Chapter 21

Ten Common Song-Related Contracts You Should Know

In This Chapter

Taking a look at some of the most common contracts

Tackling licenses and agreements

While the right side of your brain is engaged in the creative pursuit of writing a song, challenge the left side and make sure it understands your legal rights and responsibilities. This will ensure that eventually the fruits of your labor will be served properly and you’ll find some peace of mind.

In this chapter, we highlight some of the most common and vitally important contracts that are related to the business side of songwriting. Think of these contracts as your friends. They ensure that you and your hard work will be duly rewarded, your song protected, and the proceeds end up at the correct address — yours of course!

Single-Song Agreement

This agreement is used by music publishers to acquire songs from a songwriter on a song-by-song basis. A copyright assignment of the songs from the songwriter to the music publisher is always attached to this agreement or is included in the verbiage of the actual agreement. Publishers often use this agreement to develop a relationship with a writer before offering an exclusive agreement to that writer.

Exclusive Songwriting Agreement (ESA)

This agreement is used by music publishers to acquire all songs written by a songwriter over a period of time (for example, for a period of three years or for a period equal to the term of an exclusive artist agreement if the songwriter is also signed to an artist deal with a record label). Because you cannot assign an interest in property not yet created, a publisher will either issue individual assignments or songwriter agreements that parallel the terms of the ESA, after the songs are written and turned into the publisher. There may also be a Schedule A attached to the ESA whereby the publisher wants to acquire some or all of the songs of a songwriter that were written prior to the term of the ESA. Each of those songs would be listed on the Schedule A.

Copyright Assignment

This document is usually a one- or two-page document that contains the formal wording for an assignment of copyright in a composition from the songwriter to the music publisher. Most publishers require that these assignments be notarized by a notary public to confirm that the person executing the assignment is actually the songwriter named on the document.

Co-Publishing Agreement

This agreement is similar to a Single-Song Agreement (for an individual song) or an Exclusive Songwriting Agreement (for songs written over a period of time), except that the songwriter retains for himself a portion of the publisher’s interest in the song (for example, 50 percent of the publisher’s interest so that the songwriter retains 100 percent of the songwriter’s portion of the songs and 50 percent of the music publisher’s portion of the song).

Administration Agreement

This document is an agreement for a third party to administer the rights to a certain number of songs in a given country or territory. This agreement is usually executed by the music publisher or by a songwriter who has formed his or her own publishing company and needs someone to issue licenses (mechanical, sync, print, and so on) on their behalf and to collect the income generated by those licenses. This agreement usually covers administration only and does not include the active pitching of songs. Many music publishers use the Harry Fox Agency for the administration of their catalogs in the United States.

Sub-Publishing Agreement

This agreement is similar to an Administration Agreement except that this agreement is usually made between a publisher and another publisher outside of the United States (the sub-publisher). The sub-publisher is usually involved in the active pitching of the domestic publisher’s songs and takes a greater share of the income from those songs if the sub-publisher secures a cover recording of that song in its home territory.

Performing Rights Society Affiliation Agreement

Before a songwriter or music publisher can collect performance royalties for the performance of a song (via airplay of the music by radio stations and performance of music in public venues), the songwriter and music publisher must execute an agreement with one of the performing rights societies (ASCAP, BMI, or SESAC) for that organization to administer the “performance” rights in those songs. Those societies issue licenses to all major radio stations and major clubs and venues, and collect substantial revenue from those licenses. The performing rights organizations (PROs) pay the songwriter and music publisher directly (usually on a 50/50 basis) for any performance income collected. This direct payment usually ensures that a music publisher cannot collect the songwriter’s share of performance income to recoup any outstanding advances paid to the songwriter by the music publisher.

Mechanical License

This agreement is usually a short form document whereby a music publisher grants to a record label the right to record, manufacture, and distribute records embodying a specific song.

Synchronization License

This agreement is usually a short form document whereby a music publisher grants to a movie or television producer the right to sync music to visual images and to either broadcast that video or manufacture and distribute the video in videocassette or DVD format. Most producers of video content will attempt to secure rights for both broadcast and home video; however, most music publishers will want to retain home video rights so that they may negotiate a better fee if the television show or movie is commercially successful. This license does not cover the use of the sound recording because the producer of the video work must also negotiate and secure a license with the copyright holder of the master recording.

Digital Licenses

Most licenses for content to be distributed via a digital medium (such as the Internet) are a combination of the mechanical, synchronization, and print licenses, depending upon whether the material will be merely broadcast or a digital copy of the song will be actually delivered to an end user. This area of rights management is still basically in its infancy and continues to develop as new means of digital distribution and expression are introduced to the marketplace.