Music Publishing Defined
Music publishing, at its very core, is the accumulation and exploitation of copyrighted musical compositions. Exploitation in this sense is a GOOD thing, not what usually comes to mind when we think of exploitation in labor or civil rights contexts. Exploitation in music publishing simply means getting the copyrighted work (think "song") used in income deriving activities, such as recording contracts for albums, public performances of songs, printing of sheet music or folios, and applied in soundtracks for television or motion pictures. It means the song is reproduced, sold or used in commerce. Songwriters or composers create a copyrightable musical composition, (the song). Once the composition is created, music publishers exploit the song. Usually, there is some transfer of ownership of all or a portion of the copyrighted work from the original songwriter to the publisher or publishing company. The income earned from the exploited song is also split between the composer and the publisher in varying degrees. Exploitation is the goal of any successful publisher and composer.
Music publishers can be any one or a combination of: (a) the original composer, frequently called a "self-publisher" (b) an established and independent publishing company, or (c) the employer or commissioner of a work for hire, such as a television production company. Therefore, when musical compositions are "published" they are creating royalty income for the copyright holder(s) through the licensing of the copyrighted musical work, as explained in greater detail below.
Music Publishing Product/Assets
The product or asset used by a music publisher to generate income is the copyrighted song. Sometimes, the asset is something called a derivative of the original song. For example, if a movie was created based on the lyrics of a song, the movie is known as a derivative work of that original song. A person or company wishing to use a copyrighted work in its own production must secure the copyright owner's permission, and negotiate a fee for the intended use(s). Determining who is the owner of the copyright is not always an easy process. Because copyrights are a property right, they are regularly transferred, assigned, bought and sold. This causes ownership to potentially split and/or change hands many times in the protected lifetime of the work. There may be multiple owners, each of whom may need to be contacted. Some agreements between co-owners allow for the controlling party to administer the entire copyright. Others require separate permission from each of the co-owners.
Permission and license fees for using a copyrighted work are usually negotiable, with at least one common exception. Something called the compulsory mechanical license is obtainable without the copyright holder's permission, by paying a statutory mechanical rate for the compulsory license. This is a provision found in the Copyright Act, and is a bit too complicated to summarize in this article (you can thank me later). Other use of copyrighted works without permission and negotiation with all relevant parties is copyright infringement. This can subject the infringer (the bad guy) to monetary damages, injunctions against further copying, distribution or sales, and even jail time.
Whether composers publish their own music or have their music controlled and exploited by publishers, the opportunities for licensing music to third parties for exploitation are unlimited. A party actively seeking opportunities can potentially generate substantial income for both the publisher and composer with minimum effort, once licensed uses are secured.
Types of Licensing
Whether the music written is: (a) self-published by you and you still own the copyright, (b) controlled by a publishing company under a songwriter contract, or (c) a "work-for-hire" owned by a production company, there are several potential music uses capable of generating substantial amounts of licensing income.
The ability to license music for use by third parties is one of the exclusive rights given to copyright owners under the Copyright Act, as discussed in last month's article. If a composer owns the publishing to her music, she essentially has full control over its use and the fees charged for its use. If a publishing company or the publishing affiliate of a production company owns the music, they have the right to license this music to others under any terms negotiated and agreed upon by both parties. However, this right is usually subject to an obligation to share license revenue earned from the uses with the songwriter, who usually receives 50% of the net income derived.
It is important to keep in mind that what we are discussing here is the licensing of music to third parties. An example of third party licensing would be where an independent third party wishes to use the songwriter's or publisher's music in its own production. That third party must then approach the copyright owner to negotiate and secure a deal to use the copyrighted music in the new production. Examples of such projects are phonograph records, compilation records, television commercials, soundtracks to audio visual works such as motion picture or other visual media, radio play, internet broadcasting, or printing sheet music). Remember, the person licensing the work might be interested in paying to license either the underlying composition, (i.e. the written words and music) or the actual sound recording of that composition (i.e. the song in audio format). Accordingly, composers should be aware of all the potential uses of their music, in order to determine whether they are effectively exploiting the music copyright and receiving a fair share of potential license royalties.
