Getting a good publishing deal is as easy as predicting the toss of a coin five times in a row. Big George Webley takes a looks at heads and tails.
To give an accurate and full picture of the ever‑changing complexities of music publishing would take up 100 times the space of this entire magazine — and that's no exaggeration. So since I can't hope to give you that level of understanding, the next couple of pages are an insight into how you can survive the trauma of "Do I or Don't I sign away the rights to the most money an artist can make in the music business?" We'll look at what some of the rip‑offs are and how hard you may have to bite your lip when they affect you.
Of course, if you're just about to sign a five‑year, multi‑million pound record deal and the subject of publishing rights just happens to come up during last‑minute negotiations, rather than reading this article I suggest you speak to your legal team immediately.
On the other hand, if you're thinking about forming your own publishing company (which, if you have a minor hit, can be very profitable when one of the majors buys you up, but until that point is a totally‑time consuming, laborious and thankless task which incurs huge phone bills, solicitors fees and reaps no money whatsoever), or you're about to embark on a career practising music business law and specialising in publishing and its many legal intricacies, there are some excellent and informative books on sale in the classified section of this magazine, all at reasonable prices (see the 'Further Reading' box elsewhere in this article). These books contain everything you will ever need to know about fiscal remuneration from cross‑collateral territorities and give examples of projected income from highly successful imaginary product, all explained at length in a highly technical and small print‑type way.
But if you want an honest assessment of being a songwriter or composer in the latter part of the '90s that pulls no punches and isn't bogged down in irrelevant points or contractual niceties, then read on, at your own risk.
Put in its simplest terms, publishing is the collection of all money earned from the sales and performance of written work, inclusive of music, lyrics, poems and stories. There are two reasons for having a publisher (who takes a sizeable percentage of that money):
1. They (hopefully) have a network of reliable collection agencies and the experience to collect money from every source that pays for the use of the written work.
2. They will endeavour to exploit your work to the widest possible market, in order to earn you (and them) more money.
In other words, they can get money from places that you don't even know exist, and a percentage of something is better than all of nothing. Plus they will do their very best to find other ways of making money out of your work, without you lifting a finger. So the two key words here are Money and Exploitation, which we'll look at more closely later.
Another aspect of the creative side of publishing which is split into two is the people who need it, hereafter known as the Artist (oops — contract speak). There are artists who perform their own material — be that brit pop, techno rave, easy listening ballads, folk, reggae, whatever — and artists who write songs for other people to perform. Which side of this divide you fall will affect how you reach your decision to sign on the dotted line. Of course, if you're in a band, you wouldn't say no to Whitney Houston releasing one of your tunes as a single, and I doubt if there's ever been a songwriter in the history of recorded music that would have turned down their own record deal, but getting a publishing deal is about getting the best for what you are, not for what you wouldn't mind being.
Publishers give you money in two ways: Advances and Royalty cheques. Unless something drastic occurs, every penny they pay you as an advance comes out of the money you will eventually earn, and the more money they offer as an advance, the smaller your percentage is likely to be. 'Percentage' refers to what proportion of the total income is yours and what is theirs. The lowest split you should even entertain is 60/40 (except in exceptional, one‑off circumstances, which we'll deal with a moment). Bands such as the Rolling Stones probably get 90/10, but anything between 60/40 and 80/20 is acceptable, and can be used as a bargaining tool from both sides of the table. If you're a struggling live act in dire need of money to pay off loans on equipment and fix the van, you could push for a bigger advance and a smaller royalty payment. Do bear in mind, though, that when you've got a number one single and album all round the world, and instead of getting £30 million in royalties you only get £20 million, you'll curse that old van and the credit card company, who now treat you like gold but a few years ago were on the verge of requiring you to mortgage all your vital organs when you agreed to 50/50 instead of 75/25 in order to get an extra £2000. It happens. The less you ask for up‑front, the stronger your position in negotiating a higher percentage.
Publishers can get money from places that you don't even know exist, and a percentage of something is better than all of nothing.
For non‑performing composers, the truth is that, unless you're offered an absolute fortune, a blanket publishing deal is probably the last thing you want at the beginning of your career. The chances of getting a song covered by an established artist are enormously reduced if you don't have the publishing to offer as a sweetener. These days there are very few opportunities for new songs to be recorded by established artists (although there is a place where songwriters are in great demand — we'll get there later), and the chances are that your first taste of publishing will be with a one‑off song assignment. This is where the singer's management will want to own the publishing on the song/s their artist is recording. The standard percentage in these cases is 50/50. They too are aware of how much money songwriting generates, which is why they want half of your money. The prospect of an artist who guarantees a large number of sales recording your song is a good enough incentive for you to agree the lowest percentage terms in publishing (anything less than 50/50 is daylight robbery, although it does happen). And if they have half of the royalties, there's more chance of your song being the B‑side of the next single. (Did you know that the B‑side of a single earns the same amount as the A‑side on sales? This is why there are so many completely useless B‑sides written by artists who haven't written the A‑side.)
But whether you're part of an active live or production band or a solitary songwriter, it's preferable to hold onto your publishing until you've made your mark and the big deal comes along. The Shamen reportedly signed a deal for a £1 million advance and top royalties after 'Ebenezer Goode' got to number one in the charts.
Sometimes a publisher can make you richer than a lottery winner without you doing anything. Placing one of your old songs on a hit film whose soundtrack CD goes ballistic can earn you well over a million pounds, and a lot of new friends. To a slightly lesser extent (although they're still not to be sniffed at), TV adverts are also very nice little earners. A bunch of session players re‑record your tune on union rates while you cop up to £10,000 a week in royalties (it can be an awful lot more if the ad is shown in cinemas). This may sound brilliant, but some people would disagree with you.
Take Sting: he wasn't that impressed by the huge amount of money his song 'Don't Stand So Close To Me' earned him when his publisher (at the time) allowed a deodorant company to use it for a TV advert. A year or so before he became famous, while still in Newcastle, he signed a deal with Virgin music. The terms were a 50/50 percentage split, and the company also spent over £2000 (a fair amount 21 years ago) demoing up Sting's band. One of the standard clauses stated that he had signed away his moral right to all the music he would write during the lifetime of the contract. Which meant that the publishers were free to use his music for any purpose which would generate money, without asking his permission. And, as the advert used a soundalike band, Sting couldn't even stop the advert due to unauthorised use of his performance.
As I recall, during the subsequent 11‑day trial, he spent around £150,000 not to be able to buy his moral rights back, although the advert came off air shortly afterwards. However, he did raise his percentage to a rumoured 90/10 and shorten the length of the contract (as is the case in all industry legal wrangles, both sides kept very quiet about the details).
Every time Radio 1 FM play a tune, they pay £34 for the privilege — not to the artist or singer, but to whoever owns that song.
You are not in Sting's position yet, so you have little chance (or, more likely, no chance) of keeping your moral rights in any contract that comes your way. In reality that isn't much of a problem, as most people would be over the moon to have a gorgeous model rubbing a roll‑on deodorant all over his/her body whilst their music earned them enough money to buy a country mansion. But if you're totally committed to a cause — vegetarianism, for instance — you can legitimately ask (and usually get) a clause in whatever contract is on offer, to the effect that "at no time will your work be used in the promotion of meat sale, production, consumption or that of any other meat‑ or livestock‑related product". But you have to get anything you want in a contract prior to signing it: once a contract is signed, sealed and delivered, the chances of amending it with details like this are zero.
To put it into context, there's more chance of you becoming an astronaut today than there is of becoming a successful songwriter. But all is not lost. The main questions are whether you can find the right opportunity, and, more importantly, whether you're dedicated enough to go for it and grab that opportunity.
The days of the Brill building in New York, or Tin Pan Alley (Denmark Street in swinging '60s London) are gone forever. The only place that comes close these days is Nashville, Tennessee. In America, country music — which is a broad church, and encompasses all verse/chorus/chord pattern songs — is a boom business, and over the last 30 years has become a haven for many British songwriters and musicians. Country music is the only genre of mass‑appeal popular music where the artists generally don't write their own songs — although, coincidentally, artists or their managers do seem to co‑write a lot of songs with new songwriters.
Despite being a town dripping with money (it's also one of America's principal financial centres) Nashville still runs its business on traditional small‑ town values. The majority of the industry is based in two streets (see map above), which are full of studios, record companies, law firms, management companies and publishers. If you have a song, you can literally knock on any door and ask to play it and someone will listen. You don't even need to take a guitar with you — there are more classic Martin acoustic guitars hanging on office walls in Nashville than there are on the rest of the planet.
In a day it's possible, without prior appointments, to be heard by a dozen million‑unit‑selling publishers, managers, producers and studio bosses. But it will be the toughest day of your songwriting career.
Nashville is also legendary for its songwriters' cafés, where every evening established writers will get up and play one of the hit songs they've written for a man in a black hat, or a man in a white hat, or a red‑haired girl in a gingham dress, or a brunette in tight jeans. You can put your name down and hopefully get called up, although when you hear your name it sends a cold shiver up your back, as these writers are more than just fantastic — they're the best of the best. If you're good enough, the most you can hope for is a chat with one of the elite; maybe, after a couple of months of bumping into each other at cafes, they might invite you over for a barbeque. That's you on your way towards either a co‑writing session or an orgy.
The fact that Nashville is so accessible explains why it's a town swamped in available songs (one company told me they currently have half a million tunes looking to get placed), and a personal recommendation is worth more to the people who put songs forward to artists and producers than a hunch. But if you're serious about being a writer of good three‑minute songs, with a hook‑line and a narrative, you ought to go to Nashville and check it out — it's the centre of the songwriting world.
Contracts are packed full of waffle to grind you down and keep the legal profession in Saville Row suits, which they collect in their Rolls‑Royces.
What do you mean, you can't afford to? This is not an industry where careers are delivered to your door; if you get a song placed and it does well, you can look forward to a life of sitting around penning tunes and hanging out with buddies down at the bar, while airbrushed artists tour the country making you vast sums of money. If you're not prepared to give it a shot, there are lots of other people who are. Fortune favours the brave, and there are plenty of middle‑aged factory workers who wish they'd given it a shot rather than sitting indoors waiting for the phone to ring. No‑one is beating a path to your door to sign you up — you have to go looking for it.
Getting to Nashville is easy: there's a flight direct from Gatwick for less than £300, motels cost about £20 a night (or £25 a night for two), and you can eat as much as you want for £5 a time in a variety of chain restaurants. A car will cost about £200 per week, inclusive of top insurance (you need a car to do business in the USA) and petrol is 20p per litre. So what are you waiting for? Composers and musicians have historically globe‑trotted to seek richer pastures: why are you so special?
There's more money made out of songwriting than any other aspect of the music business. For instance, every time Radio 1 FM play a tune, they pay £34 for the privilege — not to the artist or singer, but to whoever owns that song. If you're the composer you'll be lucky to get more than half of that. Why? The PRS [Performing Right Society] account to the publisher, who will take half of all performance royalties (they normally do), then the publisher accounts to you — and charges you for accounting. If you're a member of PRS you can ask for these royalties to be accounted directly to you: not only will you save commission, you'll also get your money 90 days sooner.
On income from international sales you can be at the mercy of some terrible financial dodges. Most, if not all, contracts state that the artist will receive 'X' percent of all net monies received by the publisher from foreign parts. What happens, time and time again, is that a publisher will have a stake in a network of foreign collection agencies who will collect your earnings, take a commission and pass it onto the next collection agency, who repeat the process. Your money can be collected by as many as 10 collection agencies en route to your pocket — with the result that much less ends up in your pocket.
This is just one of the things you'll have to put up with until you cease to be a struggling artist and become a multi‑national company in your own right, but that's a hit song away. You might already have written it, too. Nick Lowe's most financially successful song is 'What's So Funny About Peace Love and Understanding?'. He wrote it as a teenager and recorded it with his band Brinsley Schwartz in the early '70s. It was covered in the late '70s by Elvis Costello and the Attractions, but it made the big bucks in the '90s when some anonymous American male beefcake singer recorded it and it was included on the soundtrack album to the Hollywood blockbuster The Bodyguard.
The trick is to know the right time and the right company to sign away your publishing to. That doesn't mean the first offer that comes along: never be pressurised into signing, always take independent legal advice, and always make it your judgement call. That judgement may be that you have no option but to sign — but remember that publishing deals are similar to the retail trade: if someone offers you a deal, there are a number of other companies out there who may be willing to match or better that offer. Bettering the offer may mean a smaller advance but a larger percentage, or vice‑versa.
So good luck in getting the right publishing deal: it's something not to be entered into lightly. Until then, make sure you protect your work — sending a copy to yourself in a registered envelope is an adequate method, as long as you don't open the envelope. An even better bet is to give it to someone respectable that you trust to hold onto for you. If you feel the investment is worthwhile, put it in a safe deposit at a bank; depending on the bank this can cost £50 per year, whereas a registered envelope costs less than a fiver, and is legally safe (ish). There's no such thing as a really safe bet in this business.
Never, ever, sign anything until you have taken it to a solicitor to read through for you. If you're in the Musicians Union, you will get a basic reading free. But before you take it to someone, read it to yourself, aloud. Start by photocopying it twice, once for the archives and secondly to mark up and cross out. Contracts are packed full of waffle to grind you down and keep the legal profession in Saville Row suits, which they collect in their Rolls‑Royces. Go through the clauses one by one, underline the parts you don't understand, and cross out the bits that qualify every angle of a point (for example, "the Artist hereby assigns to the Publisher all the copyrights and all other rights whatsoever and howsoever now or hereafter known in all musical compositions and/or lyrics and/or original arrangements of musical works which may prior to the date hereof have been written composed or created in whole or in part by the writer and not been assigned by the writer to any third party". This amounts to you giving them the same publishing rights on songs or parts of songs you wrote years ago that haven't already been published by someone else).
Breaking down the income that songs generate is a major part of a publisher's job, particularly when that money is earned in foreign parts. In reality, there are only two collection agencies who account for the majority of the money you will earn from your work. They are:
- Performing Right Society Ltd (PRS), 29‑33 Berners Street, London W1P 4AA. Tel: 0171 580 5544. Fax: 0171 306 4050.
They collect all the money generated by the performance of music, whether pre‑recorded or live, on radio, TV, juke boxes, and in pubs, shops, and so on. All establishments that invite the public in need a PRS licence to play background music (even the radio) — though this type of licence is not to be confused with a music licence. To join PRS, you must have had three songs commercially released. The lifetime membership fee is £50.
- Mechanical Copyright Protection Society Ltd (MCPS), Elgar House, 41 Streatham High Road, London SW16 1ER. Tel: 0181 664 4400. Fax: 0181 769 8792.
These people collect the money from every manufactured copy of a CD, record, tape, video, CD‑ROM, or anything else that contains music which is sold. It's free to join, as they take a small commission. They also have the Copyright Clearance Department (see my article in the June issue of SOS), which is the best free service in the entire music business.
- British Academy of Songwriters, Composers and Authors (BASCA), The Penthouse, 4 Brooke Street, London W1Y 1AA. Tel: 0171 629 0992. Fax: 0171 629 0993.
Of all the songwriters' clubs, guilds and societies in Great Britain, the most useful is BASCA (British Academy of Songwriters, Composers and Authors). Established 50 years ago, they have around 3000 members from all areas of contemporary songwriting and composition. They have a position on the board of all the major organisations that deal with copyright royalty payments, and they fight the songwriter's cause.
They also hold, free of charge, a fortnightly Business Affairs Workshop attended by two industry lawyers, a specialist accountant, and representatives from PRS and MCPS, where writers can voice their own concerns and have their problems dealt with on the spot. Alongside these are regular workshops where unsigned songwriters get the chance to have their work critiqued by leading publishing A&R representatives, as well as experienced (and successful) songwriters — not for the faint‑hearted. BASCA also administer the highly credible (sic) Great British Song Contest, where the winner goes on to represent the nation in the Eurovision Song Contest.
But don't let that minor point deter you from enquiring into the wide range of other crucial services they provide either free or for a nominal fee. Membership starts at £35 per year.
There are five major music publishers on the planet — BMG, EMI, Sony, Warners and Polygram — whereas there are tens of thousands of smaller publishing companies in Great Britain. Let's look at a couple of the pros and cons of being signed to either one.
- More negotiating muscle and an ever‑tightening grip on all the outlets that use music.
- Plusher offices, with more people to work on your catalogue.
- A larger standard percentage rate.
- Being on the same roster as hundreds of superstars.
- You are the smallest cog in an enormous machine.
- No personal relationship between your talent and their money.
- A longer wait to be accounted to and faceless bureaucracy to deal with when you have a concern you want to raise.
- You're an insignificant name on a large roster, and you may only be there because the company wants to own more assets than their competitors, whether they pay off or not.
SMALL COMPANY PROS:
- You're treated as an artist and not a number.
- There's someone you can talk to about your creative flow and who cares.
- Personal attention for you and the exploitation of your work.
- You will not be part of the faceless market‑share mentality of all major corporations.
SMALL COMPANY CONS:
- They go into liquidation and your career gets frozen in the courts.
- If you fall out with them, life can be pretty sticky (mind you, if you fall out with a major you can be stuck for life).
- If one of their other artists gets a tickle, you get forgotten.
- They're undoubtedly administered by one of the majors anyway, and therefore you're losing out on the commission they're paying to the majors.
- Nashville Songwriters Association International (NSAI), 15 Music Square West, Nashville, Tennessee 37203 USA. Tel: (001) 615 256 3354. Fax: (001) 615 256 0034.
This is possibly the most in‑tune songwriters' organisation in the world, and is truly international, running writers' workshops and setting up showcase gigs for million‑selling composers all over the world, even in Britain. Members include all the very best, and that does mean the most successful, and they offer books and videos which explain how things work. Their rates are over $100 per year but you get a lot for your money. Y'all give 'em a call, ya hear?
As I mentioned at the start of the article, there are a number of comprehensive music publishing manuals on offer, all of which will give detailed breakdowns of every point of law relating to your circumstances (and everyone else's). In practice, the more you try and change the wording of a contract the richer the legal profession get, the longer you take to get a deal, and the more the publisher goes off the idea. But if you want to read a horror story of truly terrifying proportions I highly recommend Expensive Habits — The Dark Side of the Industry, by Simon Garfield, ISBN 0‑571‑13721‑0.
This is a true and frank account of some of the most despicable business deals done between established companies and top stars such as George Michael, Bruce Springsteen, the Rolling Stones, the Kinks, and an up‑and‑coming combo who should do well for themselves, The Beatles. It's a fascinating insight into how bad things used to be in the music industry. I eagerly await a book about how much worse things have become in the corporate world we live in.