Producers, Artists, Agents. New York: Watson-Guptill.

    Liggett, Mark, and Cathy Liggett. 1993. The Complete Handbook of Songwriting: An Insider's Guide to Making It in the Music Industry. New York: Dutton/Plume.

    Lubell, Sam. 2003. "Campuses Move to Block Music Sharing." New York Times. (Oct. 2)

    Sanders, Rob. 2000. "The Second Circuit Denies Music Publishers the Benefits of the Derivative Works Exception." Southwestern University Law Review 29 (spring): 655–79.

    Satorius, Daniel M., ed. 1993. The Practical Musician. St. Paul, Minn.: Minnesota Continuing Legal Education.

    Sobel, Lionel S. 2000. "The Nuts, Bolts, and Politics of the Evolution of Music Law." Sedona Conference Journal 1 (July): 235–43.

    Veiga, Alex. 2003. "Recording Industry Suing Hundreds of Music Swappers." Charlotte Observer. (Sept 8)

    Whitsett, Tim. 2000. Music Publishing: The Real Road to Music Business Success. 5th ed. Vallejo, Calif.: MixBooks.

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