Lone Shark >> RESOURCES >>Music Publishing

Music Publishing >>
‘…Among all those who live for and off music, the publisher plays the most ambiguous part.
He stands at the crossroads of art and commerce where enthusiasm for the art and business sense meet or miss each other; [he stands] between artistic obsession and commercial acumen, promoting the art and translating it into good money. Composers expect from him both fame and fortune…’
Ernst Roth. 1969 The Business of Music. Cassell

‘…There is no harm in reminding ourselves why music publishers exist. Fresh ideas and thinking are constantly needed for the music publisher’s essential roles – recognition of extraordinary talent, aggressive promotion, imaginative thinking about music use, astute protection of rights and efficient administration…’
Peter Dadswell. Music Copyright Matters. January 1998

An Introduction
*In this essay, ‘publisher’ should be assumed to mean ‘music publisher’ unless otherwise stated. It can be taken to cover publishers of any size, from independent individual publishers to the major international publishing companies. In this essay, the roles of the publisher as a whole (whether a small or large company) will be considered, acknowledging that in larger companies, different departments will deal with different aspects of a publisher’s activities. Also, ‘exploitation’ should be considered in the positive sense.

In the first quote (Roth, 1969), the publisher is very much romanticised as a kind of maverick hero, outlining the goals of a publisher (translating art into money) without describing what exactly a publisher does. The dramatisation of the text (e.g. ‘stands at the crossroads’ ‘meet or miss’) is to highlight the contrast he sees between art and commerce. He sees the publisher as the middleman, the person who needs to co-ordinate both parties to reach a shared goal.
Dadswell (1998) on the other hand gives a more ‘to-the-point’ explanation of the roles of a publisher, which would appear more convincing of their importance to somebody who didn’t see the need for publishers, than Roth’s poetic praise. It also differs in that, whilst Roth sees the publisher ‘standing at the crossroads’, it seems Dadswell envisions a publisher doing anything but stand still, i.e. he must be extremely proactive in the exploitation of copyrights. ‘There is no harm in reminding ourselves why publishers exist’, would suggest that Dadswell believes publishers have nothing to be ashamed of as some people might have them believe.

Music publishers are so called because their original duties (since the introduction of the printing press in the late 15th century) involved publishing sheet music, which was sold to musicians. Nowadays, sheet music is rarely even a significant proportion of a publisher’s income, as technological progressions (in particular sound recording) mean songs are used in an endless variety of ways. We hear music everywhere, pubs, shops, radio, CD, doctors’ surgeries etc. and copyright (See Appendix 1) laws mean that the ‘creator of an artistic work’ is entitled to ‘royalties’ (See Appendix 2) for every performance of their work. Currently, works are considered under copyright until 70 years after the death of the (last surviving) writer.
When looking at the role of a music publisher and music publishing, it is impossible to completely separate the business and creative roles involved, as they are inextricably inter-linked. For example a publishers duty to finding inventive and creative ways of exploiting a song is also beneficial to the company in a business sense. This essay intends to look more specifically at the roles of a publisher, and the unwritten notion of his ‘duty of care’ towards his writers.
‘Duty of care’ can be formal (i.e. relating terms in contract) or informal (i.e. activities that aren’t obligations, such as keeping in touch with a writer or informing them of progress).

The Business Roles of a Music Publisher
Some of a publisher’s most important internal (i.e. towards himself/ his company) duties of care involve the efficient organisation of the company. For example, it is vital that any demos or manuscripts received by a publisher are correctly logged (See Appendix 3). Not only does this lead to easier access and identification of works for staff in different departments the company, but also helps to put the writer at ease should they have any enquiries regarding their work. An example of this is if a writer phones the publisher to check the status of a demo he sent; if he is told they can’t find it he make think twice about sending future demos to that publisher. Bad organisation in a company gives a bad impression, and the last thing a publisher (or any business) wants to do is earn a reputation for being unorganised and inefficient.
Many publishers consider it a nice touch to acknowledge the receipt of a song in writing to the composer. Although this may consume more time and money on the publisher’s behalf, songwriters will appreciate knowing that their work has arrived safely and respect the publisher for informing them. As most publishers rely on the continuous receipt of potential ‘hits’ it is a good idea not to offend songwriters with a complete lack of response.
Once a publisher has decided whether or not he wishes to do something with a song or a writer (usually after putting it to the A&R committee), the writer must be informed of the result.

If the song is to be rejected, a publisher must consider how to tell the writer. Unless a publisher is 100% certain that they don’t want any further contact/ material from a songwriter, it is usually the best idea to be courteous, and leave them with the impression that although that particular work wasn’t chosen, the publisher would still consider future works by them. A good publisher will appreciate and respect the creative bond an artist (i.e. the songwriter) has with their art (i.e. the song), and that criticisms of a work can often be taken as a personal insult.

On the other hand, if the publisher decides they do want to do something with the material they should invite the writer in to discuss what it is they want from the publisher. From this point a deal can be structured and negotiated until both parties are satisfied.
There are a variety of contracts and licensing deals (See Appendix 4), but this essay will concentrate on the ‘Single Song Assignment’ (SSA) and the ‘Exclusive Songwriters Agreement’ (ESA). These are sometimes known under various other names (See Appendix 4).
An SSA means that the copyright in specific works is assigned to the publisher, in return for the exploitation and administration of those works. It can be for more than work; it is a single assignment for songs, rather than an assignment for a single song. With this kind of deal, a songwriter is free to get songs not covered in the assignment published with other publishers.
Conversely, under an ESA, a composer is tied to a certain publisher for the term of the contract and is unable to write for anyone else during that period. In return for this exclusivity, writers feel satisfied the publisher has a commitment to, and a belief in them and can often expect the publisher to be more proactive in exploiting their material.
Accounting is vital in a publishing company as the collection and distribution of royalties is essentially the main business role of a publisher. In the UK, there are two collection agencies publishers must join, and that copyright songs must be registered with, before the royalties can be administered. These are the Performing Right Society (PRS)(See Appendix 5), and the Mechanical Copyright Protection Society (MCPS)(See Appendix 6). The PRS collects royalties for the public performance and broadcast of works. This includes recordings played on radio, and in pubs, shops, gyms etc. as well as live performances of songs, whether it be The Rolling Stones at Wembley Stadium or The Botox Kings at The Dog and Trumpet in Slough. This is generally collected through licence fees for premises, and a percentage of gate receipts from larger concerts. Writers and publishers are allowed to join PRS individually.
The MCPS on the other hand, collects ‘mechanical royalties’. These are earned from the manufacture of products, from CDs and videos to novelty items such as musical greetings cards or clothing. The royalty rates are calculated depending on the cost of the product (See Appendix 6). Writers can only join MCPS if they have a publisher. Currently, many independent labels are unhappy with the way these royalties are calculated using ‘AP systems’ (More detail in Appendix 6).
Recently, the PRS and MCPS joined forces to become what is known as The MCPS-PRS Alliance, although they remain ‘separate societies in terms of income, constitution, membership and guardianship of different rights’ (MCPS-PRS Alliance, 2002). Through their foreign affiliates, these companies can also collect and distribute royalties from foreign countries.
There is currently no collection agency for the publication of sheet music, so this is left to the publisher to negotiate with the printer or retailer.
Royalties collected by the publisher are then distributed to the writer depending on the terms of the contract. Publishers are not allowed to take more than a 50% share of royalties earned by a writer, and a more common starting rate for a writer would be 60/40 (in writer’s favour). The more established a songwriter, the more royalty points he can demand.
If a writer is a member of PRS individually they will pay him royalties directly. However, they don’t give more than 50% direct to the writer, so for example, if a writer has a 60/40 deal with his publisher, the publisher is obliged to pay the remaining 10% out of his share.
To register a song with these agencies, the publisher must complete a ‘Joint Notification of Works Form’ (JNF/ JNWF), which could be regarded as ‘external duty of care’. This contains information about the song, writer(s), ‘points’ (oddly, the PRS calculates the royalty spilt using twelfths), and what kind of deal exists between the writer and publisher, in order for them to calculate what royalties are owed.
Another increasingly important area of royalty income for publishers and writers is ‘synchronisation fees’. These are paid to the publisher when a piece of music is used with visuals, e.g. in an advert, TV show or Hollywood movie. There is no fixed rate for synchronisation fees; they are negotiable between the publisher and the producer.
Once the correct registrations etc. are in place, the publisher can concentrate more on his creative roles.

The Creative Roles of a Music Publisher
The creative side of publishing not only involves the exploitation of works (i.e. trying to get as much benefit from their use as possible) but also the protection of them. A good publisher needs to keep abreast of the scene, so as well as looking out for rising genres/ writers, he can keep an eye out for infringements of copyrights assigned to him. The protection of copyrights has become increasingly important in recent years, with music piracy more rampant than ever due to technological progressions, in particular CD burners and the Internet. This has been a major concern for publishers, as the availability of music for free on the Internet threatens the notion of royalty fees. One of the aims of British Music Rights (BMR) - of which the Music Publishers Association (MPA) is a member – is to raise awareness of the importance of copyright, and an understanding of the concept of royalty payments (BMR, 2002). They hope this will help prevent piracy, as people will have more respect for the creative work and rewards deserved, but it seems unlikely that many people will actually stop obtaining pirate music when it’s available for free.
Whether an ESA or SSA, the publisher has a duty to the writer to fully exploit the work in a variety of ways. A minimum exploitation facility is often written into the contract, meaning that if a publisher hasn’t reached a stated aim (e.g. securing a record contract/ gaining airplay for the work) within a certain amount of time (e.g. two years), then the copyright in the works may be reassigned to the composer (See Appendix 7). When stated in a contract, this can be considered as a formal duty of care. Publishers will aggressively promote songs in order to recoup the most benefits, whether in financial terms or kudos.
Music publishing is considered as very much a peoples business. This is not only in the day-to-day dealings internally and with writers, but perhaps more importantly, externally. Networking is vital in the music industry as a whole, and publishing is no exception. ‘Plugging’ is an essential role played by the publisher, and involves far more than just playing songs to current or potential colleagues/ clients. In order to gain maximum success, pluggers must develop good relationships with radio/ TV producers and know what sort of material they would be interested in. Smalltalk, gifts, schmoozing and general charm all play key roles in the successful promotion of a song. It is not only broadcasters that need to be ‘kept sweet’, a variety of contacts such as record companies and agencies (songwriters that aren’t performers need artists to ‘cover’ their songs) and often venues and studios (upcoming artists need gigs/ demos) are all necessary contacts in the symbiotic music business.

Printed music still plays a large part in the classical music publishing industry. Classical publishers generally need a high level of theoretical and musicological expertise as they are sent scores and manuscripts, which often contain complex musical notation. Their roles include the conversion of the original manuscript into the published edition, sending the music to suitable conductors/ performers/ record companies etc. and generally gaining maximum exposure for the work. Classical publishing is an area with very high production costs, due to the expense and high numbers of (classical) musicians often needed. For example, many compositions will include scores for a variety of instruments/ sections/ orchestras, which only an expert musician would be able to read/ perform. Many classical composers are in the business for the love of the music or the cultural heritage associated with the genre. Generally the commercial returns and the degree of legal protection are less satisfactory (Batory, [n.d.]).
Although many of the basic principals of popular music publishing are the same, it is a much faster moving and aggressive sector. In popular music, the majority of royalty income is earned through record sales and mainstream broadcasting, rather than sheet music sales and concerts. Public tastes change rapidly and it is essential for publishers to keep on the ball when it comes to spotting or even anticipating changes and upcoming scenes.
The main creative roles of the publisher can be considered under three main headings (Batory, 2002):
*Acquisition
*Nurture
*Facilitation
Talent can be acquired in a number of ways. One method, more common for major labels is ‘chequebook publishing’; in other words buying out entire publishing companies. In terms of ‘discovering’ new talent; publishers receive a huge amount of ‘demos’ from budding songwriters which are ‘auditioned’ before a decision is made on whether to pursue them further. Many popular publishers also employ scouts to attend all kinds of gigs in differing venues around the country, looking to uncover ‘the next big thing’.
These people need great skill in identifying songs or artists with the potential to earn the publisher big money which will ‘ensure the continuing welfare of the company in a volatile market’ (Batory [n.d.]).
The promotional activity, or exploitation, involves many different aspects. For example, as well as those already mentioned (plugging/ networking etc.), a publisher may be expected to bear the cost of producing a high quality demo or arrange showcase gigs (for performing writers) in order to attract attention from important record label, broadcasting and media people.
For composers and songwriters that don’t perform their songs, the publisher has the job of pairing a song with a suitable artist that he feels would perform the best representation of the work. This is part of the ‘nurture’ stage. They monitor major artists and producers to keep tabs on their ‘repertoire requirements’ (Batory, [n.d.]), with information obtained from those all-important contacts. Record companies will also be looking for material at the publishers, meaning that publishers can reach a position where they can influence the activities of well-known artists.
Publishers must use their initiative in exploiting work for example in obtaining cover versions/ licensing foreign translations/ remixes etc. Publishers also seek to revive interest in older, perhaps dormant (in earning terms) works by reworking them in a contemporary style.
In this sector the publishers have a fair amount of creative input, e.g. in the pairing of artist and songwriter or an idea for a new version of an old song. The final release or performance of the work would be regarded as the ‘facilitation’.

Conclusion
A publisher plays many roles at ‘the crossroads of art and commerce’ (Roth, 69) and is vital in the administration of royalty payments for creative works. Although sometimes separate, the business and creative roles can be intertwined and can’t be considered in isolation. A publisher plays the key role in developing talent into earnings, and key skills such as communication (internal and external) are necessary to for both business and creative goals. A publisher must combine a ‘good ear’ and a flair for music with efficient professionalism and business skills in order to earn a good reputation within the industry and with potential songwriters.
Although the Internet and all its possibilities seem to pose a massive threat to the publishing industry, it will continue in some form or other by learning how to use available technologies with positive effect. As technologies evolve, so do businesses – after all look how ‘publishers’ have changed from their original incarnation already.

Appendix

1.) What is Copyright? (from MPA, 2002)
‘Copyright enables composers and authors to be paid for their work. Copyright is the means by which those who make and own creative works (e.g. music and literature) can control who makes use of their work and the circumstances in which it is used, to ensure that the integrity and value of the work is respected.
Copyright legislation has evolved over the last 500 years to provide a balance between the interests of those who invest skills and intellectual effort, time and money in the creation of works on the one hand and those who want to use and enjoy those works on the other.
The current UK copyright legislation is to be found principally in the Copyright, Designs and Patents Act 1988. The current legislation will be amended further in order to accommodate the EU Copyright Directive which is due to be implemented by 22 December 2002’.

2.) ‘Royalty Payments’
Harrison (2000) defines royalty as: ‘A payment made to a songwriter, author or performer by the person or company exploiting the songs, recordings or performances.’
Copyright laws and royalty regulations form the basis of where a publisher’s income is generated.

3.) ‘Logging’ Works:
When a work arrives, it is vital that the publisher immediately makes a record of it. This ‘log’ should include information such as:
*Song name
*Writer name(s)
*Format (e.g. CD/ Cassette/ Manuscript/ Lyrics etc.)
*When it arrived/ was listened to
*Result of ‘auditioning’
The product should also be given a reference number, which should be entered into the publisher’s logbook, as well as printed on the product itself so it can be easily identified in the future.

4.) Examples of Publishing Deals: (From Harrison, 2000)
*The Administration Deal: This type of deal is popular with songwriters with a small but potentially lucrative catalogue of songs. It may not be worth their while to individually join the collection societies and they may not have enough time/ organisation to track down income themselves. This type of deal may also appeal to established songwriters who don’t need a publisher to exploit their songs.
Usually the administrator (i.e. the publisher) isn’t assigned the rights to the songs, but is granted a license for a certain period of time to administer the songs, which includes duties such as registering the songs with the relevant societies, licensing the songs and collecting royalties on behalf of the writer. With such a deal, the writer will usually receive a higher proportion of income than if the publisher was assigned the rights and expected to exploit the song.
*The Sub-publishing Deal:
This is when the owner of the copyrights sub-licenses some or all of these rights to a publisher. It is like a midway point between an administration deal and an exclusive agreement. This may appeal to an established songwriter who wishes to maintain some of their copyrights but still wants the publisher to exploit their work or to a small publishing company that doesn’t have such a large network of affiliates, e.g. overseas. The writer will often get a lower proportion of royalty income than with an exclusive deal in return for continued copyright ownership.

*The Single Song Assignment (SSA)
This is sometimes referred to as a ‘song by song assignment’ or a ‘ specific song assignment’
*The Exclusive Songwriters Agreement (ESA)
This is sometimes referred to as an ‘exclusive publishing agreement’

The SSA and ESA are the direct deals between the publisher and songwriter and are dealt with in more detail in the body of this essay.

5.) Performing Right Society (PRS)
PRS works for composers, lyricists and music publishers to licence the public performance and broadcast of copyright works. Licences are issued depending on the individual business. For example, the licence fee for a radio station depends on factors such as size of listenership, and a licence for a public place such as a shop or a pub depends on the size of the venue. It is a blanket licence, which, once granted, allows the holder to play virtually any piece of music they wish.
Distribution of royalties is based on a variety of methods, including analysis of radio playlists/ random sampling. It is argued that it isn’t a totally fair method, as relatively unknown songs that are only played by DJs in certain clubs or on small radio stations for example, are unaccounted for. This means that the songwriter won’t receive any royalties, while their share is distributed mostly to the pockets of the major publishers.

6.) Mechanical Copyright Protection Society (MCPS) payments:
Mechanical royalties must be paid when music is incorporated into products. This can be anything from CD’s and videos, to mobile phones and musical novelty items. They are paid to songwriters (usually through publishers who take a cut) while the song is still under copyright. The standard MCPS rate is 8.5% of dealer price, or where unavailable, 6.5% of retail price. AIM (the Association of Independent Music) has contested the fairness of how MCPS rates are calculated. The main point of contention was the “AP Systems” used by the MCPS. To produce a record you need an MCPS licence, of which there are 2 main types:

*AP1: This is for major labels and larger independents. With AP1, the MCPS take a 4.5% cut on records sold (i.e. Records printed but not sold don’t count).

*AP2/ 2a: Generally for smaller independent labels. With AP2 or 2a, the MCPS take 12.5% up front, on every record printed.

Although there are reasons for this (e.g. it costs MCPS a relatively large amount to collect the royalties from records produced on a smaller scale), it still puts independent labels at a considerable disadvantage for having to pay for records whether or not they are sold, as well as artists on independent labels who receive less song writing royalties because of the higher cut taken by MCPS.
It was felt that the BPI weren’t doing enough for the interests of those affected, and this led to the formation of AIM.

7.) A Publisher’s Basic Minimum Exploitation Activity (MPA)
Generally speaking, the exploitation of a musical work will involve one or more of the following activities:
*The release of a commercial recording of the work
*The issue of a synchronisation licence in respect of the work
*The publication of the work for sale or hire
*The public performance of the work
*The broadcast of a work