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Publishing Your Music

Legal Disclaimer

While entertainment law is not rocket science – it can quickly get complex.  Hopefully this article will help you stay out of trouble by providing enough information to allow you to ask the right questions.  To cover all these topics in this article I’ve played fast and loose with some complex legal issues so do not rely on this article for legal advice.  Check out the books I’ve listed and talk to more experienced musicians.  And if you’ve got questions regarding these issues, contact an attorney familiar with entertainment law, your state law, and your particular situation.
Publishing

Ah, the mysteries of music publishing.  A fascinating history, a complex present, and an uncertain future.  In today’s market there are many good reasons to have a firm understanding of music publishing.  The most important one for the purposes of this article is that it is through publishing your music that you can collect your performance royalties.

·         Why publish?  Suffice it to say that if you want all the money due from a public performance of your song, from, for example, radio play, the song must be published by a music publisher and registered with a performing rights organization.

·         How can you get your music published?  There are two ways to get your music published, find a real honest-to-god music publisher who’s willing to take you on as a client, or publish your own music.  Again, for this article we’ll assume that you want to publish your own songs because: (a) you don’t know any real honest-to-god music publishers, (b) you do not want to part with the “industry standard” 50% of your publishing rights, or (c) you really like the idea of becoming a music publisher.

Regardless of why, here’s how to publish your own music.

·         Select a performing rights organization.  You’ve got basically three choices: ASCAP, BMI, or SESAC.  Look them up on the web, send away for the written material, talk to your friends, consult your own personal oracle, then close your eyes and pick one.  Don’t misunderstand me, this is an important choice, you’ll authorize this organization to collect your performance royalties. It’s just difficult to find objective criteria for picking one over the rest.

·         Get name clearance.  After selecting the organization, come up with three names for your new music publishing business.  There are a lot of publishing companies out there folks, I suggest you list your third choice as Your Name Music Publishing.  Chances are pretty good that that name is still available.  Remember, the organizations do not want any chance that money they (uh, sorry, I mean you) should be receiving from your songs is going to someone else, so they will reject names that are even similar to names already registered with their or another organization.

·         Business formation.  After name clearance, you then form a business in your state, or another state where you have a registered agent.  This business formation process might be as simple as a doing-business-as (d/b/a) registration, or filing an assumed business name.  If your business is just going to be you, this simple process is o.k.  However, if more than one person is involved in the business, co-writers, band mates, etc., I strongly recommend that you form a more structured business, for example, a Limited Liability Company (LLC) or Corporation.  The operating agreement or by-laws for the business should address who does what, who owns what, how members are compensated, how new members join, and how members can leave.

·         Organization application.  Part of the packet you’ll receive from the organization after name clearance is the publisher application form.  Some organizations charge a non-refundable application fee and some require “proof” that you are a real music publisher.  That’s one reason why it is important to put the publishing information on the CD and liner notes - proof that you are a real music publisher.  While you can complete the application yourself, you may save time by getting help from someone experienced.  I had one band, very free spirits all, who wanted to save money by doing this themselves.  They had their application rejected three times before final acceptance.

·         Song and song-writer registration.  After acceptance of your publisher application by the organization, each of your songs published by your publishing company must be registered with the organization.  This is the other reason it is important to put your publisher information on the CD and liner notes.  If you get airplay, the radio station owes you money.  You must let them know who to pay.

For example, your CD says that all your music is published by Your Name Music Publishing, ASCAP, 1999.  Again, in theory, if your songs are played, the radio station lets ASCAP know that they played your songs and sends ASCAP a check.  ASCAP then looks up the songs on their registration, sure enough, there they are, registered to Your Name Music Publishing, and they cut you a check – in theory.

Song registration is also the way to let your performing rights organization know how to divide up the royalties.  For example, go back to the recording agreement discussion, let’s say that you agree to cut the engineer in for a piece of that royalty pie because of her great arrangement ideas.  This is one way to do it, list her as a co-writer on the song registration form and give her 10% of any artist-rights performance royalties. (The song registration form will draw a distinction between artist-rights and publishing-rights.  While this is a very important distinction, it is beyond the scope of this article.)  Please note that most organizations require that everyone who gets paid must be a registered song writer with some performing rights organization.   This means that you must also register as a song writer with your organization as well as register as a publisher.

Bottom line.  Publish your music.  The only reason not to publish your music is that you think that you will never get any air play or be eligible for any performance royalties.  In my opinion, that’s the wrong attitude.  I tell all my clients to assume that they’ve got the next “Happy Birthday To You” on their CD and to plan accordingly.


Copyright Registration

I’ve already explained how easy it is to get a copyright for a song.  Think it up, write it down – you’ve got the copyright.  Now for a mere $20, you can register that copyright with the U.S. Copyright Office.

·         What does “registration” mean?  Copyright registration is a formal, but usually very simple, process of making a public record of your copyright.  This public record along with the copyright symbol, in theory, puts people on notice that the work is protected.

·         Why register?  Registration is required before an action can be brought against an infringer.  Additionally, timely registration (“timely” is defined in the Copyright Act and is different for published and unpublished works) allows you to collect statutory damages, up to $100,000,  and allows you to recoup your attorney fees.

·         When to register.  I recommend that all my clients register their copyrights before going into the studio.  I even like to see them register a song before they begin performing it live.  If the song is important enough to work up, perform live, or record, it deserves registration.

·         How to register.  The U.S. Copyright Office has good, basic information available either at its web site, http://lcweb.loc.gov/copyright/ or contact them at Library of Congress, Copyright Office, 101 Independence Ave, SE, Washington, DC  20559-6000.  Specifically, Circular 1, Copyright Basics, is very informative.

You’ll typically use two forms to register your copyrights.  Form PA and Form SR.

·         Form PA (Performing Arts) is the form used to register the copyright to the underlying composition itself.  That is, the music and words.  The form is self-explanatory and, if you’ve written all the material being registered, not too complex.  If the work being registered was co-written, or if it’s a derivative work (as defined in the copyright law), you may want to have an entertainment attorney help with the form.

·         Form SR (Sound Recording) is used to register the copyright to actual recording of the composition.  This form would be completed and filed after the CD was recorded.  Additionally, if you ever decide to rerecord a song on another CD, you should file another form SR for the second recording.  The underlying composition is still the same, and is still registered.

It is possible to register both the underlying composition and the sound recording on Form SR.  However, as I mentioned above, I do not recommend that you wait until the CD is finished before registering the copyrights.

Another option, used quite often, is to register the copyrights to an unpublished collection of songs under one registration number.  For example, before you go into the studio make a tape of all your songs, fill out form PA, call it Your Name Vol. I, send it in with $20 and the copyrights to all the songs are registered under one number.  After the CD is recorded, but before distribution, you could also complete one Form SR to register all the recordings under one number.

Should it ever become necessary to pull out a particular song and give it its own number, for a copyright transfer for example, this can be done on Form CA (Correction and Amplification) for another $20.