by Jeffrey & Todd Brabec
The co-publishing agreement is one of the most important contractual arrangements in the music industry. It gives the songwriter a share of certain rights and income that he or she would not be entitled to under the standard writer-publisher contract.
For example, under the terms of an exclusive songwriter contract, the writer transfers the copyright of a song or songs to the music publisher and is paid 50% of all earnings received by the publisher from those songs. Under the terms of the co-publishing agreement, however, the writer sells and transfers only a portion of the copyright and retains the other portion for his or her own publishing company. More importantly, the writer receives not only the standard 50% songwriter share of all earnings but also a portion of the 50% that is normally reserved to the music publisher (the so called "publisher's share of income").
As a general rule, the co-publishing arrangement is usually available primarily to writers who have a successful track record of past hits, writer/ performers who have the potential of securing a record deal, writers who have a current recording artist contract, writer-producers and any other writer who has the bargaining power to negotiate such an agreement with a music publisher.
There are a number of basic sets of circumstances which lend themselves to the signing of a co-publishing agreement. The first is where the writer has had a number of hits while signed as an exclusive writer to a publisher and the contract is approaching its expiration date. Considering the writer's past success, the current publisher (or another competing publisher) will offer a co-publishing arrangement for all future compositions (and possibly past songs also) as an inducement to re-sign or sign as an exclusive writer.
Another situation that often occurs is where the successful writer already has a music publishing company and a major publishing company wants to sign the writer. Under such circumstances, the major company will normally agree to a co-publishing arrangement in order to get the right to publish the songwriter's past and future compositions.
A third situation is where a writer-artist has a recording contract with a major label. In such a case, a publisher will always be willing to enter into a co-publishing agreement with the writer/recording artist, since the publisher knows that the recording artist will release self-written material and there will be guaranteed commercial exposure of the songs.
A fourth common situation is where a writer has signed a single-song contract and the song becomes a major hit. Such a writer, because of this success, will have the necessary bargaining power to negotiate not only an exclusive songwriter's agreement but also a co-publishing agreement with a major publisher for all future songs.
Sharing of Income
One of the most important aspect of the co-publishing agreement is how the songwriter and music publisher share the income that is earned from CD and tape sales, videos, performances, motion picture and television synchronization rights, commercials, downloads, and all other sources of revenue generated by a writer's songs. The most common sharing of income arrangement is known as the "50/50 split." This equal sharing of income (50% to the writer's company and 50% to the major company) refers only to those monies that represent the music publisher's share of earnings. It does not relate to the writer's share, since the songwriter will still receive his or her 50% songwriter's royalties regardless of the terms of the co-publishing agreement.
For example, under the standard music industry publishing contract, the writer is entitled to 50% of the net income earned from uses of the songs, and the publisher entitled to the other 50%. For example, if a total of $100,000 in royalties is paid by a record company to the music publisher for the sale of CDs or audio cassettes, the publisher would be entitled to keep $50,000 and the songwriter would receive $50,000.
Under the co-publishing agreement, however, the writer receives not only his or her 50% share of songwriter income but also receives a portion of the music publisher's share. If we keep our previous example of $100,000 received by the publisher from CD and tape sales and assume a "50/50 split" co-publishing arrangement, the total income received by the writer would be:
|(50% of $100,000)|
|$25,000||Songwriter's Share of Publisher Royalties|
|(25% of $100,000)|
As can be seen, the songwriter is entitled to 50% of all monies received as a songwriter, with the writer's publishing company and the major publisher sharing the remaining 50% of income equally. In effect, the writer and his or her company receives 75% of all monies earned, and the major publisher receives 25%.