Perhaps the most common career-oriented question that unsigned songwriters ask is, “How can I get my songs published?” Many of these same writers have only a vague notion of what it means to be published. In fact, some musicians who want to be published already are, without knowing it!
If you've already sold recordings of your songs to the public, you are a published songwriter. The federal 1976 Copyright Act defines publication (the act of publishing) as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Phonorecords are defined as “material objects in which sounds … are fixed” and include vinyl records and CDs.
There are a lot more ways to make money from the use of one of your songs, however, than just selling your own recording of it. Other artists may cut, or record, the song. It might be used in a movie, a movie trailer, a TV series, a TV special, a music video, a video game, for commercial advertising, for a ringtone, or for myriad other uses. Promoting, licensing, and getting paid for such song uses is the job of a music publisher.
Many unsigned songwriters would love to hand off business-oriented tasks to a music publisher so they can focus solely on the creative task of writing songs. Unfortunately, the moment you sign on the dotted line with a music publisher, you give away your copyrights and half the revenues the songs covered in the contract will earn (unless you're already so successful that you've got the bargaining power needed to strike a better deal). For these and many other reasons, many songwriters choose to keep all the profits and self-publish their songs.
This article will explain the basics of how to start up and operate your own music-publishing company. Some of the topics I'll discuss are copyright registration and transfer, affiliation with a performing-rights organization (PRO), the inventory needed to execute day-to-day operations, demo production, making industry contacts, song promotion, and preparing the documents needed to license your songs.
In order to keep this article to a manageable length, my focus will be on publishing your own songs. Signing other writers or their individual songs to a publishing company typically requires far greater preparation and funding. Writing underscore (background or theme music for film or TV) and jingles for commercial products or services is also beyond the scope of this article. (When they're written for national accounts, they often present few opportunities for retaining copyright ownership of your work.)
Before I get to the nuts and bolts of becoming a music publisher, however, let's examine both the benefits and drawbacks of doing so. As you're about to see, starting your own music-publishing company is not a decision to be made lightly.
All by Myself?
There are many reasons to self-publish your songs. Keeping 100 percent of the royalties and one-time fees a song earns is just one reason. You also retain greater control over how your songs may be used and what those uses will pay. And assuming that you're highly motivated, nobody will promote your songs more than you. If, on the other hand, you were signed to a large music-publishing company with dozens of writers on staff, your songs might get lost in the crowd and never get the promotion they need to get cut. Furthermore, most song-publishing contracts specify that the music publisher keeps all copyrights to songs covered in the contract — even after the term of the contract expires and regardless of whether or not the company ever secures a cut for your songs.
Still, many songwriters sign with a music publisher for good reasons. It is extremely difficult and very time-consuming to make the required industry contacts with record-label A&R (artist and repertoire) staffers, music producers, recording artists, music supervisors, and film and TV studios — contacts that major publishers already have. Being your own publisher also means taking on the financial onus, which includes demo production and replication, potential attorneys' fees, inventory, postage, phone bills, printing, and more. And while all that money is going out, you've got to find a way to have some coming in to pay your overhead. A songwriter signed to a staff-writer deal with a publisher typically receives a monthly stipend to keep the credit hounds at bay. Even before (or despite never) getting their first cut, the staff writer earns a living doing what they love most — writing songs.
An experienced music publisher might also secure revenue-generating uses of your songs that you might not have thought of on your own, including sheet music, karaoke, video jukeboxes, and musical greeting cards. They probably already have the contacts you lack with print publishers and subpublishers. The latter collect mechanical royalties for record sales and synchronization fees for the use of songs in TV shows and films abroad. (I'll discuss licensing the various uses of songs in more detail in a bit.) Many successful publishers hire influential song pluggers to pitch the songs in their catalog, greatly increasing the chance of getting a cut. And many a fruitful collaboration between songwriters has been facilitated by major publishers having strong networks throughout the creative community.
You might be thinking at this point, “Screw the do-it-yourself approach. Give me the publishing contract.” Unfortunately, it's not that easy. As a highly successful producer and friend recently explained to me, the big publishing companies are interested in signing only songwriters who already have a track record of writing hits. Yet it's “almost impossible” (in his words) to get your first song cut — even if you have high-level industry contacts listening — without an influential publisher or song plugger pitching your song. It's a catch-22.
Despite the sobering realities of independent song plugging, I love the business side of music publishing. I find managing my own music-publishing company to be exciting and self-empowering. But as you'll learn, it's also a lot of work.
An in-depth discussion of the legal requirements and tax consequences of starting your own music-publishing company is beyond the scope of this article, so I'll only briefly summarize them here. As is the case when starting any other business, you should first choose a legal business structure (such as a sole proprietorship or limited liability company) and business name. A sole proprietor may conduct business under its own name or use an assumed or fictitious business name (otherwise known as a “doing business as” name or “dba”). If you want to use an assumed name, check your state's business registry database to see whether it's available or has already been taken by someone else.
You may also need to apply to the Internal Revenue Service for a federal tax identification number (EIN). Go to www.irs.gov/businesses/small/article/0,,id=97872,00.html for a list of circumstances that require an EIN. Also, find out from your state and local agencies what the business-license requirements are for your area. I recommend you consult with a CPA (certified public accountant) for help with all decisions — and their tax consequences — related to starting your new business. State and local governments also offer helpful online resources for do-it-yourselfers.
You'll also need to affiliate your new company — and yourself separately as a songwriter — with a PRO. The PROs operating in the United States are ASCAP (American Society of Composers, Authors and Publishers; ascap.com), BMI (Broadcast Music, Inc.; bmi.com), and SESAC (Society of European Stage Authors & Composers; sesac.com). They collect and disburse to their publisher and songwriter affiliates (or “members” in ASCAP parlance) performance royalties. These are revenues earned from the uses of a song in radio and Internet broadcasts, TV programs and commercials, and movies played in theaters outside the United States. Put another way, PROs are essentially clearinghouses for licensing the performances of a song as opposed to licensing the sale of physical copies or downloads, the synchronization of the song to picture in films and on TV, and other uses. If you don't belong to a PRO, you'll have to individually license, keep track of, and collect payments for performances of your songs everywhere in the world — an impossible task for widely used songs.
ASCAP, BMI, and SESAC all have different requirements for joining and use different payment schedules. You can belong to only one PRO at a time, but you can switch from one to another when your contract with your present PRO is up for renewal. ASCAP and BMI have a much bigger presence in the United States compared with SESAC, a fact that may have a bearing on the size of an affiliate's royalty payments for a hit in this country.
You might also consider joining the Harry Fox Agency (HFA; harryfox.com). The HFA is a licensing clearinghouse and royalty compliance watchdog for the use of your songs in phonorecords and digital services, including downloads and on-demand streaming. The HFA does not issue synchronization and master-use licenses (for film and TV placement), provide sample clearance, or license performance and print (sheet music) rights. It charges an annual membership fee and service commissions per license issued, so many startup companies choose to do their own mechanical and streaming licensing until their level of success justifies the added expense of joining the HFA.
Once your music-publishing company is set up, you'll want to protect all the songs currently in your catalog from potential copyright infringement before making any preexisting demos broadly available for other people to hear. Protecting your songs entails establishing a creation date for each with an unaffiliated third party. One way to do this is to register your songs with the Copyright Office.
Registration forms can be downloaded for free (www.copyright.gov/forms). Use form PA (Performing Arts) for registering sheet music with the Copyright Office. Alternatively, you can use form SR (Sound Recording) to register both an audio recording of the song and the underlying composition — melody, lyrics, and arrangement — at once. The recording needn't be the fully produced version of the song; it only has to clearly convey the music and lyrics in order to protect the underlying song.
When you register your new songs with the Copyright Office, make sure you list your publishing company (not yourself) as the copyright owner, noting in the appropriate section of the registration form “transfer of all rights by the author(s)” as the means by which your company procured copyright ownership from the songwriter(s). By registering your company as the copyright owner, you give it the authority to issue licenses and collect revenues for the song's use by others.
You'll also want to transfer to your publishing company any songs previously copyrighted under your name. You may record this transfer with the Copyright Office, but it's an expensive way to go: currently $95 for one song title and $25 for each additional group of ten songs. The only practical reason to record copyright transfers with the Copyright Office, however, is to protect yourself from conflicting transfers (that is, someone else claiming that the song's copyright was transferred to them and not to you). This is moot if you're the only author of the song, as nobody can register a conflicting transfer unless you gave them your contractual consent to do so.
A valid, no-cost solution for transferring a song written solely by yourself to your publishing company is to draw up a simple document — signed by you and listing the title of the song being transferred — that agrees to the transfer (see the online bonus material “From Me to Me” at emusician.com). You may then freely substitute the name of your publishing company in lieu of your personal name on all copyright notices for the song, such as on CDs and lyric sheets.
More Cost-Saving Strategies
Initial registration of songs with the Copyright Office is fairly expensive. Fees at the time of this writing were $45 for paper filing of PA and SR forms and related materials. Electronic filing will be available soon at $35 per registration.
You can decrease your cost per song by registering multiple songs at once as a collection, paying a single fee for the entire lot. For example, the title of your collection might be “Collection of songs from New York: 1. I Love You Dearly, 2. Baby, Don't Leave, 3. I Hate You for Leaving,” where the collection's title is arbitrary and followed by the titles of each song you want to register. The Copyright Office recently announced its intention to charge a fee of $1 per title for electronic claims and $3 per title for paper claims listing titles of individual works in song collections. This isn't simply price gouging on the part of the Copyright Office; the additional fees help pay for keeping track of individual songs in a collection so that they will show up in a database search. That way, someone won't have to know a song collection's provisional title in order to locate an included song's copyright owner. Current copyright registration fees are listed at www.copyright.gov/docs/fees.html.
MasterWriter (www.masterwriter.com) offers its Web-based Songuard service as an alternative means of protecting your songs at greatly reduced cost. When you buy MasterWriter software, which is an outstanding songwriting application (see the review in the April 2004 issue at emusician.com), you get a free one-year subscription to the Songuard service; the fee for the service is $30 annually after the first year. Songuard registers and stores the date of creation of your song's melody and lyrics on the company's server. That's useful in protecting a song in its development stage. Once the song is published, however, there are important benefits to registering it with the Copyright Office, including the right to be reimbursed for attorneys' fees in a successful copyright-infringement proceeding.
Songs that were previously registered with the Copyright Office when they were unpublished need not be registered again after publication. However, you will need to deposit two complete phonorecords of the published sound recording's “best edition,” along with any phonorecord packaging, with the Copyright Office. (Go to www.copyright.gov/circs/circ07b.pdf for more information.) If this isn't done within three months of publication, you'll be levied a hefty fine. It's a silly, antiquated requirement, but it's the law. Songs available only as Internet downloads are currently exempt from this requirement.
Nuts and Bolts
To run a smooth operation, you'll need to maintain a modest inventory for your company. Obviously, you'll need business letterhead and either custom mailing labels or preprinted mailers that include your company's logo and address. For making copies of your song demos, you'll need blank CDs with printable surfaces and a color printer that can print directly on CDs. The printer will likely come with software you can use to develop a template file for printing song titles and contact information on your CDs and importing your company's logo as a background graphic. Don't use CD labels — if they are applied out-of-round to your CDs, the discs won't play on some players. Buy extra ink tanks or cartridges before you run out. And keep a good supply of slimline CD cases or clamshells on hand for securing your CDs inside mailers.
Print several lyric sheets for each song in your catalog so you'll always have them on hand for urgent mailings. Lyrics should also be stored in electronic form so you can quickly paste them into emails when sending MP3s to industry contacts.
An entire book can be written on the subject of producing demos, so I'll focus only on some of the points you're less likely to read elsewhere. First of all, don't let anyone tell you that production values don't matter and that the song's quality will be heard regardless of your demo's sound and arrangement. A producer or A&R manager might listen to hundreds of demos each day. Which one do you think will grab their attention, the one that sounds like a hit record or the one that has an out-of-tune vocal sung to a lone acoustic guitar recorded with a Radio Shack mic?
Preproduction is of paramount importance. Whenever possible, compose catchy instrumental hooks for your songs before recording them. Make the intro short — no more than 10 seconds if possible. Keep solos to a maximum length of eight bars or cut them out completely. The more deliberate, fast-paced, and powerful your arrangement is, the more the demo will retain the listener's attention and sell the song.
Unless you are Prince, resist the temptation to play all the instruments and sing all the parts on your demos. Having ace union musicians and singers perform on your demos can make them sound like hits. That said, doing so will also likely eliminate those demos from being considered for placement in film and TV projects. In order to use any of the instrumental tracks played by union musicians in a sync-to-picture (film or TV) placement, they must first be upgraded to “phono” status with the American Federation of Musicians (AFM). Phono status essentially makes the demo recordings eligible to be used in new media (film, TV, record release, and so on) as a “new use.” The upgrade from demo to phono status requires that all the musicians on the session be paid master scale, which equals roughly double the demo scale rate you already paid them, and be given pension-fund payments for the entire session. This is required even if you will use the demo recording for only one song recorded during a multisong session.
The production company must convert the demo recording to motion picture use (a new use) at considerable cost. Yet they cannot do so unless and until the demo recording is upgraded to phono status. They will typically insist that you pay for the upgrade. The production company may also ask you to make any required “additional payments” (royalties) to union musicians in connection with the song being licensed, which you should refuse to do.
All this haggling may be moot, however, as many TV placements must be negotiated from soup to nuts during your first phone conversation with the show's producer, in order to meet an imminent airdate. Therefore, most producers feel there is no time to work out AFM arrangements. In most cases, they want a song whose rights are already “cleared.” Similar issues arise with demo singers who belong to SAG (Screen Actors Guild). So if your main thrust as a music publisher will likely be film and TV placements, make sure your demos are either completely performed by yourself or by nonunion musicians and singers whose talents are contracted for in a one-time buyout.
Getting to Know You
After you have a few song demos ready to pitch, it's time to develop a list of contacts who will be willing to listen to them. This is the most difficult aspect of music publishing, as literally tens of thousands of people vie for the attention of the industry's decision makers, who can't possibly communicate with them all.
There's no one way to make industry contacts, but here are some strategies in brief. Enter your best songs in prominent songwriting competitions (see the online bonus material “They're Playing My Song”); a contest win will often give A&R managers and producers incentive to listen to an otherwise unknown writer. Try to perform at one of the songwriter showcases sponsored by your PRO; industry contacts often attend these and may approach you if they are impressed by your performance and writing skills. Attend songwriting conferences at which A&R reps and producers are scheduled to participate. And ask any well-connected friends you might have to introduce you to their contacts. Networking is a must.
Several excellent industry directories are available that list contacts' names, job titles, addresses, and sometimes direct phone numbers (see the sidebar “The Direct Approach”). Make a separate list of the personal contacts you've already made, and update it often. Present this list by any polite means possible to those new contacts you want to make. Everyone wants to hear a writer who is already being listened to by other top dogs in the industry. Your list will grow in rolling-snowball fashion.
Unless you're already extremely well connected, you'll need to subscribe to tip sheets (also known as pitch sheets) that list which artists are currently looking for songs to record for upcoming projects (see the sidebar “Leave a Tip”).
A song typically has to be a hit before it has a shot at being used in a national advertising campaign. The exception is a song that is a “work made for hire,” or one written by an employee of or subcontractor for a production company handling the ad campaign.
To get an unknown song placed in a TV or film project, you need to know what projects are currently in development or production. A list of both domestic and foreign projects can be found at Variety.com. Successful placement is also likely predicated on your living in or near Hollywood, where you can form the necessary relationships with TV and film studios, music supervisors, and the like.
Alternatively, seek out a music publisher who already has film- and TV-industry connections and negotiate a revenue-sharing agreement in return for them placing your songs. Just be sure to limit their entitlements to only those revenues generated from the TV and film placements they successfully negotiate (and possibly any follow-on deal, such as release of a soundtrack album). You don't want them to participate in monies from unrelated record deals you secure on your own. A good directory for finding film- and TV-oriented publishers to collaborate with is the Music Business Registry's Film & Television Music Guide.
Here Comes the Pitch
Once you get permission to pitch a song to a new contact, verify their mailing address. Some record companies (such as Curb Records in Nashville) have several unpublished addresses. You want to make sure you're sending your package to the right office. Also, ask if there is anything you need to write on the outside of your package so it will not be mistakenly discarded as unsolicited material.
Include in your package a CD containing your songs, along with lyric sheets and a very brief cover letter. If applicable, also include a list of songs you've already had cut or which are on hold (reserved for possible recording). Skip the bio — nobody will read it. All materials you submit should include your company's name, phone number, and email address. The CD should also have the titles of the songs printed on it.
Never email an MP3 to an industry contact without their express permission to do so. It'll fill up their email account and hard drive and piss them off.
Unless you have a close personal relationship with a contact, don't follow up your pitches with a phone call or email them asking how they liked the songs. They don't have time to give feedback to the thousands of people pitching songs for each project. They'll call you if they're interested.
Keep a log of your pitches, detailing which songs were sent to whom and for which artists. Date each entry, and make sure you never pitch the same song to the same contact for any one project. Once they reject a song, you don't want to take up their time by pitching it again, unless it's for a different artist or a later album by the same artist.
Can I See Your License?
When you finally get a call from a company wanting to use one of your songs, you'd better have your license forms ready to do business. Prepare all the license forms you expect you might need ahead of time, leaving particulars such as signatory names, song titles, dates, royalties, and fees blank. They'll be filled in following negotiations.
A mechanical license is used to authorize phonorecords of a song to be recorded and distributed. You'll also want to prepare a separate mechanical license for authorizing digital phonorecord delivery (DPD), also known as Internet download. You'll need two different forms of streaming licenses to authorize streaming songs on the Internet: one for fee-based streaming on demand, and the other for promotional streaming such as that used by recording artists on MySpace. A master-use license permits all or some of a demo's recorded tracks to be used in a new recording or placed in a film or on TV. You'll also need to prepare separate synchronization licenses (permitting the song to be synchronized to picture) for placements in film, TV, and commercial advertisements. Additional licenses include those for use of your songs in video games and ringtones.
You could have a music-business attorney draw up these documents for you, but it'll likely cost you thousands of dollars, especially if license terms need to be tweaked during negotiations. A good entertainment lawyer typically charges between $150 and $750 per hour. Anyone can learn to understand and write the legalese required to fashion their own licenses, however, by studying the right books. (See the sidebar “A Good Education” for my recommendations on required reading for do-it-yourself music publishers.)
Once one of your songs is recorded, you'll need to register it with your PRO. If you don't, they won't know who to pay performance royalties to when the song title appears in their sample surveys of radio broadcasts and the like. Go to the PRO's Web site to download the proper registration form.
Music publishing is a very complex subject, and space permits only a brief overview here. Also keep in mind that I am not an entertainment lawyer. You should view this article as a beginner's guide to do-it-yourself music publishing and not as advice for handling complex legal matters.
That said, this isn't rocket science. But it is a ton of work. It can also be discouraging at times. A startup music-publishing company must be prepared to receive hundreds or thousands of rejections during the first years of operation before it has any notable success. If you're up to the challenge, hopefully this article has given you solid footing for the hard climb ahead.
EM contributing editor Michael Cooper is the owner of Michael Cooper Music. Visit him atwww.myspace.com/michaelcooperrecording.
Leave a Tip
Tip sheets are an essential, subscriber-based service for music publishers. As a publisher of country music, I only know of tip sheets for this genre of music. Here are the two best, both of which include the label, artist, producer(s), contact person(s), and recording schedule for each project:
Pitch This Country Music Tip Sheet, Pitch This Music (www.pitchthismusic.com). This is the most comprehensive listing of current projects for major-label and second-tier (prominent indie and joint-venture) companies. Published monthly, this tip sheet is generated by successful, Nashville-based song pluggers and often includes difficult-to-obtain details on what specific types of material are being sought for each project listed (for example, “Soulful, real-life lyrics with range and attitude”).
Row Fax, Music Row (www.musicrow.com). Row Fax is published weekly and contains solicitations for songs by major, second-tier, and small independent labels; unsigned artists; music publishers; and TV and film music supervisors and producers. The main thrust is country music pitches to labels, but solicitations for other genres of music, songs for demo projects, and performance-oriented opportunities are also occasionally listed. Subscribers also gain access to Music Row's outstanding online industry-news service and directory and are emailed weekly the company's valuable Week-At-A-Glance. Week-At-A-Glance includes links to audio clips of current and next week's releases of country music singles and lists of upcoming CD releases, Nashville-based industry events, and upcoming artists' appearances on syndicated and pay TV (for instance, HBO).
The Direct Approach
Industry directories are a must-have for music publishers. While they do not guarantee successful relationships with important industry decision makers, they do provide you with the information you need to make that first contact. The following list provides the name of each directory, its publisher, the publisher's Web site, and, where applicable, notes of interest.
A&R Registry, the Music Business Registry (www.musicregistry.com). A comprehensive international directory of A&R staff and company executives for major and independent record labels. It also includes a useful list of music conferences and conventions.
Music Attorney, Legal & Business Affairs Registry, the Music Business Registry. A comprehensive international directory for contacts working in entertainment law.
Film & Television Music Guide, the Music Business Registry. An international directory of record labels, music publishers, film and television music departments and trailer houses, music supervisors, music placement and video game companies, composers, composer agents, orchestras, music editors, score mixers, music-clearance departments, and more.
In Charge, Music Row (www.musicrow.com). This is the most comprehensive and up-to-date directory for the country music industry I've seen. Subscribers to the company's excellent Row Fax tip sheet also gain access to Music Row's expanded online directory.
Pitch This Music Directory, Pitch This Music (www.pitchthismusic.com). While this is a very limited directory for the Nashville area, it contains some exclusive, invaluable listings I've not seen elsewhere.
Producer & Engineer Directory, the Music Business Registry. Contains thousands of domestic and foreign listings for producers, engineers, and their agents.
Music Publishers Registry, the Music Business Registry. Do-it-yourself music publishers will find this international directory helpful in locating publishers for subpublishing and administrative deals. An administrative publishing deal is essentially one where a larger company handles royalty collections and disbursements, and sometimes licensing and promotion, for a smaller company such as your own.
A Good Education
To be successful, a music publisher must be thoroughly educated about the complexities of the music business. Here are three books I recommend:
All You Need to Know About the Music Business, 6th ed., by Donald S. Passman (Free Press, 2003). This is a must-read for music publishers, especially those who are also performing musicians or aspiring recording artists.
Music, Money, and Success, 5th ed., by Jeffrey Brabec and Todd Brabec (Schirmer Trade Books, 2006). Reviewed in the November 2007 issue of EM, this is the most comprehensive reference book for music publishers and other industry professionals I've read to date. The last chapter contains five sample contracts.
This Business of Music, 9th ed., by M. William Krasilovsky and Sydney Shemel (Billboard Books, 2003). Considered by some to be “old school” and short on dollars-and-sense advice, this book nevertheless includes excellent chapters on copyright law.