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FROM THE DESK OF... SHELLY HARRIS |
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by: Shelly Harris / Entertainment Attorney
QUESTION: I am a songwriter currently in the process
of getting a publishing deal for several of my songs. I am already registered with ASCAP, so what else will I need
to do to get to get my percentage of any royalties? Also, the publisher is asking for 50 percent of the
publishing royalties, and various other percentages of other types of
royalties for synch licensing, records pressed, and mechanical licensing.
Is that standard? Do I need
to form my own publishing company, and, if so, do I need to incorporate
it? ANSWER: First off, the
publisher getting 50 percent of the publishing royalties IS standard; you
and any co-writers would then split the remaining 50 percent of the
publishing royalties amongst yourselves.
The publisher will have no percentage of your actual songwriter’s
royalties – you get 100 percent of those, or split them with any co-writer(s).
You will need to be registered as both a songwriter and a publisher
at one of the performing rights organizations, and you will have to form a
paper publishing company to receive your share of the publishing
royalties. It is also best if ALL of the publishing companies, including
your own, and ALL the songwriters of any one song are all registering that
song with the SAME performance rights organization like ASCAP, etc.
Keep in mind that those royalties are for the “public
performance” of your song(s) on radio, clubs, or other public places,
and that there ARE other types of royalties such as those that you
mention.
The other royalties
are often negotiable regarding percentages, or whether the publisher even
gets a take in them at all. For
example, it is not mandatory – though it is lately common practice –
for publishers to want to take a share of the royalties from an artist’s
share of a recording contract. In
other words, they might want to take a share of the royalties you would
receive for each unit sold. The
question to ask yourself is: What
does the publisher promise to do for me or for the promotion of the song
that would be worth giving up any share of any royalties?
If they are actively promoting and shopping your songs, and are
required to do so in contractual language, then it MAY be worth it,
depending on specific circumstances.
I would have to know the specific amounts being negotiated for the
various types of royalties outside the performance royalties to determine
if you are being offered a fair deal.
However, regarding
your publishing company: As
long as it is only a “paper” business/company, and you are not
actually doing real business of any kind under the publishing company’s
name, it is not necessary to form a corporation, LLP, or LLC.
You may have to open an account at the bank under the name of the
publishing company to cash any royalty checks coming in to you via the
company name, but that usuually just means filling out “doing business
as” forms at the bank, and opening a new account.
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