Contracts, paragraphs and clauses are normally not part of the most favourite topics for artists and managers. When an artist decides to contractually commit to a publisher for a certain period of time, questions about questions come to his mind. Both the artist and the artist manager should deal with a submitted contract in peace - after all, it is about the rights to the artist’s creative property.
Creative property is a composition (lyrics and melody of a song) that is protected by the copyright. If a TV station wants to use a song for a commercial, the artist’s publisher is asked in 100% of the cases to conclude a so-called synch deal between TV station and publisher. It doesn’t matter whether it is a cover or the original song - in both cases the intellectual property, i.e. the composition, is used. If the original recording is used, it additionally concerns the neighbouring rights which are administered by the label. But more about this in the second part of our mini contract series.
tamanguu talked to Julia Frese, a lawyer in the music law firm Zimmermann und Decker, and clarified the most important legal questions that an artist manager or an artist should ask himself with regard to a publishing deal.
tamanguu: can you tell us what the most common mistakes (young) artists make when it comes to contracting with a publisher?
Julia Frese: The most important thing is the research in advance. No Google search with those 10 most important tips for publishing contracts, but a proven industry expert advice. Investing a little money before signing a contract is sensible investment and pays off in the end. This is the most common mistake young artists make: Save money and sign a contract head over heels. It is absolutely necessary to sign only those provisions whose content and, above all, their scope (clause by clause, line by line, word by word) have actually been understood.
tamanguu: Which clauses are particularly important in the publishing contract?
Julia Frese: A possible advance payment is of course important for the artist at first glance. Of course, you have to live on something, but this prepayment will be recouped afterwards anyway. Almost more important, however, are questions of exclusivity and thus the duration of the contract (including any circumstances that trigger contract extensions), the question of the “split” of revenues and the question of the duration of the assignment of rights. If this assignment of rights to the publisher is unlimited, this means the so-called “legal term of protection”, which grants the publisher the rights “up to 70 years after the author’s death”. These are also points, for example, which often do not appear completely transparent to young artists and artist managers and with which they are often unhappy later in their careers.
tamanguu: Do I ALWAYS have to sell my rights exclusively?
Julia Frese: Roughly speaking, exclusivity refers to two possibilities: all titles of an artist as well as the exclusive commitment to only one contractual partner. And no, of course, rights are not always granted exclusively for life. An example of this: In addition to the exclusive author agreement, there is also a single title agreement. Here you define individual titles that fall (exclusively) into the contract. In this case, however, the author is not exclusively bound to the publisher - as is the case with an exclusive author contract - also with regard to other (future) works; there is no exclusive contractual term here.
tamanguu: Can’t I do it by myself? Why do I need a publishing deal?
Julia Frese: We have discussed the DIY style here many times, but it is not for everyone - especially when it comes to your own copyright, your own competence quickly ceases and you can no longer see through the rights jungle. This becomes clear when you look at the development of the work of a music publisher: Historically, music publishers had the same tasks as a magazine or book publisher: to print music on paper. Nowadays, music printing plays only a subordinate role. One of the core tasks of publishers today is the administrative management of musical works (here primarily the registration of such works and the control of accounts), as well as the assignment of rights and the commercial use of musical works (e.g. synch deals). Furthermore, publishers naturally award author’s advances, which are important for authors and in some cases indispensable for financing their lives as artists. Apart from the question of financing, authors could also do many things themselves, after all they still have GEMA at their side. However, the prerequisite is time and the desire to familiarize oneself with such a subject and to deal with such matters as invoices and declarations of works
tamanguu: Do I still have anything to do with GEMA or is it all done by the publisher?
Julia Frese: Whether with or without a publishing contract - GEMA member remains a GEMA member. This means that GEMA squares most income directly and distributes it to the publisher and authors according to its key. If no publishing contract exists, everything is settled directly with the author. It depends on the rights, which are settled directly with the author or via the publisher. If there is no publisher, the author naturally receives 100% of the evaluation. However, there are also areas of exploitation which GEMA does not exercise either way, such as synchronisation rights. This can only be perceived and evaluated by the publisher.
tamanguu: How much do I have to give to my publisher? What is justified here?
Julia Frese: The GEMA distribution plan specifies a lot here, for example in mechanical law (CDs etc.) 40% publisher, 60% author. However, there is also the possibility for some authors to found an edition or a co-publisher and thus increase their own split. Another way to improve the split in favour of the author is a so-called refund of the publisher’s income to the authors.
tamanguu: For whom is a publishing contract recommended, for whom rather not?
Julia Frese: If, as an artist, you are dependent on receiving an advance at the time of this consideration, it makes sense to accept the offers of a publisher. But what many people forget and what must be kept in mind is that - even if this sum is regularly agreed as non-refundable - it can be charged until the recording is complete. Besides managing your own songs, it can also be very useful for some authors - especially for those who specialize in writing songs for other artists - to use a publisher’s network. Modern publishing houses also support their authors in “pitching” their works to labels and artists. And in the meantime, some publishers are already offering their authors “songwriter camps” in which composers and lyricists take part in the Have the opportunity to write songs together with other authors and to exchange ideas creatively. Cooperation with an (internationally networked) music publisher is also recommended if an international exploitation of the titles is possible, for example in the USA. There in particular, an author is on his own with regard to the assignment of his rights (and the realisation of his royalty claims) and is regularly overtaxed without support, for example by a publisher. And correspondingly disadvantaged.
End of the interview
Everything begins with the right and competent advice, continues with the openness and desire to deal with legal issues and does not stop with the signing of the publishing house deal - a new contract can wait again.
Many thanks to Julia for the insights into the for many so abstract and yet everyday topic of rights! In the next part of the conducted interview, tamanguu talks to Julia about the legal issues of a record label deal. Stay tuned!
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