This Article Originally Published May 1999
by Donald Passman
I am now about to save you an enormous amount of time and frustration in setting up a publishing company. The tips I'm giving you here, revealed in print for the first time, were gained by yours truly through a series of hard knocks that will become obvious as you see the proper way to do it.
The Absolute First Thing To Do
Before you do anything, and I mean before you do anything, you positively must take this first step: Affiliate you company with ASCAP or BMI. The reason you have to do this first is that these societies won't let you use a name that's the same (or similar to) the name of an existing company. They don't want to accidentally pay the wrong party, and so they're tough about the name you can use. And you don't want to have label copy, printed music, copyright registrations, and everything else in the name of a company that can't collect performance royalties.
You can affiliate and secure your name by completing an application and giving the society three name choices, ranked in order. That way, at least one of the names should be clear. If you're also a songwriter and haven't yet affiliated, you should affiliate as a writer with one of the two societies at the same time (they won't let you affiliate with both.) You'll have to affiliate as a publisher with the same society that you affiliate as a songwriter. This is because the societies insist on having a song's publisher affiliated with the same society as the song's writer. And for this same reason, if you're going to be a "real" publisher (meaning you're going to publish other people's songs, as opposed to only your own), you'll need to have two companies, one for ASCAP and one for BMI.
The publishing company affiliation forms are pretty straightforward; they ask you who owns the company, the address, and similar exciting, provocative questions. You also need to give them information about all songs in your catalog (writers, publisher, foreign deals, recordings, etc.), so they can put the info in their system and make sure you're properly credited (read "paid"). You can get affiliation applications by contacting ASCAP or BMI at the following address and telephone number:
320 West 57th St.
New York, NY 10019
10 Music Square East
Nashville, TN 37203
8730 Sunset Blvd.
3rd Floor West
Hollywood, CA 90069
One Lincoln Plaza
New York, NY 10023
2 Music Square West
Nashville, TN 37203
7920 Sunset Blvd.
Los Angeles, CA 90046
And get started early it can take about five weeks to get an approval. Here's a tip in picking a name. The more common your name, the less likely you're going to get it. So steer clear of name like "Hit Music" and similar choices that, because they're obnoxiously obvious, won't clear. Names using just initials, such as "J.B. Music" and the like, also seem to have a hard time clearing (so save that concept for your license plates). For some reason, many of my clients enjoy naming their publishing companies after their children or their streets, and those seem to clear routinely. (For the record, I once owned a publishing company, "Holly Kelly Music," that I named after my dogs.)
Setting Up Business
If you're not a corporation using the corporate name, the next step is to file what, in California, is known as a "fictitious business-name statement." This is a document filed with a county recorder and published in a newspaper, and it has its counterpart in most states. It tells the world you're doing business under a name that isn't your own and makes it legal to do so. At least in California, you need this statement to open a bank account and, even more importantly, to cash checks made out to that name. You can imagine the screaming phone call I got as a young lawyer when I learned this lesson.
Next, register the songs with the Copyright Office in the name of your publishing entity. If the songs were previously copyrighted in your name, you need to file an assignment transferring them to the publisher's name.
To the extent you didn't do so when you originally affiliated, you must register all your songs with the performing rights society. The societies will send you the forms, which are self-explanatory. You only have to register the songs as either the writer or the publisher, not both.
After that, you're in business. You can begin to issue licenses to record companies and other users, as well as make foreign subpublishing agreements, print deals, and so forth. However, there's no particular need to rush into these deals, nor will anybody be interested in making them, until you have a record released. In fact, unless you've got a record coming out (or some other exploitation, like a film or TV show using your songs), the societies won't even let you affiliate, and frankly there's not much point in doing any of this. You'll just be all dressed up with no place to go.