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Vanderbilt Journal of Entertainment & Technology Law

Volume 1 Issue 1 Article 8

1999

Music, Money, and the Middleman: the Relationship between the and the Publisher

Cornelius Cowles

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Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons

Recommended Citation Cornelius Cowles, , Money, and the Middleman: the Relationship between the Songwriter and the Publisher, 1 Vanderbilt Journal of Entertainment and Technology Law 101 (1999) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol1/iss1/8

This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. art & industry forum

Music, d Money, MIDDLEMAN

A ternoon has struck Nashville, Tennessee. The sound of gui- tar chords and a woman's melodious lilt mix with ringing telephones and computer typing in a brick building off Music Row. Carnival Publishing, a small, independent , occupies part of the

first floor. Its jam amidst candles

and beaten couches, trying to find the unique

sound that will launch careers and reputations. 410 "1 After all, they think, Randy Travis or LeAnn

Rimes may select one of these songs for their next Cornelius Cowles . Propped against the window, sunlight filters across a picture of one such

songwriter in a dreamy moment of inspiration. Her name is Carter Wood.

THE RELATIONSHIP BETWEEN THE SONGWRITER AND THE PUBLISHER By Cornelius Cowles When she graduated from ger [publisher who promotes industry. It college six years ago, Carter its writers' songs] has the examines the songwriter- came to Nashville hoping to contacts."2 In addition, the publisher relationship from learn about the musicindus- songwriter must be persist- the perspective of those peo- try. She had never written a ent in nurturing her own con- ple active in the industry and song before and had virtually tacts. Carter, through such examines criticism of the no exposure to the bustling initiative, ended up touring publisher's role. It further industry that prompts with Willie Nelson this past analyzes the typically thorny Nashville to call itself Music summer. legal and contractual issues City, USA. An internship at a Like many other writers in faced by the songwriter in convinced her Nashville, however, Carter negotiating an exclusive that songwriting could be her "hates the business side of songwriting agreement with secret strength. She didn't the industry."3 When signing the publisher. Finally, recog- know then that to sign her her contract with Carnival, nizing the special role of first publishing contract Carter let her lawyer negoti- songwriters in Nashville, it would demand five years of ate the details with her pub- addresses the songwriter- dedication, self-promotion, lisher, Travis Hill, and his publisher relationship as it and self-discipline. lawyers. As is true for most uniquely exists in Nashville, Though Carter stayed, and songwriters, the fine print of home of country music. succeeded, these sacrifices her contract seems far have stilled the aspirations of removed from the notes The Role of the countless others. Songwrit- Carter writes across a music Music Publisher ing in Nashville is rarely a staff. But the two are inex- The music publisher "get-rich-quick" story. Rath- tricably linked. derives income from a song er, it is a work in progress-a While it is advisable to once the writer has trans- journey of paying dues, mak- hire a lawyer for such details, ferred his or her rights to the ing connections, and avoiding it is also prudent to know publisher. Some songwriters legal pitfalls. Consider: a what exactly the lawyers are are suspicious of this song request from a star like negotiating. Knowing basic and question George Strait would garner contract stan- the publisher's substantial thousands of submissions. dards helps the writer guide claim on song income. For From these, Strait would his or her attorney to secure the aspiring songwriter, choose approximately 70 the most highly valued ele- though, the commission is songs, which in turn would ments and avoid future sur- well-spent. No matter what be held for only 10 spots on prises. At the very least, and criticism publishers face, an album. The numbers are most importantly, knowledge songwriters need publishers. crushing, so any competitive of legal details lets the writer The publisher acts as the cru- edge in the industry brings a protect her interests in her cial link in transforming the writer that much closer to songs. These interests, or the songwriter's creative work 1 "writer's Music Row. Their success is rights," demark the into a marketable product. a recipe of talent, timing, and bottom line in this and all The publisher introduces connections, but the song- other industries: money. the songwriter to artists and writer controls only the first. Money, along with creative producers, finds a good fit At least in the beginning of a drive and the chance to work between song and artist, pro- writer's career, and for in an exciting industry, push vides a disciplined working Carter Wood, the music pub- the publisher and songwriter environment, oversees the lisher provides the timing both. This article seeks to business aspects of song pro- and connections. help the songwriter under- motion, and advances money Carter acknowledges as stand the role of the music to the writer. In short, absent much: "It's all about who the publisher, an indispensable the music publisher, the contacts are, and which plug- and unavoidable part of the unknown songwriter has no conduit through which to fy publishers' greater claim song as background music for channel the song over the to song income. To begin an X-rated film, for example, airwaves and into the with, agents normally repre- or to promote a product or record stores. The publish- sent many more people than message the writer would er extracts a heavy price for publishers, so they can earn find distasteful. this service, typically leaving more income overall at a In reality, most publishers the songwriter with less than lower percentage. 10 Clients understand that such uses 50 percent of a song's income. only require agents to find run contrary to good business Yet, in most cases, there suitable work opportunities. sense. Publishers want to would be no income to extract Songwriting Publishers, like managers, preserve and enhance their without the publisher. in Nashville engage in more "hand-hold- reputations to attract more ing" than agents. Still, this writing talent and to main- The most common criti- is rarely a would seem to limit publish- tain that talent already cism levied against publish- "get-rich- ing fees to a manager's range under contract. Publishers ers concerns the publisher's of 15-25 percent. who engage in such bad busi- 50 percent draw of income. quick" story. Publishers, however, go ness practices do not advance In other industries, such as Rather, it is well beyond even managers. far in the small world of Nashville's country music film and television, certain a work in They coach writers in the states have enacted statutes right creative direction, pro- industry. In the rare cases of to limit the fees of managers progress-a mote songs, and, instead of exploitation, though, the and agents. Agents solely journey of seeking work opportunities songwriter should know how attempt to secure work for for writers, provide writers to make herself legally secure clients, while managers take paying dues, with work themselves. in this competitive industry. a more proactive role in Unlike both agents and man- That means understanding 4 making developing artists' careers. agers, publishers actually the publisher's role and the song- Managers also advise clients connections, pay writers a salary in the writer's rights in country music. on public appearances, pro- and avoiding form of advances. Even if a 5 Contrary to what the motion, and choice of material. legal pitfalls. writer's songs earn nothing, California's Talent Agencies the writer still keeps the name would suggest, music Act requires agents to regis- whole amount. publishers rarely "publish" ter their fees with the state, In addition, the TV/film anything. 12 Publishing who, in turn, may invalidate industry generates much print copies of music, or sheet "unfair, unjust and oppres- more money than country music, is normally left to 11 13 sive" contracts. 6 The state music. Agents happily col- printers. Music publishers, normally invokes this lan- lect ten percent of a million- instead, deal in the rights to guage when contracts set dollar film contract but even original music by obtaining agency fees above ten per- classic, hit songs rarely earn on it and then cent. 7 Managers may this kind of money. Agents licensing out lesser rights to 14 charge somewhere between can recover costs quickly in other entities. These enti- 15-25 percent. 8 New York's the high margin industry. ties include record companies General Business Law, for Publishers recoup their costs who produce cassettes and example, sets agent's fees at more slowly, if at all. compact discs for retail and 10 percent. 9 An actor in Another criticism charged societies California accustomed to against publishers involves which act as central clearing paying the agent a low per- writers' loss of creative con- houses so broadcasters and centage might be shocked at trol. An unknown writer other public performers can paying a publisher in lacks the bargaining power to simply and efficiently obtain Nashville 50 percent. assure her songs will be used performance licenses. 15 But country music differs in ways she finds acceptable. The word "" sharply from television and To earn money, an unscrupu- means the statutory rights film. These differences justi- lous publisher might sell the given to a writer to protect his or her original works. 16 in a different regard [than in backbone of the person's "It includes the exclusive New York or Los Angeles] career. If the publisher likes right to make and publish because country music is a the songwriter's stuff, the copies of the copyrighted lyrically-based format that publisher may help him (or '29 work, to make other versions concentrates on storytelling her) develop into an artist. of the work, 0]to make record- more than pop." 2 3 Only a tal- Thus, the publisher can help ings of the work and to per- ented songwriter can deliver turn a pure songwriter into a 1 7 form the work in public." the story country fans expect. songwriter-artist. The 1976 Copyright Act cur- Doyle continues: "More so It is helpful to conceive of rently governs copyright law than pop and urban, country the music publisher as a mid- in America.1 8 Once the is driven by songwriters who do dle-man. The songwriter cre- music publisher owns the nothing but write songs to be ates a composition. But for 24 copyright of a song, the pub- pitched to artists." the songwriter to receive lisher can control all aspects In fact, Donald Biederman, income from this creative of how that song is repro- general counsel for Warner/ process, something, or some- duced and made available to Chappell Music, goes even far- one, must bridge the gap others. 19 With more songs ther than Doyle. Outside of from songwriter to income under control, the publisher country, he says, "it's an source. The music publisher '2 5 has better odds that one of artist-writer world. "If acts as this bridge. those songs will become a hit. you have a pure songwriter," Mechanical royalties and Some large publishing com- he points out, "for that writer public performance royalties panies have "catalogs" of to be successful, [it will hap- provide the main source of 2 6 more than 500,000 copy- pen] only in Nashville." such income for the publisher rights.2 0 Administering the Because the "pure song- and songwriter alike. 30 After copyright, and collecting fees writer" rarely has the person- obtaining the rights to the based on the license of the al network necessary to pitch songwriter's song, the pub- copyright, provides the bulk his or her songs, the music lisher can proceed to exploit 2 1 of a publisher's income. publisher steps in to match Success it by granting the mechanical In the pop field, song- the song to the "right" artist. license to record companies writer-artists frequently In Nashville, an unknown is a recipe and the public performance form their own publishing songwriter seldom gets a of talent, license to the performing 31 companies. Country, howev- song included on an album timing, and rights societies. er, diverges from straight without the help of a publish- Of course, the publisher rock-and-roll. Fred Kewley, er. 2 7 As Carter Wood has connections, must first obtain the song- an agent and manager who learned in her dealings with but the writer's copyright. As a lead- has managed such stars as Carnival, publishers provide ing legal text explains, "[t]he Harry Chapin and Chet a far-reaching network of songwriter songwriter creates the very Atkins, observes: "Publishing contacts with artists, record- controls only product on which the indus- in Nashville is different than ing companies, performing try is based, the words and in New York or Los Angeles; rights societies, movie and the first. music. In accordance with publishing is different with television producers, printers, the 1976 Copyright Act, the 22 2 8 country than pop." and foreign subpublishers. ownership of the copyright of Nashville, and the country But the music publisher that in general, offers more than just con- vests in the songwriter at the employs more songwriters tacts. The publisher also has moment of its creation if it is than anywhere else. Mike the financial resources to fixed in a tangible instru- Doyle, an executive with the jump-start a songwriter's ment of expression. '3 2 While performing rights society career. Kewley explains: the copyright immediately ASCAP, reiterates this view: "For the songwriter who also vests in the songwriter, "In Nashville, beyond a aspires to be an artist, the money pursuant to that copy- doubt, songwriting is held up publisher often serves as the right does not. And songwrit- ers, like anyone else, must The sample songwriter- ing. Yet the songwriter eat. Thus, as Fred Kewley publisher contract in exp.ects the publisher to observes: "People give away Appendix A sets out in detail exploit and promote the song. copyrights forever in order to the rights that the song- Accordingly, the songwriter eat now."3 3 They do so by writer actually gives away. should request a clause requir- means of the songwriter-pub- In general, the songwriter's ing the publisher to use best lisher agreement, the con- transfer of the copyright efforts in exploiting the song. tract that represents the includes the composition's (See Appendix B for sample). 3 7 business bottom line that title, words, and music. The publisher does not Carter and other writers The transfer is valid as directly grant a performance would happily forget. against subsequent claim- license to radio and television ants throughout the world. stations. Rather, the pub- From Singing to Signing By transferring the "exclu- lisher gives a performing The songwriter-publisher sive rights in and to all copy- rights society a non-exclusive 39 agreement sets out the grant rights therein for the uni- license. The performing or transfer of rights from verse," the songwriter relin- rights society then, in turn, 3 4 songwriter to publisher. quishes worldwide control of provides radio and television (An example of the transfer the copyright to the publish- stations with a "blanket" of rights in an exclusive song- er. Thus, the songwriter can- license to perform any of the writer agreement can be not, for example, bypass her songs registered with the 40 found in Appendix A). This domestic publisher and con- performing rights society. grant of rights brings with it tract with a European pub- The society roughly tracks the power to exploit the song. lisher for overseas distribu- how often a given song was Carter Wood's contract tion. Once the songwriter broadcast and then collects with Carnival Publishing is transfers the copyright, the performance royalties from 4 1 an exclusive songwriting publisher can proceed to the medium. After deduct- agreement. An "exclusive" issue lesser rights in the ing for administrative over- songwriting contract simply song. These rights are subor- head, the society then pays connotes that the songwriter dinate to the greater copy- these royalties in part to the is contracting with only one right held by the publisher. publisher and in part to the 42 publisher and is not assign- songwriter. The publisher ing any rights to other pub- Public Performance Rights and songwriter typically 4 3 lishers, such as in a "co-pub- Transferring the copyright halve this amount. The lishing" agreement. 3 5 Al- allows the publisher to societies do not pay one though the 1976 Copyright license to others the right to lump-sum to publishers, let- Act allows the different perform the composition. ting them carve out the song- "rights" in a composition to (See Appendix A, clause writer's share. Rather, the be divided, most beginning (b)(i)). This license allows any performing rights society songwriters do not have the radio, television, or other pays the songwriter his or 44 bargaining strength to con- media form to play the song her share directly. Since tract for anything but an for any program. 38 In all this is industry-standard, exclusive songwriter agree- likelihood, the songwriter most publishers will specify ment. 36 In many instances, supports this transaction in a contract that they have the exclusive songwriter because it means wider expo- no responsibility to pay the agreement is simpler than sure for the writer's songs. songwriter public perform- any alternative arrange- While an exclusive song- ance royalties. (See Appendix ment, providing the fledgling writing contract normally C). Such provisions operate songwriter efficient adminis- permits the publisher to in the songwriter's favor and tration of the song, exploita- license the song for public seemingly argue against the tion/promotion, and collec- and private performance, it need for a publisher. The tion of fees all at once. does not require such licens- publisher, however, remains crucial for other reasons how rarely songwriters can by receiving increasing shares related to networking and make it without a publisher's of performance royalties and song promotion. assistance by relying solely mechanical rights royalties, as The three major perform- on performance royalties. will be discussed later. ing rights societies in America "It's the successful writer, If a classic, hit song pro- are the American Society of with top ten and top 20 sin- duces $500,000 in public per- , Authors and gles [who] can survive with- formance royalties, for exam- Performers (ASCAP), out publishing. Most people ple, a performing rights soci- Broadcast Music Inc. (BMI), come up through the ranks ety like ASCAP immediately and the Society of European and get paid through the lean takes $80,000 off the top, or Stage Authors and Composers years by the publishing com- 16 percent. 53 The remaining (SESAC). 45 Sometimes pub- pany. ASCAP has 75,000 $420,000 is then divided lishers are already affiliated members. Less than three fifty-fifty between the music with one of these and the percent make more than publisher and the song- writer must follow the pub- $20,000 a year from the fees writer. 54 This leaves the lisher's lead by affiliating ASCAP pays. Most people songwriter with $210,000 with the same society. 46 In cannot survive on this, and so from the original $500,000, or '50 other cases, the writer has need the publishing deal." only 42 percent of what the already joined one of the per- The "deal" Doyle refers to song actually earned from forming rights societies, and describes the grant of rights public performances. While so must choose a publisher from songwriter to publish- this percentage seems dis- who is registered with that er.5 1 In return, the publisher couraging to the songwriter, same society. While publish- advances money to the song- the song probably would have ers may contract with differ- writer against future income earned no money without the 52 ent performing rights societies the song might produce. services of the "middleman." for different writers, they may There is always the chance only contract with one society that the publisher will be Creative Rights 47 per writer. unsuccessful in exploiting the The publisher also fre- Each society has its own song and not recoup these quently receives the right to 48 method of tracking royalties. advances. The publisher change the title, lyrics, or Mike Doyle, an executive with thus risks money on every music of the song that is the ASCAP, explains that "16 writer. However, there is also writer's creation (See cents of every dollar that the chance that the writer's Appendix A, clause (b)(ii)). ASCAP collects goes back into songs will become national The publisher requires flexi- ASCAP for overhead. In hits, producing much more bility in marketing the song, 1997, ASCAP distributed to income than the advances and, in order to make it more its members approximately provided for in the exclusive marketable, the publisher $420 million out of $460 mil- songwriting agreement. In may have to change some- ' 49 lion collected. Doyle notes that case, both parties benefit thing. 55 Changes are rarely wholesale, but any change Hit song's net worth: $500,000 still departs from the writer's in public performance royalties original concept. If the pub- lisher expects to market the song in a non-English speak- Songwriter's Share =$210,000 ing country, the contract must also transfer control over V L Publisher's Fee = $210,000 56 the translation of the lyrics. Performing Rights Society's Fee = $80,000 To preserve some creative control, a writer should require that the publisher seek prior approval for any changes. At the very least, By transferring the copy- or political and religious the writer should expect noti- right, the songwriter also causes. (See Appendix A, fication from the publisher of transfers the mechanical clause (b)(iv)). proposed changes. The pub- right. (See Appendix A, The songwriter should also lisher, on the other hand, clause (b)(iv)). This transfer seek prior approval for may only agree to such a pro- For the allows the publisher to mechanical licenses contract- vision if the writer guaran- exploit the mechanical right ed at less than 75 percent of tees not to "unreasonably" songwriter to by issuing mechanical licens- statutorily-prescribed rates. withhold approval. Defining receive es. 60 Before a record compa- (See Appendix A, clause ny like Capitol or MCA can (b)(iv)). Such low rates what is "reasonable" will be income from difficult as each writer likely reproduce a song for retail, it increase profitability to the has his or her own particular this creative must obtain a mechanical at the quirks and sensitivities. If process, license from the copyright expense of both the publisher the writer has any negotiat- owner. "This type of license and songwriter. 65 These ing leverage, a clause that something, or is limited to those who intend "below-rate" licenses are simply requires the writer's someone, to make these recordings attractive to record compa- approval, whether reasonable or available only for private use nies and makes them more unreasonable, is most favorable. must bridge - the kind of recordings [con- willing to produce a song. 6 1 A standard exclusive song- the gap from sumers] buy and take home." The current statutory roy- The mechanical license for alty rate is seven cents per writing agreement will also songwriter allow the publisher the such private use differs from song, meaning mechanical option of registering the to income synchronization rights and licensees pay this sum to the copyright, renewing it, or the synchronization license. publisher per each recording source. 6 6 extending it. 5 7 (See Appendix This latter set of rights con- of a song. Every song A, clause (b)(iii).) While this The music cerns the "right to reproduce recorded on every album dis- right to register is at the pub- publisher the music onto the sound- tributed counts. If a song is lisher's election, it is in the track of a film or videotape in recorded a million times, for publisher's interest to do so. acts as this synchronization with the example, the mechanical 6 2 Registering the copyright bridge. action." Like the mechani- licensee must pay $70,000. protects against any future cal right, it also belongs Unlike public performance litigation that might threat- exclusively to the copyright royalties, music publishers 6 3 en the publisher's income owner. Producers of music must both collect and admin- from the song. videos for MTV or VH-1 must ister mechanical and syn- obtain synchronization chronization royalties, and Mechanical & Syncronization Rights licenses for any songs they then divide out the song- Every songwriter-publish- use, as must television or writer's share. The perform- 6 4 er contract will have a clause film producers. ing rights societies, in con- relating to the mechanical Mechanical and synchro- trast, directly pay the song- rights of the composition. nization rights clauses writer public performance (See Appendix A, clause should require a writer's royalties, separately from the (b)(iv)). The copyright owner prior approval for some uses. publisher. Along with public holds the exclusive right to Though as copyright owner performance royalties, mech- reproduce the song in copies the publisher has total con- anical and synchronization on records, cassette tapes, and trol over the licensing of royalties comprise nearly all of 6 7 compact discs. 58 Normally, mechanical and synchroniza- a music publisher's income. however, the music publisher tion rights, the publishers Many publishers use the issues this right to someone invite ill will if they ignore a Harry Fox Agency for collec- else. When the owner of the writer's wishes for certain tion and administration of 68 copyright grants to someone uses. These uses include mechanical royalties. This this right to reproduction, it is commercials, NC-17 films, agency is affiliated with the called a mechanical license. 59 film opening or end-credits, National Music Publishers Association and represents forming rights, and the right music publisher's right to thousands of music publish- to change the song. Yet the print, publish, and sell vari- ers. 69 It negotiates mechan- publisher, in turn, will often ous print versions of the ical licenses on behalf of pub- forbid the songwriter from songwriter's song. (See 7 5 lishers, collects mechanical assigning his or her obliga- Appendix A, clause (b)(v)). royalties from record compa- tions under the contract to These versions include sheet nies, and distributes those someone else. music, , and royalties back to the publish- This prohibition protects other . The ers. 70 For this, the Harry Fox the publisher, who chose and publisher rarely prints the Agency claims approximately developed the songwriter's song itself. Rather, it licens- four percent from the collections unique abilities and reputa- es others with this right. 76 7 1 owed to the publisher. tion. But the songwriter, who Royalties from printed edi- When publishers use this likewise may have selected a tions of songs form a tiny per- service, a second middle-man publisher for his or her unique centage of the total income a appears between the song- reputation and abilities, could publisher receives. 77 writer and the income source. end up working with an incom- If the print publication The mechanical royalties petent or disagreeable publish- clause does not require from the recording companies er through assignment. If, for writer approval, the publish- must now pass first through example, a different company er can put the song in any the Harry Fox Agency and acquired Carnival, and Carter compilation book with any then through the music pub- remained under contract, her other songwriter's songs, in lisher before reaching the working environment and any theme book or other songwriter. If a classic, hit career opportunities could sig- printed version. If a song- song earns $500,000 in nificantly diminish. mechanical royalties, the Unlike so many music Harry Fox Agency takes its industry issues that are four percent share of $20,000. resolved informally or through The Top Reasons Why This leaves $480,000. After negotiation, contract assign- Songwriters Enter the music publisher takes the ment has tangled parties in lit- standard one-half, the song- igation. In Linzer v. EMI Publishing Deals writer is left with $240,000, Blackwood Music, Inc., the or 48 percent of the song's Four Seasons' publisher To get money up-front in order total $500,000 mechanical assigned its rights to some of to live today royalty income. the group's songs to EMI, a larger publishing group. 73 Assignment of Rights Because of a contract ambigu- The songwriter should be ity, this assignment precipi- To get a record deal aware of the legal effect of an tated litigation over whether assignment of rights. Seasons or EMI con- Generally, an overall transfer trolled the renewal rights of 7 4 To admi ster the of rights will extend to the the songs. It is thus in the business aspects of song publisher's successors, songwriter's interest to allow promotion anidfee collection whomever they may be. (See for contract assignment only Appendix E). The publisher when the new party closely may have the power to assign resembles the original publish- To have the external discipline of working under contract and these contract rights to any er in reputation and ability. with other songwriters in order successor, affiliate, or pur- to create songs chaser. 72 Among others, and Print these rights include the Publication Rights mechanical and synchroniza- Most exclusive songwriter Source: Malcolm L. Mimms, Jr., entertainment attorney in Nashville,TN tion rights, the public per- agreements will include the writer is particularly sensi- ly comes from the mechanical song and bring it to my pub- tive about how the song is royalties, but whatever syn- lisher, the publisher may published, or has sufficient chronization or print royal- help as a sort-of coach or bargaining power, he or she ties exist are also subject to give you a support group to may want to insist on prior recapture. The publisher will promote your name. But the approval in this area. On the also deduct between 50 to songwriter must have self- other hand, approval over the 100 percent of any expenses discipline and make some of too." 8 3 synchronization rights and made on behalf of the song- her own contacts, the use of the song in com- Pepegive writer for demonstration Carter's contract with mercials, movies, and for tapes. 81 This includes paying Carnival, after five years of away that such political or religious causes is a band to play the song for the hard work, shows pays off. likely of more importance to copyrights "demo" tape if the songwriter discipline that a pub- the songwriter. Generally, a is not a skilled performer. Some contend forever in who engages in little new songwriter will only have Only after the publisher lisher be so much bargaining strength order to has recouped the advance song promotion should not to receive the full 50 and must ration it carefully. eat now. money and demonstration entitled costs will the songwriter percent of the royalties, espe- Compensation begin receiving his or her cially if the contracted song- virtue of In return for the grant of share of the royalties. After writer succeeds by and personal these many rights to the administrative fees and the self-discipline 84 But measuring music publisher, the song- publisher's percentage, this initiative. who has contributed what writer receives some combi- share is almost always less to the song nation of the various royal- than 50 percent of the total and how much pitch is difficult and divisive. ties, in addition to monthly income the song has pro- If a songwriter is wary of or weekly advances.7 8 For duced. Manager Fred Kewley she the songwriter in the early asserts, however, that if the publishing companies, -may try to pitch her songs lean years, receiving up- publisher has advanced However, Carter front compensation is the money every year and exploit- herself. that even the song- primary motivation to enter ed personal contacts to pro- explains writer who manages to land an exclusive songwriting mote the song, "the publisher '82 her song on a record rarely agreement. Carter was has earned its share. more money than from relieved to sign a publishing In rare instances, a pub- earns deal. "If you agreement after going it lisher, like Hipp Row a publishing pitch songs yourself, people alone for several years. "It's Publishing in Nashville, will may say they'll put it on their great to get paid to write provide for "non-recoupable album, but to do so, they'll songs," she says. 79 In addi- advances." In this arrange- take [the equivalent] of the tion to advances from the ment, the writer immediately publishing share. '8 5 Thus, publisher, the songwriter begins receiving her share amateur song- will immediately earn money from whatever income the while the may have other good from performance rights, if song produces, rather than writer to form her own pub- the song is successful. 80 This having to repay the reasons com- follows from the performing advances. This method is not lishing company, increased guaranteed. rights societies' method of the norm, however, and is pensation is not option for the directly paying the writer. often limited to single-song- Another is the It will be a while, however, writing agreements. beginning songwriter "single-song agreement." before the writer earns any Carter describes the other royalties. In most process of waiting for the With this agreement, the only commit one cases, the music publisher song to earn income as one of writer need to the publisher. 86 It must first recoup all of the give and take: 'You have to song to test his advance money already give up a little of yourself to allows the writer with the extended. This money most- establish yourself. If I write a or her relationship publisher, without signifi- Despite the appeal of these our check." 95 Still, compen- cant obligations into an alternatives, the exclusive sation disputes that reach unforeseen future. The writer agreement is still the best- the courtroom are rare. thus avoids signing away the suited for songwriters with Everyone in the industry copyrights to future songs. If little legal or industry experi- knows the rules already and the single contracted song ence. Its very simplicity respects them. leads to success, the writer, defuses litigation. As Jim with greater bargaining Harris, an entertainment Between the Tin Pan Alley and power, can now negotiate a attorney in Nashville, puts it, the Top Ten Hit more favorable long-term "there's very little that can go For the songwriter to 92 contract. Because it deals wrong." The basic contract, advance in Nashville, almost with only one song, this distilled from all of the rights every industry insider recom- arrangement decreases the already discussed, consists of mends signing with a pub- odds that the writer will cre- the writer giving up her lisher. Don Biederman's first ate a career-launching hit. songs in exchange for royal- step would be to "get a lawyer Once a songwriter has ties and advances. The pub- or business manager who has become established, there are lisher either pays the writer Generally, an 'in' with the producers and many options for increasing or does not. If the publisher big publishers. ' 96 Of course, the songwriter's share of the fails to make payment, the a new each writer faces different royalties. Forming one's own songwriter can request an songwriter circumstances and each must publishing company may audit of the publisher to decide how best to proceed. If prove most profitable be- demonstrate that the pub- will only have writers can sacrifice and self- cause artists may desire the lisher has received but not so much promote, they should take writer's songs on their distributed the owed income. bargaining the initiative. If not, the pub- . 87 Other methods of This usually forces the publish- lisher is best positioned to 93 increasing the songwriter's er to settle. Very few singer- strength and market the song. The writer can share include the co-publish- songwriter contract disputes then tailor the contract to his or 94 must ration it ing agreement and the pure ever advance to the courtroom. her unique circumstances. 8 8 administration contract. If the publisher refuses to carefully. Songwriters enjoy many In the co-publishing agree- settle, however, the writer benefits by entering into pub- ment, the publisher and can request a court to issue a lishing deals. However, pub- writer agree to share the pub- judgment for the amount lishers also approach song- 8 9 lisher's royalties. Usually owed. Several years ago, writers for the potential eco- the publisher only takes half Jim Harris represented two nomic benefits of someday hit of the normal 50 percent roy- songwriters in Nashville's songs. Mike Doyle of ASCAP alty take. The publisher is Chancery Court. In an unre- describes the publisher's rea- willing to do this with estab- ported case, the court found soning: "There's always tal- 90 lished writers. This leaves that the publisher had failed ent. The publisher takes an the writer with close to 75 per- to account to the writers and economic risk on a writer in cent of the royalties. that the publisher owed near- the early years in order to The pure administration ly $28,000 in royalties. When exploit the mature talents of contract gives the writer even the publisher still refused to the writer in the later more royalties. Under such a pay after the court's decision, years."9 7 Brad Daniel, man- contract, the publisher does Harris took a sheriff and an ager of Island Bound Music not engage in any song pro- empty truck to the publish- Publishing, states succinct- motion. The publisher er's office. They began to ly: "Publishers need writers instead merely renews the load the publisher's furni- to create and writers need writer's copyright and col- ture, computer, and musical publishers to plug. That's lects royalties from the per- equipment into the truck. As why the songwriter-publish- forming rights societies and Harris tells it, "that, surpris- er contract exists. 9 8 Fox Agency. 9 1 the Harry ingly, immediately produced Agents, attorneys, song- writers, and industry execu- lisher."9 9 At the very least, "I'm lucky to be here. tives all agree that Nashville the writer's attorney can pro- Songwriting has been a fun is a publishing town. But vide for an exit provision in and positive part of my life," competition is stiff among the contract if the publisher she says.10 0 As Mimms says: publishers, and writers may does not meet certain per- "Nashville is the last tin pan use this to their advantage. formance standards. While alley in the world. It's the Doyle point out that "there legal and business hurdles only place with hundreds are so many legitimate pub- do exist for the songwriter, upon hundreds of songwriters lishers in Nashville that, if a Nashville clearly remains all being paid weekly to pitch publisher is not treating a the songwriter's paradise. songs. There's no place else writer correctly, a writer can Carter recognized this when like this in the world." 10 1 * leave and go to another pub- she came here and still does.

1 Interview with Carter Wood, songwriter, in Nashville, Tenn. (Feb. 1998). 3, 1999). 24 Id. 2 Id. 25 Interview with Donald Biederman, General Counsel, Warner/ 3 Id. Chappell (Jan. 22, 1999). 26 Id. 4 DONALD E. BIEDERMAN ET. AL, THE LAW AND BUSINESS OF THE ENTERTAINMENT INDUSTRY 233 (1996). 27 Kewley, supra note 19. 5 Id. 28 BOWEN & MIMMS, supra note 14, at 303. 6 Id. at 236. 29 Kewley, supra note 19. 7 Id. 30 BASKERVILLE, supra note 12, at 45. 8 Id. 31 See BIEDERMAN, supra note 4, at 528.

9 Id. 32 PETER MULLER, THE MUSIC BUSINESS: A LEGAL PERSPECTIVE 27 10 Interview with Mike Milom, entertainment attorney, in (1994). Nashville, Tenn. (Feb. 10, 1999). 33 Kewley, supra note 19. 11 Interview with Brad Daniels, Island Bound , in 34 BOWEN & MIMMS, supra note 14, Nashville, Tenn. (Feb. 17, 1999). at 161.

12 DAVID BASKERVILLE, Music BUSINESS HANDBOOK & CAREER GUIDE 35 BASKERVILLE, supra note 12 at 70; BIEDERMAN, supra note 4, at 45 (6th ed., 1995). 529.

13 Id. 36 See BIEDERMAN, supra note 4, at 529; SHEMEL & KRASILOVSKY, supra note 16, at 171. 14 JAY S. BOWEN & MALCOLM L. MIMMS, JR., UNDERSTANDING THE 37 MULLER, supra note 32, at LEGAL & BUSINESS ISSUES IN COUNTRY Music 303 (1997). 28.

15 Id. 38 SHEMEL & KRASILOVSKY, supra note 16, at 178; BASKERVILLE, supra note 12, at 113-14. 16 SIDNEY SHEMEL & M. WILLIAM KRASILOVSKY, THIS BUSINESS OF 39 Id. MusIc (5th ed., 1985).

17 Id. 40 See BASKERVILLE, supra note 12, at 111-14.

18 Id. at 129. 41 See BASKERVILLE, supra note 12, at 111-14; see also BIEDERMAN, supra note 4, at 526; Kewley, supra note 19. 19 Telephone Interview with Fred Kewley, songwriter/artist manag- 42 BASKERVILLE, supra note 12, at 111-14; BIEDERMAN, supra note 4, er (Oct. 12, 1998). at 528; Kewley, supra note 19. 20 BASKERVILLE, supra note 12, at 48. 43 BIEDERMAN, supra note 4, at 528; Kewley, supra note 19. 21 Kewley, supra note 19. 44 See MULLER, supra note 32, at 178. 22 Id. 45 BASKERVILLE, supra note 12, at 115-124; BIEDERMAN, supra note 4, 23 Telephone Interview with Mike Doyle, ASCAP Executive (Oct. 13, at 529. 46 Doyle, supra note 23. 76 See PASSMAN, supra note 51, at 239-40. 47 Daniels, supra note 11. 77 BIEDERMAN, supra note 4, at 528. 48 See BASKERVILLE, supra note 12, at 115-24; SHEMEL & 78 Kewley, supra note 19; Telephone Interview with Malcolm KRASILOVSKY, supra note 16, at 182-98. Mimms, entertainment attorney (Oct. 13, 1998). 49 Doyle, supra note 23. 79 Telephone Interview with Carter Wood, songwriter (Oct. 12, 50 Id. 1998).

51 Doyle, supra note 23; see also DONALD PASSMAN, ALL You NEED TO 80 PASSMAN, supra note 51, at 257. KNOW ABOUT THE MUSIC BUSINESs 215 (1994). 81 Wood, supra note 79. 52 Id. 82 Kewley, supra note 19. 53 Doyle, supra note 23. 83 Wood, supra note 79. 54 BIEDERMAN, supra note 4, at 528. 84 Interview with Steven Lopez, Esquire Management, in Nashville, 55 See MULLER, supra note 32, at 29. Tenn. (Feb. 1, 1999).

56 See id. 85 Wood, supra note 79.

86 See PASSMAN, supra note 51, at 260. 57 Id. at 30.

58 SHEMEL & KRASILOVSKY, supra note 16 at 222. 87 PASSMAN, supra note 51, at 220.

59 See BASKERVILLE, supra note 12, at 125; PASSMAN, supra note 51, 88 BIEDERMAN, supra note 4, at 529-30. at 221. 89 BASKERVILLE, supra note 12, at 70. 60 Id. 90 Daniels, supra note 11. 61 BASKERVILLE, supra note 12, at 125. 91 Interview with Travis Hill, music publisher, in Nashville, 62 Buffalo Broad. Co.. Inc. v. American Soc'v of Composers. Authors Tenn. (Feb. 9, 1999). and Publishers, 744 F.2d 917, 920 (2d Cir. 1984). 92 Telephone Interview with Jim Harris, entertainment attorney 63 Id. (Feb. 5, 1999).

64 See BIEDERMAN, supra note 4, at 528. 93 Harris, supra note 92; Milom, supra note 10.

65 See PASSMAN, supra note 51, at 221. 94 Id.

66 See BASKERVILLE, supra note 12, at 101, 125 (determined by 95 Harris, supra note 92. Royalty Panel under the 1976 Copyright Act); Copyright Arbitration 96 Biederman, supra note 25. Doyle, supra note 23.

67 See PASSMAN, supra note 51, at 221; BASKERVILLE, supra note 12, 97 Doyle, supra note 23. at 74-75. 98 Daniels, supra note 11. 68 See PASSMAN, supra note 51, at 222; BASKERVILLE, supra note 12, at 125. 99 Doyle, supra note 23.

69 SHEMEL & KRASILOVSKY, supra note 16, at 227. 100 Wood, supra note 1.

70 PASSmAN, supra note 51, at 222; SHEMEL & KRASILOVSKY, supra 101 Mimms, supra note 78. note 16, at 227.

71 BASKERVILLE, supra note 12, at 125; PASSMAN, supra note 51, at 222; SHEMEL & KRASILOVSKY, supra note 16, at 227.

72 MULLER, supra note 32, at 30.

73 Linzer v. EMI Blackwood Music. Inc., 904 F.Supp 207, 210-11 (S.D.N.Y. 1995).

74 Id.

75 See MULLER, supra note 32, at 30-31; PAssMAN, supra note 51, at 239-40. All selections in appendix from Jay S. Bowen & Malcolm L. Mimms, Jr.. UNDERSTI NDING TH' LEGAL &:BUSINESS ISSUES 'N COUNTRY MUSIC 161-162 (1997) (emphasis added).

APPENDIX A: GRANT OF & TRANSFER OF RIGHTS INT NG

Grant of Rights. (a) Writer hereby irrevocably grants, sells, assigns, transfers, sets over and delivers exclusively to Publisherand its successors and assigns Writer's interest in those musical compositions set forth on Schedule A hereto and those musi- cal compositions and works which may hereafter, during the term hereof, be written, composed or created by Writer, in whole or in part, including the titles, words and music thereto (such musical compositions and works being referred to herein individually as a "Composition" and collectively as the "Compositions"). The foregoing assignment, trans- fer and sale of the Compositions includes, but is not limited to, the following: the exclusive rights in and to all copy- rights therein for the universe, and all rights, claims and demands in any way relating thereto: the exclusive right to secure said copyrights throughout the entire universe and to have and to hold said copyrights for the full term of said copyrights; the exclusive right to secure and hold any renewals or extensions of said copyrights; the exclusive right to have and to hold all rights of any nature whatsoever now and hereafter existing or existing under any agreement or license thereto, or existing under any law now in existence or which may come into existence under legislation hereafter enacted. All of the rights granted shall exist for and during the full terms, U.S. and international, of all such copyrights, including any renewals or extensions thereof ...

(b) Without limiting the generality of the foregoing, Writer hereby acknowledges and agrees that the rights and interests assigned, transferred and sold as set forth hereinabove shall include, without limitation, Writer's irrevoca- ble grant to Publisher, its successors and assigns, of the sole and exclusive right, title, license, privilege, and author- ity throughout the entire universe with respect to all of the Compositions. as follows: (i) To perform and license others to perform the Compositions publicly or privately, for profit or otherwise, by means of public performance, radio broadcast,television, or any and all other means of media, whether now known or hereafter conceived or developed:

(ii) To substitute a new title or titles for the Compositions or any of them and to make any arrangement, adapta- tion, translation, dramatizationor transpositionof any or all of the Compositions or of the titles, lyrics or music thereof, in whole or in part, and in connection with any other Compositions or outside compositions or new music to the lyrics, or new lyrics to the music, of any Compositions. all as Publisher may deem necessary or desirable in its best business judgment. it being understood and agreed that any change in the title, lyrics or music, or any dramatization of any or all of the Compositions wil be subject to Writer's prior approval which approval will not be unreasonably withheld:

(iii) To secure copyright registration and protection of the Compositions in Publisher's name or otherwise, as Publisher may desire, at Publisher's own cost and expense, and at Publisher's election, including any and all renewals and extensions of copyright under any present or future laws throughout the world, and to have and to hold said copyrights, renewals and extensions and all rights existing thereunder, for and during the full term of all said copyrights and all renewals and extensions thereof: (iv) To make, or cause to be made, and to license others to make, master recordings, transcriptions,, pressings and any other mechanical, electrical or other reproductions of the Compositions, in whole or in part, in such form or manner and as frequently as Publisher shall determine, including without limitation the right to syn- chronize the Compositions with sound motion pictures, and to use, manufacture,advertise, license or sell any such reproductions for any and all purposes, including without limitation private and public performances, radio, phonograph records and any and all other means or devices, whether now known or hereafter conceived or devel- oped. Notwithstanding the foregoing, any license of a Composition(s) in connection with the following usages will require the Writer's prior approval, which approval will not be unreasonablywithheld: commercials,films with an MPAA rating of NC-I 7, any film opening or end-credit use, first-use mechanical license at less than 75% of the statutory rate, any so-called "merchandising"use, any exclusive license for a term of more than (3) three years and any usage in connection with political or religious causes. In the event the writer enters into an agreement for his services as a recording artist with a record company whose product is distributed by one of the major U.S. distri- bution companies, Publisher agrees to issue licenses in compliance with the controlled compositions clauses in such agreement. (v) To print, publish and sell, and to license others to print, publish and sell, sheet music, Orchestrations,arrange- ments and other editions of the compositions in all forms, including without limitation the inclusion of any or all of the Compositions in song folios, compilations, song books, mixed folios, Writer's personality folios and lyric mag- azines with or without music, (vi) Any and all other rights now or hereafter existing in all Compositions under and by virtue of any common law rights and all copyrights and renewals and extensions thereof, including without limitation the grand rights and so-called small performance rights. A11F1NDIX 11: 1LN1TQ,011JATBUJ$MY Pbihragrees tSouse its reasonable business endeavors to commaercially exploit the opstos

Royalties Payable to Writer.

-AVWrter salrcive his public pesrformAnce throughout theNorld dir ctly from te perming rightsoc- ety-' withl wxhich he is affiliated, aInd sha:ll ha'lve no claim11 wha"tsoever aga'inst Publisher for an: ryatesreeie by Pu blish e from any perf.society which makes pa.ent dir.c.ty (or indiroctly othe than through P+ublisher)t("'twres i hor s,and . .

APPE""NDlI X I":,-IME'CHALNI CAL RQHYAL'' E 4 Rto'yalties Pay able to Writer. Pubiser gresto pay to) Writer roalie s provided below. The sums- -set forth below, whichever arc appylica ble, repeset Pblihers ntire, obiato o pa-1y Writer for the, publiaton and exploitatJion by Publisher of the Compos itions, including) title, wvords, and MUSIC: ()Ffypret(50%;) of:many.and all' net1 sumiI s actuall Y receIived by Pullbisher In th e UnitIed Sttes,- fromt t'hef ex ploitai- I on in the Unite-d States and Canadan bylnse of, m(chanical reproduction rights, grand rights.-, electrical tran- srption andj reproduction1 rights, motion picture an elevisio sy'nchoiainrgtdaaiainrgt n l oth i her ei

APP1'X""D\ AVIk \MFAT OF HMICHTS' As,,ign me nt Pubisershall1 have the rig"ht toasg hi gmnctn any of its right1s hereunlde.rtofaparent, usday raft under (except Writer',s right to receive royavlties) nor deleg'ate his duties- hereunde'r. In aIll other respects, thi's Agreement salbe binding, upon the prihreto and the-ir respective sucwces';sors in) inter'est, he"irs, leates xecu- tors + administrators legalrepresentativesand assigns