Licensing Negotiations Vary Between Publishers

by Jeffrey and Todd Brabec

Under the U.S. Copyright Law, the songwriter and his or her music publisher have approval rights over the first recorded and released version of a newly written composition (i.e., a "first use" mechanical license).

If a writer is a recording artist, he or she will many times restrict the publisher from granting such first-use licenses on any self-written compositions to other recording artists until a decision has been made as to whether or not a particular song will be recorded by that writer.

In effect, the writer/performer is claiming the sole right to decide whether to record a song on his or her own album, and the publisher may not promote or license the song to anyone else prior to either the writer/artist's recording being released or the writer/artist's decision not to put the song on the album.

Because writer/artists need the best songs possible for their own albums, such restrictions are very understandable, and most music publishers will agree to them.

There are many variations in the resolution of these types of negotiations, with some publishers giving the writer/artist total approval rights over which songs are to be restricted, and others limiting the number of songs that may be "held" during any one period by the writer/artist.

The following is just one example of such a provision:

"Publisher further agrees that, in the event Writer notifies it that Writer requests that a "first use" mechanical license not be issued for a specified Composition, Publisher shall consult with Writer on such request; it being agreed that Publisher shall have the final decision as to whether such a license shall or shall not be issued. Notwithstanding anything to the contrary contained above, in the event that Writer had entered into a recording artist agreement with a Major Record Company and Writer requests that Publisher not issue a first-use mechanical license to a third party for a Composition being recorded pursuant to said recording artist agreement, Publisher agrees to comply with such request provided Writer has given written notice of such to Publisher, that no more than five (5) such Compositions are so restricted at any one time (unless all such Compositions are to be embodied on one (1) Album in which case up to eleven (11) such Compositions may be restricted), and that such restriction shall not apply to any commitments made by Publisher prior to its receipt of said written notice from Writer. It is further agreed that such a "first mechanical license" restriction shall not be effective for a period in excess of nine (9) months from the date of Writer's notice."

This article is based on information contained in the new, revised paperback edition of the book "Music, Money, And Success: The Insider's Guide To Making Money In The Music Industry" written by Jeffrey Brabec and Todd Brabec (Published by Schirmer Trade Books/Music Sales). www.musicandmoney.com