Expert: Terrance Copley - 9/14/2007

Question
Terrance Copley,

I have a university assignment regarding music publishing and licencing. with your extensive involvement in the music industry i was hoping you could provide me with some information or link me to any informative websites that I could read up on to help me learn and write my assignment.

My question is as stated:

Max signs a worldwide publishing agreement with Principal Music. The term of the agreement is 5 years with a 10 year retention period. Max is a singer/songwriter and has a 5-album recording agreement with Megabyte Records.
(1)List and describe 4 ways that Principal music would be hoping to "exploit" Max's Music.

I have other questions regarding how the term and retention period operates and Mechanical royalties calculations.

Also, I am a singer/songwriter. I am currently recording my debut E.P and play frequent gigs in Melbourne, Australia. Do you have any tips on how I can get my music out there and heard to hopefully lead me to a record or publishing deal?
If you can be of any help it would be hugely appreciated.

thank you for your time.

Answer
Hi Erin and thanks for asking a great question that lots of active musicians don't really get into or understand. All of you answers are here you just gonna have to keep reading...but its worth it.

Answer # 1 ( publisher promotes max's music )
here are the ways :
the music publisher can send the score sheet with lyrics and the CD itself to toy manufacturers, background music companies,ad agencies,tv production companies,movie production companies,home video production compainies,foreign mechanical rights agencies,internet production companies,foreign sub publishers,harry fox agency ( here in america, they sell your song to record labels for their artists to record = $$$$$$)and as just mentioned, to record companies.over all, the publisher represents the writer.No matter how the publisher acquires its rights, the writer has to be assured
that the publisher will be active and not just be in the business of building up
a catalogue as a business asset.
There is an obvious commercial incentive for a publisher to be active
when an advance has been paid, but that is no guarantee. Better to have some
objective yardsticks by which to measure the publisher’s performance.
Most publishing agreements now contain clauses giving the writer the
right to retrieve the copyright in any works the publisher does not exploit.For
example, if a particular work has not appeared on a record, been broadcast or
synchronised into a film soundtrack, within (say) two years, then the writer
can get the work re-assigned. Note that it is not sufficient that such a clause
says that the work can be retrieved if it is not ‘published’ within a certain
period.

WARNING !!!!! HERE IS MY LONG WINDED ANSWER !!!!!


ASSIGNMENTS AND LICENCES
All publishing contracts involve the writer handing ownership (or at least
control) of the song over to a publisher. Whether the deal is based on
assignment of copyright or merely a licence, the underlying principle remains
the same. The publisher must have the rights necessary to permit and
encourage it to exploit and protect the work.
The publisher will always prefer to have an assignment of the copyright
because this is the most absolute transfer of rights. When you assign rights
you are transferring them. The assignment will usually be for a limited period
but, during the period of the assignment, the rights that you have assigned are
no longer yours.
In contrast, when you license rights, they remain your property; you are
merely formally permitting another party to use some of those rights. That
permission can either be on an exclusive or a non-exclusive basis.
Both assignments and licences can be limited in all sorts of ways. Both
can be limited as to duration, territory, the rights granted and so on.
Importantly, both can be terminated in similar ways and the effect of
termination can be identical. In other words, both assignment and licence
deals can provide similar levels of protection for each party. The answer lies
in the detail of the drafting.
many of the most important clauses in
publishing contracts were discussed in the
previous chapter. however, there are a few
other matters that you must take into
account.
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At the bottom of the assignment/licence debate:
1. The publisher wants an assignment because, if it has to sue someone
for infringement, it has to establish a chain of copyright to the owner.
If it is itself the owner, that chain is rather short! The assignment
gives the publisher the ability to protect the work in its own name,
whereas if the publisher is an exclusive licensee, it must join the
writer (who would normally be the owner, unless the writer has
interposed a company which owns the works) as a party to the
proceedings in order to establish that chain of title.
2. The writer wants a licence because of the security of knowing that the
writer still owns the work, even if he or she does not absolutely
control it. It means that in the event of a breach of the terms of the
agreement by the publisher, it is easier to argue that a mere licence
has been revoked, as it does not involve transferring ownership of the
rights. It is merely a matter of withdrawing a privilege.
More important than the question ‘Is it a licence or an assignment?’ are the
following questions.
•
As a songwriter, how long will you be tied to this publisher?
•
How long will your work be tied to this publisher?
•
What do you expect your publisher to achieve?
•
What would your publisher expect of you?
•
What controls will you maintain over your work and reputation?
•
What income will you earn from your work?
•
If the publisher should breach its obligations to you, how will you get
back full control of your works?
PUBLISHER’S OBLIGATION TO EXPLOIT
No matter how the publisher acquires its rights, the writer has to be assured
that the publisher will be active and not just be in the business of building up
a catalogue as a business asset.
There is an obvious commercial incentive for a publisher to be active
when an advance has been paid, but that is no guarantee. Better to have some
objective yardsticks by which to measure the publisher’s performance.
Most publishing agreements now contain clauses giving the writer the
right to retrieve the copyright in any works the publisher does not exploit.For
example, if a particular work has not appeared on a record, been broadcast or
synchronised into a film soundtrack, within (say) two years, then the writer
can get the work re-assigned. Note that it is not sufficient that such a clause
says that the work can be retrieved if it is not ‘published’ within a certain
period. That is too low a performance criterion. It could mean merelyreleasing a cheap print version of the work. Instead, such a clause should
specify types of exploitation that will earn income such as obtaining a
synchronisation or a cover.
(For more on re-assignment, see the end of this chapter.)
ROYALTY SPLITS
GENERAL
These days, no matter how inexperienced you are, you should never sign a
single-song assignment for less than 60/40 of mechanical, public
performance and sundry income. Publishers who ask for the old style 50/50
are not meeting the general market rate. There are always a few of these
operators working the market, promising the world and delivering very little.
Avoid them and their 50/50 deals.
The most normal rates are 70/30 to 75/25. The absolute maximum rate is
80/20, unless you are in superstar-writer class. Above 80/20, you cannot
expect the publisher to do much for you because the margin just isn’t there
(unless, of course, your works are generating huge amounts of money). All
the publisher will do is administer the catalogue, collect income and account.
SYNCHRONISATIONS AND COVERS
The royalty rate for income from covers may, in some deals, be lower than the
basic royalty rate for mechanical, public performance and sundry income.
The cover rate paid to the writer for these forms of exploitation is commonly
10 to 20 less than the basic royalty rate (e.g. the basic rate may be 70/30,
but on covers, 60/40). Some publishers also reduce the rate on
synchronisation licences (e.g. licensing the work for use in a film sound track
or a television commercial.
There are several theories (or, as some would put it, justifications) for this
difference between the two rates. One theory is that the reduction is an
additional reward to publishers who go to the trouble and expense of looking
for covers and opportunities for synchronisation licences.
The cynical theory is that publishers will be more inclined to work a song
from which they are going to get a bigger percentage of the gross. The theory
goes that, if a publisher has a choice between pitching a song from which it
will earn 10
nd a song from which it will earn 40, it will pitch the one
with the better margin. Right? Well, maybe. Publishing is rarely that simple or
predictable. Publishers would prefer all their hits were on 60/40, but the fact
is, a hit is a hit and any publisher will be grateful for a hit, even at 90/10. In
most cases, the people in the publishing company who are pitching the song
may not even know the comparative royalty rates and probably wouldn’t care,
even if they did know.
o avoid this problem your lawyer will usually negotiate a different split
depending on whether it is the publisher or the writer that secures the cover
or synchronisation.
All this is perhaps somewhat theoretical if you only have a single song
assignment (unless it is a real zinger of a song, with hit written all over it)
because the publisher is not very likely to go out looking for synchronisations
and covers for an orphan song. It is more likely to try and get these
exploitations for its longer-term writers.
SHEET MUSIC INCOME
The writer’s share of sheet music income is usually based on a royalty between
10
nd 15 (commonly 12.5) of the retail selling price of sold copies. (In
the United States this royalty is calculated in cents rather than percentages: five
cents to seven cents per copy is common unless the writer has negotiating clout.)
In Australia, the rates paid for sheet music and for folios is the same. (In
the United States, sheet royalties are calculated on retail and folio income is
often calculated on wholesale.)
Where a composition is included in a folio, the royalty is reduced in
proportion to the total number of works in the folio (this calculation is
usually referred to a being pro rated). So, if you are on a royalty of 10 of the
retail selling price and there are 20 works in the book of which one work is
yours, for every $100 of net sales you will get $10 ÷ 20 = 50 cents.
It is important that the contract specifies that the pro-rating takes into
account only works that are still in copyright (which can include new
arrangements of traditional works), otherwise your earnings will be reduced
by the inclusion of those works on which the publisher is not paying any
royalties anyway. The larger the denominator in the fraction, the smaller each
share will be,so it makes sense for the writer to exclude all non-copyright works.
PUBLIC PERFORMANCE AND COMMUNICATION
INCOME
All writers should join the Australian Performing Right Association (APRA).
APRA pays a minimum of 50 (the writer’s share) of the income it collects,
direct to its member writers and the balance to the relevant publisher. If there
is more than one writer (i.e. the copyright is split between several writers),
APRA will divide it in the proportions as notified by the writers or their
publishers.
If the writer should by chance not be an APRA member, APRA will still
only pay 50 to the publisher. The writer can then claim the writer’s share
from APRA in the usual way by joining it,or one of its affiliates.If no publisher
is involved with a particular work, 100 will be paid directly to the writer.
Most publishing agreements provide for the publisher to pay through a
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proportion of the publisher’s share to the writer. This is usually the difference
between the standard writer’s share (50) of APRA fees, and the percentage
payable to the writer (under the contract) of the publisher’s income from
other sources. For example, if the usual split is 75/25 under the contract, then
on public performance income, the writer should receive 50 of the
publisher’s share (i.e. 25 of the total paid out by APRA for the particular
song) in addition to the 50 paid directly as the writer’s share.
There is an alternative method sometimes used: APRA is advised that the
writer’s share is (say) 75, so APRA pays 75 of performance fees directly to
the writer. This method disadvantages the publisher because, if the writer is
unrecouped, recoupment will be even slower since the publisher cannot treat
50 of the publisher’s share as part of the writer’s royalty and apply it
towards recoupment.
Let’s apply this to a simple example: Assume that APRA collects $100.
Unless the publishing agreement specifies that the full $75 be paid to the
writer, APRA will pay $50 to the writer and $50 to the publisher. Out of its
share, the publisher will pay or credit the writer, $25. The writer gets $75 and
the publisher ends up with $25.
OVERSEAS INCOME
THE SUB-PUBLISHER’S COMMISSION
The division of overseas income is always detailed in the publishing
agreement and you must take particular care to make sure that you are getting
your fair share.
Sub-publishers are third-party publishers who are licensed by your
publisher to administer and exploit your works in that sub-publisher’s
‘territory’. As the sub-publisher is working in its own backyard, the theory is
that it will better know its local industry and will therefore more effectively
exploit your works. The territory may be one country or several. The licence
may also allow the sub-publisher to appoint sub-publishers (sub-sub-
publishers) or it may administer the whole territory itself.Sub-sub-publishers
are not desirable, as they are just another party taking a percentage of the fees
before you get them.
All sub-publishers charge a commission for administering your
copyrights. That is, after all, how they make their money. The commission is
usually between 10
nd 15 of the total royalty income collected by that
sub-publisher (the gross), depending on the terms of the sub-licence. If the
sub-publisher makes a special effort to procure a cover of your song, it will
usually expect a greater commission in return for its additional work.
The commission on covers usually increases to about 20 of the gross,
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but can be as much as 50 in really exceptional circumstances. This greater
commission is a reward for or an incentive to the sub-publisher to obtain a
cover of your song.
NET RECEIPTS V. AT SOURCE
Great care must be taken in working out the basis upon which overseas
income will be divided between the writer and the writer’s publisher. There
are two basic methods: “net receipts” and “at source”.
NET RECEIPTS
In essence, net receipts deals work on the basis that your royalty is calculated
as a percentage of the money actually received by your publisher in Australia.
The term ‘receipts’ should, of course, include any royalty credits that the
publisher might earn. The net receipts figure, at least in the case of royalties
earned outside Australia, is reached after deduction of the sub-publisher’s
commission from the total amount of income earned in its territory.
For example, say your song earns mechanical royalties of US$100 in the
United States. Your publisher has a sub-publisher in the United States and
given it the right to collect royalties on your songs and retain commission of
10 of the gross in its territory.
The sub-publisher will retain US$10, deduct any withholding tax
required under United States’ law (say, another 10 of the original US$100)
and remit the balance to your publisher.
US$
Gross earned in United States
100
less withholding tax @10
10
less sub-publisher’s commission
10
Net receipts in Australia
80
To calculate your royalty your publisher will multiply the net receipts by the
percentage in the publishing agreement, after converting the net receipts to
Australian currency. Conversion will increase or decrease the total, depending
on the exchange rate. Let’s assume US$80 equals $A160. On a 75/25 deal, your
royalty account will be credited with $A120.
Most publishers prefer to work on a net receipts basis. They are usually
unwilling to work on an at source basis though, in the final analysis, a
comparable result can be achieved for both parties provided the writer’s
royalty is calculated at a rate which gives the publisher sufficient margin to
allow for the sub-publisher’s commission on the gross earnings. In effect, the
royalty rate has to be set at a low enough rate to leave the publisher with
sufficient margin for both it, and its sub-publisher, to make a reasonable
commission.As an alternative, the sub-publisher’s commission can be capped
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to a set percentage. This way, no matter what the sub-publisher actually
retains under its deal with your publisher (as they could always agree between
themselves to vary the sub-publisher’s commission), your net receipts will be
worked out using the capped rate.
Net receipts deals are simple enough, but the system fell into disrepute
some time ago when some publishers abused it. The scam went like this
(slightly exaggerated, to highlight the trick): The (say) United States publisher
obtained world rights; it sub-licensed its Canadian affiliate which in turn sub-
licensed its English affiliate, which sub-licensed its French affiliate; which
sub-licensed its German affiliate; which sub-licensed the Swedish affiliate...
All of them worked on a net receipts basis and each of them could retain (say)
15 of those receipts as its commission. You don’t have to be very bright to
work out that, by the time the royalties from Sweden have gone through the
chain, they will have been whittled away to almost nothing.
To avoid this, make sure that the contract specifies that only one bite can
be taken out of the overseas income before it is remitted to Australia,
irrespective of the number of hands that it passes through. Fortunately, most
publishers need to make a profit in their own home territories, and it is not
in their interests to do the old ‘sub-publisher run around’ (quite apart from
the horrible publicity this kind of sharp practice would generate, if done
today). That said, it certainly pays to ask how things are done by each
particular publisher. If your publisher is accounted to at source by its sub-
publishers, then the receipts in Australia will be the gross royalties generated
in the sub-publisher’s territory, less only the sub-publisher’s administration
charges and any taxes. After that, it is only a matter of limiting the permitted
sub-publisher’s commission so that you can be assured that the royalty return
will be fair to you.
The alternative method is to calculate income at source.
AT SOURCE
If your overseas income is calculated at source, it means that your percentage
is based on the gross receipts in the overseas territory, only allowing
specifically nominated deductions (e.g.withholding or other taxes the foreign
government might apply).
True at source accounting provides for your royalty to be calculated on
virtually 100 of the gross generated in the sub-publisher’s territory and
disregards the sub-publisher’s percentage. To maintain the dollar value of the
royalty your publisher will have to pay you, the royalty rate in your publishing
contract has to be adjusted, e.g. assuming the sub-publisher is retaining 10
of the gross in its territory, a 75/25 net receipts deal is about the same as a
67/33 at source deal.
Using the same assumptions as were used above and assuming the
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definition of at source allows deduction of local taxes:
US$
Gross earned in United States
100
less withholding tax @10
10
at source
90
To calculate your royalty, your publisher will multiply the at source amount
by the percentage in the publishing agreement, after converting the amount
to Australian currency. Let’s assume US$90 equals $A180. Then the
calculation would be $A180 x 75  = $135. As you can immediately see, it is
better than a receipts deal.
The advantage of at source accounting is that you know what deductions
your publisher may apply before the division of income is made. With a net
receipts deal (unless the clauses are properly negotiated), you may have less
knowledge of, or control over, any amounts which will be deducted before the
money gets back to Australia.
Not many writers have the negotiating strength to demand a pure at
source deal. All publishers resist it and most simply refuse it.
But beware! There is a surprising number of publishing agreements
around which use the phrase “at source” but actually mean no such thing.
These agreements use a definition of at source that changes the usual
meaning of the phrase so that it actually means net receipts! It is just a ruse to
catch the poorly advised writer who,seeing the magic phrase,assumes that he or
she has the optimum protection.It is a feel-good-now,feel-awful-later definition.
MECHANICAL ROYALTY REDUCTIONS IN
THE UNITED STATES AND CANADA
Controlled compositions and reduced mechanical copyright royalty rates are
dealt with in detail in Chapter 23, Record Royalties, so we will deal with them
only briefly here. They are relevant to performer-songwriters because they
reduce the mechanical royalties that can be earned in the territories where the
clauses apply. If you are a performer-songwriter with publishing and
recording contracts, these clauses will affect both you and your publisher. In
some publishing agreements, the publishers try to get themselves a more
favourable commission rate on mechanical royalties earned in countries
where controlled composition clauses apply.
The custom in the United States and Canada is that record companies
demand special conditions on the way mechanical royalties will be paid on
records which contain works written or otherwise controlled by that artist
(controlled compositions). These are generally defined as being works owned
or controlled by the recording artist. Some record companies try to expand
the definition to include songs the recording artist does not own or control.
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Works already assigned to a publisher (including those not yet written, but
which must be assigned as they are created) should never be treated as
controlled compositions.Your lawyer should try to knock these expansions out.
Why do artists agree to these terms? Because they have a choice: do the
deal that way, or not do a deal at all. Mega stars might (emphasise might) get
to negotiate minimum concessions, but for everyone else, the terms are non-
negotiable in the sense that you will never get rid of them completely.
Essentially,they affect the otherwise applicable mechanical copyright rate by:
•
limiting the royalty to only three-quarters of the otherwise applicable
statutory rate;
•
paying on no more than 10 tracks (even if the album has, say, 12
tracks). A similar cap is often applied to singles, etc.
•
paying no royalties on ‘free goods’ (the term is usually widely
defined).
As far as anyone can tell, all Australian artists who have had releases in the
United States have had to suffer this diminished rate and there is nothing to
make anyone think that situation will change (but that’s no reason not to
negotiate hard, to get the best deal you can!).
There is a rationale for the provisions (as you will see in the detailed
study), but they have too often been abused and blatantly used as a way of
reducing the record companies’ royalty expenses. They argue that they
shouldn’t have to be paying their own recording artists to record their own
material, though they (conveniently) overlook the fact that recording music
and writing it are different skills AND DIFFERENT RIGHTS and are properly
the subject of separate remuneration. If a corporate analogy may be drawn, if
a company makes both compact discs and CD players, no-one suggests that if
you buy the company’s hardware, you get a 50 reduction on their discs.
(Perhaps it should be suggested!)
No matter how good your lawyer is, on sales of your record in the United
States and Canada you will suffer a reduction in mechanical royalties payable
in respect of controlled compositions. Your lawyer’s knowledge and ability
will be important, however, in limiting the scope of the definition in your
particular record contract.
(For further discussion of controlled composition clauses and
mechanical royalty caps, see the last section of Chapter 23, Record Royalties.)
GST
Publishing income is subject to the Goods and Services Tax. As this tax is
designed to be an ‘end-user’ tax, publishing contracts must make it clear that
any GST payable in respect of the writer’s royalty, will be actually paid by the
publisher. Various publishers adopt different procedures but essentially they
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should all be variants on the following process.
•
The royalty payable is calculated in the normal way.
•
Then the GST payable on that amount is calculated.
•
If the composer is registered for GST purposes, he or she will be
advised by the publisher of the royalty payable and the amount of any
associated GST.
•
The composer then invoices the publisher for the royalty plus the
GST payable.
•
On receipt, the composer pays the GST with the publisher’s money
(or has the publisher pay it on his or her behalf).
•
The publisher then claims the GST payment as an input credit and
off-sets the amount against any other tax that it would otherwise
have to pay.
If the composer is not registered for GST purposes, he or she will not have a
tax liability in respect of the royalty. The composer doesn’t invoice the
publisher for the GST payable. None is payable. That’s the theory but you
only have a choice of registering or not if your income is under the $50000
threshold. Given that everyone wants to earn more than that (and the
publisher funds the GST payment), why wouldn’t you register for GST and
set yourself up on the basis that you are going to be successful?
ACCOUNTING
Publishers account to their writers on a six-monthly basis. The accounting
periods traditionally run from 1 January to 30 June and 1 July to 31
December. This does not mean that you will get your cheque on 30 June and
31 December. These are the close-off dates for the accounts. You will actually
receive the royalty statement between 60 and 90 days after the close-off date.
This gives the publisher’s accounts department a chance to make all the
necessary calculations and prepare all of the individual statements for its writers.
The publisher has an absolute obligation to account to the writer. Many
a writer has terminated a publishing agreement for a breach of this
fundamental duty. Failing to account can be grounds for immediate
termination of the contract, depending on the terms of the contract. The
reality is, though, that termination is not usually the most appropriate
response unless the writer already wants to be out of the contract for other
reasons. Often, the writer is quite happy with the publisher in all other
respects: the writer just wants the royalties. Immediately.
The accounting clause can limit your right to challenge the accounting
statement and your right to commence action in respect of that statement.
Most contracts state that, if you wish to make any objection to a statement,
you must do so within (say) two years of receiving it and must commence any
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legal proceedings within three years. The justification given by publishers is
that they have to be able to rule their books off at some stage, send them out
to storage and eventually destroy them. They argue that it is reasonable to
force a writer to verify the accounts promptly and make any complaints
without undue delay.
There is truth in this, but two points should be borne in mind:
1. The limitation forces successful writers to audit their publisher more
often than would otherwise be necessary. This is inconvenient and
expensive for both parties and therefore it should be in the interests
of both to extend the limitation period to three or even five years.
2. The limitation can operate very unfairly. For example, mistakes,
defaults or frauds may have gone on for years (and across many
accountings) without being detected. It would be a brave (or
foolhardy) publisher who, in such circumstances, refused the writer’s
auditors access to the earlier figures on the ground of this contractual
limitation. The publisher always has a duty to account honestly and
accurately for money that does not rightfully belong to it and it is
unlikely that Australian courts will let such a limitation clause
operate unjustly.
CREATIVE CONTROL
All writer agreements have clauses giving the publisher some right to alter the
works, add new lyrics, translate them into other languages, license them for
others to use and so on. The publishers quite correctly say that these are rights
they need, to maximise the financial potential of the work. The writers also
correctly state that their professional reputation is inherently intertwined
with their work and that some alterations and uses can detrimentally affect
their professional reputation.
Almost all publishers in Australia will agree to include clauses protecting
the works’ integrity, but you have to ask for them. As usual, how readily (and
to what extent) these requests will be met will be influenced by your
bargaining power. Most publishers, as a matter of course, consult their writers
before varying a work or authorising new words or music to be written.
Perhaps the most contentious of these creative controls is the right to
license the work for synchronisation, both with film and television programs
and into commercials. Most publishers resist giving the writer absolute
control over the licensing of their works. They argue that this is really the
publisher’s role in the relationship and it is in the publisher’s interest,as much
as the writer’s, to ensure that the licensing is done in such a way as to protect
the integrity (and therefore the value) of the work.
On the other hand, the writers ask,‘where did all those terrible films and
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television programs get their music from if publishers were looking after the
greater interests of their writers?’
In practice, it is very rare that a writer refuses permission for a
synchronisation licence. Why would you? Synchronisation income is an
important part of a writer’s income flow. The common exceptions are
commercials and X-rated movies. This all becomes very idiosyncratic,
because no two writers will have the same attitudes to, and standards in, these
matters.For some,the use of their song in a beer commercial is acceptable but
a cigarette advertisement is not. For others it’s sex, violence, politics and who
knows what. One publisher was approached for permission to use a song in a
commercial for sliced bread. When the composer was asked if he consented,
after much turmoil, he eventually refused. He could not stand the thought of
waking up every morning and hearing his favourite composition being used
to sell sliced bread. No logic, and it cost him the average Australian wage, but
it was important to him. What is more, his publisher understood and
accepted his decision. That is one terrific publisher.
All reasonable publishers are prepared to give the writer certain power of
control over these uses. The degree of control depends very much on the trust
that the writer has for the publisher and the respect that the publisher has for
the writer.
WRITER’S WARRANTIES
All publishing contracts have a section in which the writer has to promise the
publisher that a whole array of things are true. They may seem to have little
in common, but the thread running through them all is that they are all
fundamental to the publisher’s authority and ability to exploit and protect
the work.
Most warranty clauses make the writer promise that:
•
each of the compositions will be original and not infringe the
copyright in any other work and is not to be obscene nor defamatory;
•
the writer has the right and power to enter the agreement and to
grant the publisher the rights granted in the agreement;
•
the writer will indemnify the publisher against all losses it may suffer
as a result of any breach of the agreement or the warranties; and
•
the writer will assist the publisher in various ways in any actions or
proceedings which may be necessary for it to secure, establish or
enforce the rights in the work.
As you can see, in principle they are commercially necessary. Your lawyer will
make sure that the clauses do not expose you to unreasonable risk.
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PUBLISHER WARRANTIES
Contracts drafted by publishers rarely put much of a burden on them. This is
understandable because the publisher’s lawyers drafted the contract.
It is reasonable to expect the publisher to promise to try to exploit your
compositions, collect all income arising from the exploitation of the
compositions and to protect them.
They can’t promise to get covers and synchronisations but they can
promise to try. On the other hand, the collection of income and the
protection of the copyrights is a fundamental obligation.
REVERSION OF COPYRIGHT
Reversion of copyright is relevant to the Term and Retention Period of the
contract. As already noted, contracts that transfer the copyright in a work to
a publisher for the duration of copyright, have (largely) been relegated to the
scrapbooks as an unfortunate historical anomaly. Mind you, sell enough
songs and you’ll get rich even in a 50/50 deal. It will take a lot longer though.
As a general rule, don’t do them.
Lovers of fables will recall that, when the clock struck midnight,
Cinderella’s fairy godmother took back her magic.Writers should always have
the option to take back the copyright in their works at the end of a publishing
deal. A writer may decide to leave them there (after all, continuity of
administration is a valuable thing) or decide there is more to be made by
shifting control to another publisher. This is one of the great incentives for a
publisher to keep doing the right thing.
Fortunately,most publishers do not expect life of copyright deals now.It’s
swings and roundabouts for them - they might lose one writer’s catalogue at
the end of the retention period,but pick up another writer’s catalogue that had
been controlled by a competitor until the retention period had similarly expired.
Most publishing deals give the writer the explicit right to require the
works (which were assigned to the publisher during the deal) to be reassigned
to the writer at the end of a specified time. The usual way of doing this is to
have an appropriate clause in the section setting out the period during which
the publisher may control the works. This may involve executing specific
documents, though this can be avoided by careful drafting.
There is some debate over the Capital Gains Tax (CGT) implications of
re-assignments and these need to be considered on a case-by-case basis. A
recent amendment to the law probably catches such reassignments. The real
problem is how to value the works.This is an area of law that is still developing.
Keep it in mind though that CGT is one of the fairer taxes, because it deducts
the effects of inflation before the ‘capital gain’ in value is calculated.

QUESTION # 3
promote as much as you can. go on the web and upload you music to www.musicsubmit.com, www.radiodirectx.com, sell you music at www.cdbaby.com and call local radio too. make flyers and give some cd's away. this will build a fan babe. build a website and have fans write their e-mail address down so you can stay in touch. go to www.starpolish.com for more..

Good Luck,

Terry Copley