Now You Know Everything About Music Publishing

  • Save

This is the fifth installment of an 11-part series on music industry agreements by attorney and legal author Steve Gordon, author of The Future of the Music Business (Hal Leonard 4th Ed 2015).  Steve’s earlier installments covered contracts for indie producerssynchronization licensing, management contracts, and production contracts (from hell).

The fifth installment of this 11-part series on basic music industry agreements focuses on music publishing. Before discussing the basic forms of agreement, I will answer these basic questions:

  • What is music publishing?
  • What is publishing income and what are the major sources of that income?
  • What is a publisher, and why would you need one?

1. What Is Music Publishing?

Publishing is the commercial exploitation of a musical composition — not the recording.  At seminars, I usually hold up a CD to demonstrate the difference between songs or “musical works,” as the Copyright Act refers to them, and the recording that contains them, i.e. “sound recordings.”

At my last presentation at the New Music Seminar, I brought an album by the great jazz musician, Thelonious Monk.  The label on the CD shows that Columbia Records is the record company.  It also shows the titles of each song contained in the CD. The recording is owned by Columbia Records.  Monk transferred the rights in his performance to Columbia when he signed his record deal, and Columbia Records owns the copyright in the recording.

But Columbia did not gain the rights in the songs.  For instance, “Ruby, My Dear,” written by Monk, is one of the songs included in the album.  Columbia owns Monk’s recording of the song, but not the song itself. A publisher called Music Sales currently administers the rights in this song on behalf of Monk’s estate. The money that flows from the administration of the rights in that song, or any songs, is called publishing income.

2. What are the Major Sources of Music Publishing Income?

The major sources of publishing income are public performance royalties, mechanical royalties, and sync fees. Each is explained below. The next biggest source of publishing income, although tiny in comparison with the first three, is sheet music.

Public Performance Royalties

Any user of music that publicly performs a song must secure a license and pay a royalty to do so.  Songwriters and their music publishers use Performing Rights Organizations (PROs) to collect these royalties.  In the U.S. there are three: ASCAP, BMI and SESAC.  A fourth PRO, recently launched by music industry mogul, Irving Azoff, is Global Music Rights or GMR.

The PROs collect public performance royalties from radio, television, the Internet and other users of music, such as nightclubs and concert halls. Last year, ASCAP and BMI collected approximately one billion dollars each. As of 2014 SESAC’s revenue had grown to $182 million (from $167 million the year prior).

Mechanical Royalties

Mechanical royalties are the monies that songwriters earn from the inclusion of their songs on records.  The mechanical royalty rate is set by a tribunal called the Copyright Royalty Board pursuant to the Copyright Act.  The current rate is 9.1 cents per song per copy of each record sold (unless the song is longer than five minutes in which case the rate is 1.75 cents per minute or fraction thereof).

This means that if a record containing one song sells a million copies, the “stat” rate would add up to $91,000. With respect to interactive streaming services, such as Spotify, the rate is 10.5% of gross income minus what the service pays to ASCAP, BMI and SESAC (approximately 6%).

Sync Fees

A sync refers to the synchronization of a musical composition in an audiovisual work such as a movie, TV show, commercial or video game.  The amount of money for a sync placement varies widely depending on the nature of the project and the identity of the song.  For instance, use of a classic pop hit in a major motion picture or TV ad campaign can fetch well over six figures.

On the other hand, I recently represented a young producer/songwriter who was paid $12,000 for composing new music for a 30 second beer commercial.  The use of an indie writer’s song in a basic cable show could garner just a few hundred dollars, or nothing at all except public performance royalties paid to the writer by her PRO.

Sheet music

Sheet music used to be the primary source of publishing income. However, although sheet music now includes digital as well as physical media, it represents only a small fraction of total publishing income.


Altogether, these sources added up to approximately six billion dollars in 2014 worldwide.  That amount is only slightly higher than the amount earned ten years ago.  Accounting for inflation, publishing income has eroded.  The major reason is that record sales have declined dramatically, and consequently mechanical income has sharply declined.

3. What Is a Publisher?

A publisher is a company that collects the income we discussed above on behalf of the writer.  Generally, the publisher will take 25% to 50% of the writer’s income.  Why would a writer give up all that money?  There are various reasons.  The most important ones are explained below.

Advances and Royalties

Advances are upfront payments that are usually made to the songwriter to induce her to enter into an exclusive deal in which the writer gives up the right to exploit her songs or license others to do so.  For instance, I recently negotiated a publishing deal between a major publisher and a producer who created a beat (which is a musical work as well as a sound recording) for a major record label artist.  The publisher offered $150,000 as an upfront advance. Advances are recoupable against royalties.

The amount of the royalty varies depending upon the type of agreement. The publisher’s share is 50% in a traditional publishing deal and generally 25% in a co-publishing deal (see below).  The songwriter does not receive a royalty payment until the publisher “recoups,” that is, when the amount of monies earned from the writer’s songs exceeds the amount advanced to the songwriter.


Publishers provide administrative services such as registering songs with the U.S. Copyright Office and collection societies in the U.S. and throughout the world.  They also negotiate deals and get the best fees, because they are aware of the going rates for various songs in diverse projects.  For instance, if a major ad agency wants to use a song in a national campaign, the publisher is in a better position than the writer to negotiate the most favorable terms because the publisher is aware of what similar songs have received in similar circumstances.

The publisher will also do its best to collect all of the monies generated by a song from all sources (with the exception of the writer’s share of performance monies which is paid directly to the writer by her PRO).


The publisher is also supposed to exploit a writer’s songs and find opportunities to generate additional income.  For instance, publishers may encourage producers or artists to re-record the writer’s songs.  These re-recordings are known as “covers,” and can generate a great deal of additional money.  For instance, Whitney Houston’s cover of “I Will Always Love You,” which was written and originally recorded by Dolly Parton, was a much bigger hit than the original record.

The publisher will also try to get songs placed in motion pictures, television shows, video games and ad campaigns as well as ancillary uses such as greeting cards and toys.

Foreign Income

Publishers have foreign affiliates that collect the money earned by a song in other countries.  Major publishers, such as Sony ATV and Warner Chappell, have offices all over the world.  Small publishers can also administer the rights in their songs throughout the world by using “sub publishers.”

Suppose a European singer re-records a song, and it’s a hit in Benelux (Belgium, Holland and Luxembourg).  A writer needs someone on the ground to collect monies from record sales, radio play and streaming in those countries.

Basic Publishing Agreements

The basic types of agreements that songwriters sign with music publishers are:

  • Individual or Single Song Agreements
  • Exclusive Term Agreements
  • Co-Publishing Agreements
  • Administration Agreements

Single Song Agreement

Under this agreement, a writer transfers the copyright to one song or a limited group of identified compositions to a publisher. In return, the writer receives a portion of the income earned from uses of that composition or compositions, usually 50%.

Because the individual song contract applies only to the song or songs specifically included in the agreement, the writer can go to a number of different publishers with other songs and give each one only those songs that the writer is interested in promoting.

Exclusive Term Agreement

Under this deal, which was the most common kind of agreement for many years, the songwriter agrees to assign the exclusive right to administer all compositions that he writes during a specified term, for example, 1 or 2 years with several options that the publisher can use to extend the term of the agreement for additional 1 year periods.

Sometimes the term is the longer of a period of time or delivery of a certain number of songs.  The writer agrees to assign the copyrights in every song that he writes during the term.  The publisher keeps the copyright in each song even after the termination of the agreement.  (Under the Copyright Act, however, the writer or his estate has the right to terminate the assignment after 35 years).

All publishing income is split on a 50-50 basis, although the agreement may allow the publisher to deduct defined expenses, such as the costs of producing demos.  Generally, as discussed above, the publisher pays a songwriter an advance at the beginning of the contract which is recoupable against the writer’s royalties.  Additional advance payments are usually due if the publisher exercises options to extend the contract.


This form of agreement is basically the same as the traditional exclusive publishing agreement except that the writer only assigns 50% of the copyright in each song he writes during the term to the publisher, and the writer generally gets to keep 75% of the publishing income (that is, 100% of the “writer’s share” and 50% of the publisher’s share).  This model became the standard form of deal as singer songwriters such as Bob Dylan, James Taylor and Simon and Garfunkel became more successful and thereby gained more leverage.

An example of a typical co-pub deal is the second agreement included in this article. It is a form used by a major music publishing company. The annotations, which contain suggested changes, demonstrate that an experienced legal adviser is essential when negotiating a publishing deal.

Administration Agreements: Under an administration agreement, the writer retains the copyrights in his songs. The publisher only receives the right to administer a composition or group of compositions for a specified period of time (e.g., 3 years, 5 years, etc.). In return for its services, the publisher usually receives an “administration fee” of from 10% to 25% of all income earned during the term of the agreement.

This form of agreement is seldom offered to new writers and is generally reserved for writers who have already had great commercial success.

Sync Rep Deals

A variation of a normal publishing agreement is a sync rep deal.  It’s much more likely that a new or emerging songwriter will encounter this form of agreement than a full-blown publishing deal.  Sync rep deals usually do not offer up-front advances and involve companies who specialize in ‘shopping’ songs, including instrumental and lyric versions, for use in movies, TV shows, ad campaigns, and video games.

In a sense, these deals are publishing agreements because they involve the exploitation of musical compositions.  But unlike true publishing deals, these agreements are intended only for the exploitation of the songs in audiovisual works.  They usually do not authorize any other exploitation of the song, such as collecting audio mechanicals or licensing sheet music, or collecting public performance royalties from radio play.

Of course, there are variations and exceptions.  For instance, a sync rep license could include the right to license a song for an audio soundtrack accompanying a movie which includes the song.

It should be noted that there are certain sync reps who will attempt to secure all rights in a song – just like a publisher would. That deal should be avoided, unless the rep is able to exploit songs in all media, as a normal publisher would.  In other words, some sync reps “pose” as publishers.

In a standard sync rep deal, the writer grants the rep sync rights in songs that are mutually approved by the writer and the rep.  The term is generally limited to one or two years, with automatic renewal terms, subject to cancellation by either party.  Again, there are exceptions to this standard structure.  For instance, some sync reps will want a longer term or even perpetuity in its right to exploit a song.  Generally, however, all sync reps will want the right to enter into perpetual licenses during the term of the agreement. So, for instance, a sync rep will be able to license a song during the term to a movie producer to use that song in the movie in perpetuity.

The most important issue in negotiating or signing a sync rep deal is exclusivity versus non-exclusivity.  Sync reps who offer exclusive deals usually give these three reasons to justify exclusivity:

    1. Confusion as to whom to pay: The argument is that the writer’s PRO may not be able to identify the correct party to pay.  In a sync rep deal, the sync rep will usually be listed as the publisher of the song and is paid directly by the PRO.  If there is more than one publisher, the PRO may not know who to pay.  This argument is rebutted by advocates of non-exclusive licenses who argue that, when the song is registered with a PRO, a suffix can be added to the title such as ”Blue Skies — #1,” “Blue Skies — #2, etc. The cue sheet reporting the use of a song in an audiovisual work, which all the PROs require, can identify the correct title and the right publisher will be paid.
    2. Motivation: The argument is that exclusive publishers will be more motivated if they have exclusive rights in a song.  The non-exclusive reps will argue that first, this is not necessarily true.  Moreover, if the rep loses interest in a writer’s songs, the writer has no chance to make money from his songs.                                                                                   
    3. Value Reduction: The argument is that a licensee may cause two sync reps to compete against each other and offer a discount thereby decreasing the value of a song represented by two different companies.  The non-exclusive reps will argue this is not the case, as licensees such as ad agencies and music supervisors value their relationships with the reps they work with on a regular basis and would not jeopardize those relationships by going around a trusted rep to get a cheaper price for the same song.

In terms of compensation, sync rep deals vary from company to company.  Fifty percent is not unusual.  But some companies provide better terms to the songwriter.  For instance, only taking 20% to 25% and paying the balance to the writer.  That percentage is usually based on gross income, including sync fees and public performance monies generated by the transmission of audiovisual works on television or the Internet.

An example of a non-exclusive sync rep deal with annotations follows below.

Music Licensing Representation Agreement

And, here’s an example of a more standard publishing agreement.

Publishing Agreement

Steve Gordon gratefully acknowledges the assistance of Ryanne Perio in the preparation of this article. Ryanne is a graduate of Columbia Law School. She is currently an associate at Wilmer, Cutler, Pickering, Hale & Dorr, where she focuses on intellectual property litigation. He would also like to thank Alexandra Howard (Columbia University, BA 2017) and Evan Becker, Esq. for their assistance.

Top image by David Pacey, licensed under Creative Commons Attribution 2.0 Generic (CC by 2.0).

13 Responses

  1. Mike Corcoran

    Hi Steve,

    great article and information, got a quick question for you.

    We always hear about how it’s a big part of the publisher’s job to exploit songs for TV/Film. Let’s say a Publisher owns the song “Sweet Child O’ Mine” by Guns n’ Roses, and they want to place the song in a movie. Wouldn’t the record company Geffen Records own the sound recording of “Sweet Child O’ Mine”, and in order for the song to be used in the movie, the TV/Film producer would need clearance from Geffen as well as the Publisher? How does that work, does the Publisher grant its composition license, and also work on getting the sound recording license from Geffen, or does the TV/Film producer do this? The larger question is, if the Publisher only controls half of a specific song (the composition), how can they exploit their songs without controlling the other half?



    • GGG

      To the first question, yes, labels negotiate a separate master use fee.

      To your last question, labels have to license songs from songwriters/publishers to even make master recordings. That’s why controlled composition clauses exist, to not have to pay out as many royalties for their own stuff. So you’re sort of wrong in that the publisher only controls half a song; they control all of it. They just don’t control specific recordings, which brings us back to the answer of question 1. And labels have every right to turn down offers. Hence why you see bad movies and unauthorized documentaries with no original recordings.

  2. DavidB

    I’m not clear from the article about the position on mechanical royalties from recordings when the composer/songwriter is also the recording artist. This is surely a very common situation ever since the 1960s, when the singer-songwriter (Dylan, Paul Simon, etc) and the band-songriter (Lennon-McCartney, Brian Wilson, etc) came to prominence. The article refers to singer-songwriters, and implies that they would normally have a co-publishing agreement, in which the publisher takes a 25% instead of 50% cut. But does this apply even to the mechanical royalties, which are coming from exactly the same source (the record label) as the ‘sound recording’ royalties? If so, this seems both inefficient (as there is no obvious need for payments to be channeled through an intermediary) and unreasonable. For a publisher to take a 25% (let alone a 50%) cut of the composition royalties a singer-songwriter receives from their own recordings seems to be the very definition of money for old rope.

    Or alternatively are mechanical royalties in this case excluded from the publishing agreement? I have seen various references to ‘controlled compositions’ (e.g. in a Future of Music Coalition analysis of recording contracts) but the role of the publisher (if any) is not discussed. It is said that in the case of controlled compositions the songwriter usually receives only 75% of the statutory royalty rate, and it is implied that the songwriter is being cheated out of 25%, but if in fact the mechanical royalties in this case do not go through a publisher, taking a 25% or 50% cut, the songwriter is no worse off, and may be better.

    • Mechanicals

      I’m not aware of any publishing deal excluding mechanical royalties. Your point has merit but keep in mind that there is a strong distinction between a composition and a recording – you make it sound as if the publisher is an intermediary between a singer-songwriter and his/her label where in theory it is really is the source of copyright, granting a license to labels to use a composition, even if the publishing deal is signed AFTER the recording agreement. And to this article correctly explains how ultimately there may be various labels using the composition over its lifetime (covers, compilations, ringtones, etc). A publisher would have zero incentive in signing a publishing deal where it couldn’t enjoy any margin on the mechanical income.

      Where I really agree with you is that this becomes a poor practice when the label and publisher are the same company (e.g. the majors all have label and publishing arms) – in which case the company practically double dips on the income due to the singer-songwriter.

      • DavidB

        “you make it sound as if the publisher is an intermediary between a singer-songwriter and his/her label where in theory it is really is the source of copyright”

        Er, no, under copyright law from the Statute of Anne onwards, the source of copyright is the author. The author (or composer, etc) may assign some or all of his/her rights to a publisher, but I see no earthly reason why he/she should do so in the case of mechanical rights for his/her own recordings. It would be like sending coals from Newcastle to London via Berlin.

  3. Literat X

    If you have {34} tracks and the original distribution agreement is for only nine tracks and all 34 tracks ends up on a label you never transferred any publishing rights to and that label sells the full masters to a media company like lets say ‘ Yahoo ‘ for example and Yahoo performs and reproduce all 34 songs in 19 country–territories , what kind of administration agreement is that?

  4. clarification

    I did a co-pub deal for a song awhile back; and after 5 years renewed. I assumed for that song (retitled) they had 50% royalties for perpetuity, meaning they will collect their perf. royalties even if i didn’t renew because they placed the song. but now i’m wondering if i don’t renew, does that mean royalties they were collecting from placement terminate after the agreed upon time (when the 5 years are up?)

  5. 4sure

    I got a song back in the days around August 11,2011…and the song was signed with a record label online in Spain.And the Record Company promised me that,they would be paying me Royalties.They later send an Agreement Contract form to sign.I later signed the form and sent back over to them.
    unfortunately,the record company failed to pay me my royalties.
    I later know that,my song were really topped chart in some of European country .
    Please,if there is anybody or entertainment lawyer that can help me to fight this out.I will be very happy

  6. frankie(n)

    very informative and educative;every artist or songwriter needs to read it

  7. What's His Face

    100% Totally Wrong.

    Although the record label publisher may be on the side of making money from a musical composition through commercial exploitation, the moment a musical composition is recorded, put on a CD or published to an internet website in the form of a digital file, to be sold, your musical composition is officially published.

    You do not need a corporate publishing house to publish anything you do, it is just one avenue, and one that usually leaves you with no right to self publish.

    noun: publishing

    the occupation, business, or activity of preparing and issuing books, journals, and other material for sale.

    In Conclusion: It is time to educate yourself an never take some person’s “published article” as true or truth!

  8. c for charlie

    I was courted by a publishing company to license my music.
    They wanted 100% ownership of my copyrights and perpetuity.
    I spoke to soooo many people about this, because that seems wrong. And most agreed that you did not have to do that.
    Needless to say, i declined.

    Reading the above article, it makes it seem like you are suppose to give ownership over to the publishing company for licensing. Is that the way it really is?

  9. Greg

    Great article as always, I have a really simple question.

    When a composer signs a cue to an exclusive sync rep / administration deal, and he wants to use the song in a short film he created, does he need a license from the publisher? Or can he use it freely since he still owns the copyright and recording?

  10. Ziggy Gonzalez

    Thank you Steve for all your invaluable insights. I buy your books and enjoy them very much 🙂