Music is used in every area of the entertainment field, whether it is records, whether physical or digitally distributed over the internet, films, television, radio, video games or ring tones. The music publisher generally owns or controls songs or rights in songs, including the copyright. The copyright in the song is a separate and unique bundle of rights. The publisher plays the key role in determining how, when, where and on what terms the songs are used. The writer is the creator of the song, the publisher is the party who owns or controls the copyright in the song. A writer may be his or her own publisher or may assign or license the copyright or publishing rights in his or her songs to another who will act as the publisher of the song. Music publishers and writers earn income from the following sources:
- Mechanical Royalties: Royalties earned from mechanical licenses the principal source of their income. Customarily, mechanical income is equally divided between the writer and the publisher. “Mechanicals” are monies derived from the use of the song in devices serving to reproduce the composition mechanically, i.e., compact discs.
- Performance Income: Anyone performing the song, whether live, by broadcast or otherwise, must secure a license from the publisher or the agents.
- Synchronization Income: The exclusive right to control the synchronization of a song with visual images, i.e., the right to control uses of a song in a film or television production is a separate and distinct right belonging to the publisher under the Copyright Law. Synchronization income, like mechanical income, is generally collected by the publisher and divided equally between publisher and writer.
- Print Income. The exclusive right to print and distribute copies of a song is one of the fundamental rights owned by the publisher. Due to the expense of printing and distributing sheet music and folios, most publishers license their print rights to one of the major print companies that specialize in printing music. The publisher customarily receives a royalty from its print licensee on printed editions
In a Music publishing contract the questions to be kept in mind while drafting the contract includes the following:
- What are the rights passed to the publisher?
- Will the writer retain certain rights?
- Is the writer going to be paid for the future exploitation of his/her music?
- Who owns the copyright?
- What are the consequences to be faced if the writer or the publisher fails to comply with agreement?
- Who will have the final say in terms of marketing or promotion of the music?
- Who has the responsibility to obtain required licenses and clearances?
- How will the amount of the royalty payable be computed?
- What are the writer’s warranties with regard to claims made by third parties against the music, such as for copyright infringement?
- What are rights of the parties after termination of the agreement?
The parties to the contract should have a broad vision about what may happen to the work over the course of its publishing lifetime. The contract should deal with all those potentialities.