The Songwriter
We begin with the songwriter. The "songwriter" may be a lone writer or a collaborative team. For the moment it does not matter, although we will deal with collaboration arrangements later on. The writers have a song, and they do not perform, so they need someone else to record it. The writers think Bonny Raitt would do this song very nicely. They have tried and tried but they cannot get the song to Bonny Raitt. Nor have they been able to get the song to Bonny Raitt's personal manager or record producer, or to her lawyer or accountant or chauffeur or dry cleaner (all legitimate targets). They are stuck. They have no access. They need someone with access. Traditionally, that someone has been a music publisher.
A music publisher's job
is to make as much money
from a song as possible.
Music Publishers
A music publisher's job is to take a song and make as much money with it is as possible. In addition to securing the first commercial recording of the song, the publisher should try to more fully exploit the work, that is, have the song used as many times and in as many ways as possible.
Consider for a moment the many possibilities for exploitation that exist today. There are "cover" recordings by different artists. Songs are used in films, TV programs and advertising. Different arrangements are made for "wired music" services such as Muzak ®. In the field of printed music there are more than 100 ways to market a song. There are "piano copies", which is the trade term for plain sheet music. There are special arrangements for different instruments, for beginning or more advanced students, for marching bands, jazz bands, choirs or barbershop quartets. There are large folios with themes like "Christmas Hits" or "Hits of the '70s". Songs have been printed on coffee mugs and shower curtains. "Singing" microchips have been embedded in greeting cards. And while we are now seeing songs licensed for performance or distribution via the internet, people are still buying music boxes and rolls for their old player-piano rolls. Not only are all these avenues of exploitation available, but the publisher can have songs translated and sell all these same items in different languages around the world.
Licensing is the means by which the publisher does all these things. A license is a contract, granting someone a limited right to use the song in a particular way. The license does not change the ownership of the song. The publisher is still the owner the song, even if hundreds or thousands of licenses are granted. It's something like the case of a landlord who owns an apartment and rents it to a tenant. Renting the apartment - giving the tenant certain limited rights to it - doesn't mean that the landlord has given up ownership of the apartment.
Each kind of use of music requires a different kind of license. Many of the different types of licenses will be discussed in more detail later on. The publisher's job is to negotiate the terms and conditions of the license and make sure the licensee fulfills all of its obligations. What sort of obligations does a licensee have? One very important obligation is to pay the required fees or royalties, in full and on time. Another obligation might be to give the writer and publisher appropriate credit on album liner notes, or in the credit roll at the end of a film. If a licensee continues to refuse to pay royalties, this may mean the publisher bringing a lawsuit.
The publisher must also protect the song. Someone may use the song without permission and without paying a fee. Someone may copy from the song in trying to write their own song. Again, these kinds of situations may force the publisher into the courthouse.
In order for a publisher to exploit a song, the songwriter must first give the song to the publisher. This is done by means of a song publishing contract. And when you sign such a contract, in most cases you do literally give up legal ownership of the song to the publisher. The publisher now has legal title to the song and can do with it as he pleases, subject only to the promises made to you in the song publishing contract. One of those promises is to pay royalties. Even so, many writer are shocked to learn that once they sign a song publishing contract they no longer own the song and have little or no say in its destiny.
Traditionally, publishers have not only worked with songs but with writers as well. They find talented young writers, pay them a salary, give them an office and piano (or, today, a keyboard and MIDI gear) and work with them as editor, parent, friend, coach, analyst and whatever else it takes to turn them into great songwriters and keep them that way. Fewer publishers seem to have staff writers than in the past, but the job is still the dream of many songwriters. When one is a staff writer, the situation is "exclusive": everything written during the contract period (and sometimes before) must be turned over to the publisher and cannot be given to anyone else.
The Songwriters Guild of America
Located between the writer and the publisher is the Songwriters Guild of America, the first of many agencies in the music business. The Guild was founded in 1931 as the Songwriters Protective Association, and was later known as the American Guild of Authors and Composers, AGAC, which is how many old timers still refer to it. It received its current name in the early 1980s.
For various reasons, American courts have held that songwriters cannot form or belong to regular labor unions. There is no collective bargaining with the publishers. The Guild is something less than, but also more than, a union. It is a trade association and spokesman for songwriters on important issues. It lobbies Congress for legislation favorable to songwriters, and sometimes becomes involved in litigation that is important to songwriters. For individual writers it offers royalty collection and auditing, copyright renewal and termination, health and life insurance, administration of writer-owned publishing companies, and songwriting classes and workshops (if some of these phrases are mysterious to you, they will be explained later on). The Guild has also published a form of song publishing contract which is more favorable to the writer than the kind ordinarily offered by publishers. Many publishers will not sign the Guild contract, but the contract is useful as a goal for writers to work toward. The Guild will also review a contract offered by a publisher to show how it may fall short of the ideal. There will be considerable discussion of the Guild's form of contact later on.
The Guild has some competition, notably the National Academy of Songwriters and the National Academy of Popular Music, which is affiliated with the Songwriters Hall of Fame. While these organizations offer classes and workshops and serve as advocates for songwriters, they do not offer the kinds of legal and business services offered by the Guild.
ASCAP, BMI and SESAC
These organizations exercise the "performing right" of their members, who are writers and publishers. Copyright has often been referred to as actually being a "bundle" of several rights, and one of these is the right to perform a work in public. The owner can prevent such performances if he likes, or he can grant licenses to public performers of his work and charge royalties for the privilege. The biggest public performers of music today are TV and radio stations, as well as such public places as concert halls, restaurants, night clubs, taverns, skating rinks, shopping malls, and many other similar establishments. This right is sometimes called the "small performing right" to contrast it with the "grand performing right", which refers to the right to make dramatic performances of such works as operas, ballets and musical theater works. Grand rights are not part of the business of ASCAP, BMI and SESAC.
Performing rights organizations arose because it would be virtually impossible for a writer or publisher to go to all those places referred to above and individually enter into licenses for the public performance of their music. Similarly, it would be extremely difficult for a radio station to locate and contact all the writers and publishers of all the songs they played. So these clearinghouses were established to do licensing in bulk. When a radio station signs a license with ASCAP, in exchange for the payment of license fees, it acquires the right to publicly perform every song represented by ASCAP, which today numbers more than 3 million. The arrangement is similar for BMI and SESAC.
These three organizations are in competition with each other and a writer can only belong to one. However, nothing prevents a writer belonging to one organization from co-writing songs with writers belonging to the other organizations.
ASCAP stands for the American Society of Composers, Authors and Publishers. ASCAP is the oldest of the three organizations and was founded in 1914, when the main public performers of music were hotels, restaurants and concert halls. ASCAP is an association of songwriters and music publishers, and is run by a Board of Directors composed of an equal number of each. Since it began, ASCAP has paid royalties directly to both its writer and publisher members. Ordinarily, writers receive all their royalties through the publisher, so the performing right royalty is unique in that it does no go to the writer through the publisher.
BMI stands for Broadcast Music, Inc. BMI was founded in 1940 by radio broadcasters who were fed up with paying license fees to ASCAP. In fact, the broadcasters' ire at ASCAP was such that for a brief time there was actually a boycott of ASCAP music, and all you could hear on the radio was Beethoven and Bach. The boycott didn't last long, but the broadcasters brought in their own songwriters and formed their own organization. Despite such antagonistic beginnings, over the years the forces of competition have made ASCAP and BMI more similar than different.
The third organization, SESAC, is far smaller than ASCAP or BMI. SESAC was a privately owned company, and its traditional base was in religious and country music. In recent years it has come under new ownership and aggressively explored market niches neglected by ASCAP and BMI. It remains, however, an extremely distant third to ASCAP and BMI.
Many interesting tales could be told of the competition between these organizations, but this would be a digression. Nor would it be proper to express a preference for one over the others. Each organization has a staff whose job it is to sell their organization, and the best advice is that you should make an appointment and let them do just that. The worst reason to join an organization is because your first potential publisher tells you "I'm with X." All good-sized or respectable publishers have affiliated companies so they can accommodate writers from all organizations. A publisher who works with only one organization is cutting itself off from half the writers in the country. Also, you will work with many publishers in your career and shouldn't let the first one dictate your choice on such an important decision. Your decision should be based on your discussions with the representatives of each organization and your own needs and preferences.
The Harry Fox Agency
Just as the Songwriters Guild is a middleman between writers and publishers, the Harry Fox Agency is a middleman between publishers and record companies. Fox (Harry is long dead) is an affiliate of the National Music Publishers Association. It's main function is to serve music publishers by issuing licenses to, and collecting royalties from, record companies that record the songs controlled by the music publishers. Fox also audits the record companies to make sure the payments are accurate. In addition, but to a lesser degree, Fox issues licenses for the use of music in television and film. Fox used to be the only licensing middleman for publishers, but now it has competition from such companies at The Clearinghouse and the Mary Williams Clearing Corp.
These are the main actors and agencies in the music business of concern to songwriters. We now turn to what, for many writers, is the first type of paperwork encountered, the copyright registration forms.
