When a publishing company decides to include a songwriter’s song in its catalog, it negotiates a contract with the writer that includes provisions, terms and conditions that are mutually agreed upon by the writer and publisher as fair and equitable. These items of inclusion are often viewed from the standpoint of the writer, but arriving at what is fair and equitable for the publisher needs some analysis as well.

A publisher must, even before a contract with a writer is signed, first decide if the material presented to it is worthy of the publisher’s acceptance. One way of deciding on the song is when the demo is played for the publisher for the very first time and whether or not there is an instant liking of the tune. Does the song, in other words, grab and hold the attention of the listener? The publisher reasons that the general public may react in the same way and accepts or rejects the song using this as a basis.

The publisher also looks at whether the songwriter has had past successes since songs are also bought by the general public simply on fan appeal. Platinum-selling artist/songwriter/producer Babyface, for instance, would have no trouble in getting his material accepted by any publisher in the world simply because his material is actively sought out by his many fans. Just putting his name on a project attracts millions of his fans to purchase the productions.

Along the same line, publishers decide to sign up a songwriter and his composition based on what artist they feel will likely record the song, or what producer they can get to produce it. Publishers also need to know before accepting a tune is whether the song fills a particular need in their catalog, or whether the song has a quality to it that for years to come will have others clamoring to re-record it.

The final criteria sounds more like an act of desperation, but some publishers use the “best of the worst” scenario in making their decisions. If the publisher has spent most of the workday dredging through a pile of CDs that feature one reject after another, is there at least ONE song that stands out above the others thus making the day worthwhile?

Once a publisher has located the song it wishes to utilize, contract talks begin with the writer or writers. After the writer states his interests and has the necessary clauses and terms included to protect his rights in the song, the publisher then does the same thing.

One of the main provisions that a publisher demands to have incorporated in the contract is to have “clear title” to the song. This is done to ensure that no one else can make a claim of ownership to the song. Without this provision, a publisher could conceivably accept a song from someone who claims they wrote or owned it, then find out later that someone else has made a claim of ownership on it and is threatening to sue the publisher if it does not relinquish control of it.

To safeguard against such an occurrence, every song submitted to a publisher goes through a “copyright department” that does a search of the records on file at the Library of Congress which hold the official registration forms of all copyrighted material. These records list any and all claimants to a song, as well as list how the song may have passed from one person to the next, such as in an inheritance. Searching out ownership of a song is THE most important function of the copyright department, but it also registers copyrights for the publisher and keeps track of the requests to re-record a song the publisher has called “mechanical licenses.”

Mechanical licenses got their name from the early days of the phonograph industry when acetate, shellac, and then vinyl were used to store the music that the public would eventually buy. There was a mechanized cutting stylus used in making these discs that simply became known as the “mechanical” process. When someone requested to cover a tune, they were issued a written piece of paper by the Harry Fox Agency (HFA) authorizing them to cut their their own version of the record. HFA was established through the National Music Publishers Association to handle all matters concerning the issuing of mechanical licenses. By the way, although the process of manufacturing CDs uses a laser today instead of a cutting stylus, the “mechanical” name still endures out of tradition.

A publisher also seeks in his contract with the writer the exclusive right to record, distribute, and sell CDs of the song as well as collect money from those efforts. They also seek to have the exclusive right to prepare arrangements of the work, make copies of it and to distribute them. The publisher also wishes to have the right to assign any of the functions just listed to another person or company to do the same.

Other provisions that publishers insist on being included in the contract with the writer are the right to issue “synchronization licenses” and collect the money from that. A “synchronization license” allows the user to place music in a movie, TV show, CD-ROM or any other visual medium.

The publisher also may be want to negotiate certain items in the contract such as the right of first refusal on any new material the writer may compose while under contract; the right to extend the contract through options; the right to cancel the contract if the writer defaults; the right to deny the writer an audit of the company’s accounting books without properly requesting it in advance; and the right to go before an arbitrator to settle any disputes with the writer.

Please remember that the information presented here should NOT take the place of adequate counseling. Please review all the matters discussed written here with proper legal representation and consultation before deciding upon which terms, clauses, or provisions to include or exclude.