PG Music Home Forums General Discussion Off-Topic Publishing Predicament

Hello all

I am hoping to get some savvy advice from the folk here. I signed a three year publishing agreement with a local publisher Sheer in May 2015 so now I have a chance to make some changes.

I have not received a cent from these publishers in the three years (and only one statement with Zeros all over it...) nor have they ever contacted me regarding any "opportunities or offers" for my songs.

So I looked at "doing my own publishing" and I don't even know right now what this entails but it looks like there are huge admin hoops to jump through to get this done. I contacted Sheer about "not renewing" my publishing contract and they have asked that I supply a complete schedule of all the songs I have written, along with co-writers and splits, in the three years...more admin for what return I do not know....I have written probably over 200 songs and instrumentals in the last three years.

What to do that involves the least admin and headache:

1. Do I just leave my Sheer publishing contract as it is "in case" anything ever goes big/gets selected at SongTradr/ gets played on the radio?

2. Do I cancel my Sheer publishing contract and just not have a publisher?

3. Do I do the admin to set up myself as my own publisher?

4. Do I find another publisher?

I do wish this was simple....Any advice is much appreciated.

Ahhhh the pains of being signed to a long term deal.

I'm guessing there was no obligation for you to place songs with them since you were an uncompensated writer, and not a "Staff" writer. There is a big difference. For example, I have publishing deals with companies but I'm not obligated to send them anything and they have no claim over any of the songs I write or where I place them. A careful reading of the contract will let you know if this is the case.

So....read the publishing contract carefully...again. Does it say that "anything you write" while signed belongs to their catalog? If yes...You may very well be obligated legally to have provided them with every song you wrote in the past 3 years....depending on the clauses in the contract of course.

Unless you were being paid by them to write songs for them, which doesn't sound like it is the case, you probably have no obligation to provide the admin BS they are asking you to give them.

Read carefully on how you are to terminate the deal. If you have to write a letter 30 days prior to the ending date and have it delivered my certified mail in triplicate..... you better comply with the cancellation terms. As far as leaving it "AS-IS"..... READ THE CONTRACT AGAIN CAREFULLY. Does it automatically renew if you don't do anything? Do you want to stay tied to a company like that for more 3 year terms? You might indeed just want to let it roll over.... see my comments further along about leaving it as is.

Self publishing.... you really don't need to set up a legal entity and jump through the hoops UNLESS, you are going to set up a publishing house to handle other writers too. In the USA you can be a self publisher without setting up a business. SA might be different. Here, when you register a new work with your PRO.... in my case BMI... I have to assign the writers share equal to 100% to me and share it with any cowriters. There is also a section for the Publishers 100% share and if it's a commercial publisher getting the song published, they get 100% of that amount. If I'm self publishing, I get 100% of the writers share AND 100% of the publishers share. I keep it all.

To clarify..... 100% of the song's total royalties due is divided 50/50 between writer and publisher. Of the 50% for each.... that is considered to be 100% of the writer or publisher share respectively.

If you have the contacts to get your songs into the hands of the producers and artists, and have the time to do that part of the business, you can certainly self publish the music you write. No laws against it. Most folks use publishers and libraries because it's easier and frees us up from having to do that leg work plugging our own songs.

I use libraries and a few publishers. I have not canceled any of the publishing deals or libraries I'm in now. While the original term is long up on several, I leave the music there because there is always the possibility that one day, a producer will hear something of mine and think it's the perfect cut for his TV show or movie..... then I get a check.

Unless your contract says you are legally obligated to Sheer and Sheer alone..... ( doubtful ) you are free to sign with other publishers and libraries. My songs are with several different publishers and at least a dozen film and TV libraries. Just be careful with ONE THING. Never, never assign a song to more then one company UNLESS they are all NON-EXCLUSIVE libraries. If you sign a song with any exclusive publishers or libraries..... basically, consider that song GONE for ever unless you submit the paperwork to recover that song. So when using exclusive pubs, be very certain that they can deliver the goods because you can't plug that song to anyone else without referring the new person or company back to the original company. And you can't use that song personally either..... legally.

If you CANCEL.... be sure to understand their and your rights regarding the stuff you wrote during the time with them. DO they own the publishing rights on that music or does it all revert back to you regardless of when it was written? If it reverts to you.... be sure you go to your PRO ....ASAP and remove Sheer from the publishing. That ensures if something does go stratospheric, you get both shares unless Sheer retains rights to the stuff you wrote and were legally obligated to place with them. If they retain rights, be sure to give them the accounting of the copyright or date of creation or they can sue you for failing to disclose works that you wrote while signed to them.

Gee, isn't the music business fun?

Hope you get this sorted.

edit: I think I answered all of the questions you have... maybe not in the correct order.

Herb's email is so great and thorough and thoughtful.

I would add, if you can, let an attorney read it and advise. It would be worth a few hundred bucks.

In the USA you generally set yourself up as your own own publisher if you can. I think Herb said this.

ASCAP recommended I do this and so did a music lawyer.

So, at ASCAP I have a publishing ID and a songwriter ID with a 50/50 split equaling 100%

Why?

Well according to ASCAP (as I understand it), many buyers are set up to pay publishing and songwriter royalties, and if they don't see a publisher ID they *may* only send you 50% and the publishing money will get left sitting around. This part always seemed a little murky to me though, Herb can maybe clarify. Still, ASCAP told me the best platform is to have a publisher ID and a songwriter ID so I did it, and that is how I submit all of my songs, and register them. It is also how I submit to SongTradr.

The biggest thing is though, a music lawyer here told me to NEVER sign a publishing deal with anyone unless they are like, Sony, and promise to do X, Y, and Z for you and have a proven track record. He also said" "Don't bother coming to see me after the fact if you have already signed it."

So, it sounds like that firm has done diddly squat and you need to get out clean. Be careful though. I am sensing the "you need to talk to a lawyer" vibe. If there is a statuatory damages clause in there and you make a misstep in the severance they could sue you for a lot of money even if you haven't made any. That is their racket.

So, my advice is, show it to a lawyer, dot every i as you cancel, and never talk to another publisher again unless they are helping you with a 7 figure record deal.

Herb, please correct me if I have been wrong anywhere.

David and Herb.

Somehow I just knew the two of you would help me with this. Thank you so much. You are both absolute stars!

I never knew that you could assign the publishing for just one song. That is great to know.

I think the thing for me to do is terminate this contract immediately. The contract does say “everything you write for the duration of the contract”. They have asked for a schedule of songs and a letter of termination so I will do that. Most of them are already registered on SAMRO (our South African performing rights Org) anyway so it is just a matter of registering what hasn’t already been registered and exporting the whole lot out to Excel. They will then give me a letter of termination.

I can then go forward with the “self publishing” option and if anything ever takes off, look at individual publishing deals for individual songs. I have heard that SAMRO is in a “mess” have collected millions but have no idea who to distribute it to. If this is true I guess the chances of making any money out of the publishing of my songs is slim anyway.

Herb, you said: “Most folks use publishers and libraries because it's easier and frees us up from having to do that leg work plugging our own songs”.

If I could find somebody to do the leg work I would be happy but I can’t help wondering if anybody here anybody here ever made any “real” money from this and how much “admin” is involved?

David: “The biggest thing is though, a music lawyer here told me to NEVER sign a publishing deal with anyone unless they are like, Sony, and promise to do X, Y, and Z for you and have a proven track record. He also said" "Don't bother coming to see me after the fact if you have already signed it." And “never talk to another publisher again unless they are helping you with a 7 figure record deal”

Savvy advice to ALL!!!! Take note!

My first step then is to submit the documents Sheer wants and get a termination date from them.

I really just want to carry on writing, performing and releasing my music (through Songtradr) and also submitting the songs to licensing opps via songtradr as and when they arise. It is easy and fun and I want to do this with as little headache and admin as possible. The first year of doing this (plus those 200 odd songs…) can be written off to “school fees”.

Now off to do the admin to get that termination date….

Update: I found an email that I sent them in October 2017 where I had cancelled the contract because they had not sent me any accounts since the contract was signed in May 2015.

So hopefully they will provide me with a termination date of in October 2017, which means that all the tracks I have composed since then will fall outside the publishing agreement.

Edited to add: I had to laugh when I phoned them and spoke to the guy who has been emailing me about my termination. When I said "This is Joanne Cooper phoning" he said "Who??"

"My first step then is to submit the documents Sheer wants and get a termination date from them."

No. Your first step should be to consult an attorney before you even speak with Sheer again.

When you stated, The contract does say “everything you write for the duration of the contract”. That clause is something that sounds to me you will likely have to address before you terminate. Why would you choose to provide them evidence they can use against you in a contract dispute?

Written contracts do not have to be fair. They have to be specific, agreed upon in writing and signed by all parties. An insurance policy is a good example of a one sided contract as is a rental lease.

You are facing terminating a contract that was conceived by attorneys working exclusively for the record company and likely more than one attorney worked on it. That contract is based on previous case law and has been litigated numerous times which over the years and has surely resulted in changes, clarifications and fine tuning strictly for the benefit of the company not the artist.

Point taken. Thank you Charlie.

I did read through the contract thoroughly just under a year ago when it became clear that they were never going to do anything for me. (That is when I sent the cancellation emails).

Let me just see what they come back to me with for the termination date. If it is October 2017 then I probably will go with that. If they don't then I will definitely consult a music lawyer. .

Does the contract address what happens to the songs you wrote while under contract AFTER the contract expires?

It has to be in there somewhere stating that either they get to keep control or the song ownership is returned to you.

If they are asking for an accounting, it's likely because they get to keep all the stuff you wrote. But you need to check.

All the contracts I have signed have a reversion clause in them. Essentially, the publisher OWNS the song I signed to them...BUT.... they are obligated to have it published within the time frame of the contract. If the publisher fails to have the song released commercially, they have failed to live up to their part of the deal and at the end of the term, I can write to request the song rights be returned to me. I have had to do this on several occasions. The courts recognize your right to ownership if the publisher fails to keep their part of the deal. HOWEVER.... this clause has to be present or the publisher can argue that you gave up all rights to the song in perpetuity. And you would essentially be SOOL as they say.

If they get to legally keep the songs..... my advice.... learn from it and move on.

Regarding having others do the leg work..... take the time to find a few online libraries and start placing your original music with them. You have to own 100% of the rights or have the authority to place the song from the co-writers.

I have one song that the publisher wanted...and he wanted it exclusive. My co-writer on that tune refused to give his consent to the exclusive deal. That song missed a possible film placement as a result. That's the kick in the butt with co-writers.

Thanks Herb
I have contacted a music attorney and sent him a copy of the original contract as well as my email terminating the agreement. I will see what he says and keep you posted.

I was about to post this, and treat ANY publisher that way. Add some time limitation in case there are no periodical results booked, or also reports on their promotional efforts, per submitted song, thereby forcing them to do some "work for their (your) money" ... F

Thanks guys. A quick update. I consulted an attorney and he told me something I did not know and that is that if a party cancels the contract due to non performance of the other party (which is what I did in October last year) then both parties should be returned to the situation as if the contract had never been signed. So in that case the copyright on the songs revert to me. I am in the process of removing them as publisher on all my songs.

Very good. Glad you got it worked out.


Be careful, and since this was a learning experience, I'm sure you will be in the future. Take time to read the contract carefully. A good reference contract for single songs is provided by the Songwriters Guild of America. It checks all the boxes needed to protect the writer. Use it to compare with the contract you're being asked to sign by any publisher.

https://www.songwritersguild.com/site/index.php/developing-songwriters/sga-contract

read all contracts one paragraph at a time so you understand it.... and if you don't understand something.... don't ask the publisher....ask someone else.... such as a music attorney to explain it to you. The cost is minimal compared to the aggravation of being stuck in a bad contract deal.

Glad you're clear on it now.