Could Publishing Agreements work for the Artist ?
From reproductive labour to AI, how can we recoup the cost of making music ?
Source: https://twitter.com/mahalia/status/1674762204648808449?s=20
It so said to see one of your favourite UK R&B artists, not generating income from her contribution to music. For my course, I wrote an essay analysing Exclusive Songwriter Agreements from the perspective of female songwriter.
My essay is cis-het heavy and doesn’t include the nuance of transmisogny, which I need to learn more about in the context of music. I wanted to share this because, I think we need to have feminist perspectives in evaluating contracts agreements.
Disclaimer
Before reading this I would encourage you to check out Musicians Union Specimen Publishing Agreement, to understand key terms. I am not giving legal advice, just sharing my opinion, please please speak to a lawyer before signing anything.
Introduction
So you are about to sign your first exclusive songwriter agreement (ESA) with your dream Publisher, but just as you take your pen out of your bag you notice your feet might be getting cold. What do you do next ? Hopefully reminding yourself of this article, providing pros and cons for new British Female Songwriters.
Before we assess the pros and cons, let's ensure you understand the basics of copyright laws in the UK. Copyright Designs & Patents Acts 1988 enshrines in law how works such as songs, books are copyrighted. As songwriter, you are viewed as the author of lyrics providing you ownership of works and moral rights as to how your original works are used. When you sign an exclusive songwriting agreement you allocate economic rights to the publisher to generate income. In return you give away to the publisher a percentage of sync, publishing, mechanical royalties for the duration of your term and retention periods (Musicians Union, 2021).
Cost and benefit of advances
According to the ISM a retention period which can be up to 15 years depending on the size of your advance (Incorporated Society of Musicians, 2023). Plus publishers can also collect royalties during your agreed collection period length. Exclusive songwriting agreement also includes advances which “are non-returnable but are recoupable from royalties” (Musician Union: 2023) The terms of an ESA are decided during negotiations between you (Entertainment lawyer) and the publisher before signing. Before even reading the rest of this article, ensure you have an experienced entertainment lawyer representing before signing any agreement. In addition, you are signed with PRS for music, a royalty collection society who distributes publishing royalties directly to you (PPL, 2023).
Advances are guaranteed income however the long-term economic value of rights exploitation might not cover rising social care and reproductive costs. Creative dexterity can really be impacted by your social-economic reality. For a new songwriter without a catalogue you are likely to be paid “25-30k up to 100k” in advance (The Wrd, 2023). Advances should provide you with a basic income to support needs such as accommodation, travel and food. On top of this you can also argue for a drawdown fund to cover work related expenses. The alternative to working without a publisher is being a songwriter for hire. Your income would depend on hiring demand, which can sometimes be precarious if you lack contacts or experience within the music industry. Having a set income via an advance rather than freelancing can help you to better financial plan for the future and present needs.
Reproductive Labour & Misogyny
On the other hand, as a female songwriter you are likely to experience the consequences of reproductive costs if you decide to have children. Childcare costs have sky-rocketed so much that according to Pregnant Then Screwed “a staggering 3 in 4 mothers (76%) who pay for childcare, say it no longer makes financial sense for them to work.”. You possibly may either negotiate more in our advances or find alternative streams of income to supplement the costs. Pregnant mothers also found that “1 in 3 (32%) parents who use formal childcare say they had to rely on some form of debt to cover childcare costs'' (Pregnant then Screwed,2023). Bear in mind that you will have to recoup advances payment by ensuring songwriting royalties generate enough for your minimum commitment within the option and terms periods agreed in the ESA. Essentially requiring me to work twice as hard. It may even be hard to ensure your song-contributions are even acknowledged during the song-splits process. During the Parliamentary inquiry into Misogyny within the music industry evidence cited from Women in CTRL & Why Not Her Collective shared that when women do have hits, they are often still second-billing, or not even credited” (Music Ally, 2023). Grammy award winning songwriter-producer duo Nova Wav, shared recently they nearly missed out on production credits for a film about Female Music Producer that they had worked on (SXSW, 2023). Implying that misogyny couldn’t impact your ability to be recognised and compensated for your work even if you are signed to a publisher.
Furthermore, not only are you impacted by reproductive costs but also social care. Signing a ESA doesn’t give employee benefits such as employer pension contributions and sick days. To note, some publishers like Sony have created mental health assistance for Songwriters (Paine. A, 2022). But sadly, this is not common practice. Randy Travis, a prolific Nashville songwriter, ended up selling his catalogue rights to help pay bills during his later years. At 79 years, Travis had to turn to the internet via Go-Fund Me to raise funds due experiencing homelessness because of the increasing cost of housing. Although this Travis is American, sadly in the U.K according to research by musicians Union “Too many working musicians will face retirement with little or no independent pension provision” (Class Online, 2012). You need to be 100% sure to be happy with the advance sum, as there is a possibility of either not paying the fund back or having alternative careers to financially invest in a pension.
Where the money resides ?
The potential rewards of the ESA can pair well with diversifying your portfolio and creating financial resilience, taking your career to the next level and securing your longevity. On the other hand, low streaming royalties rates and the impact of AI are making it harder to recoup royalties. As an individual signing an ESA, you are essentially scaling your trade of songwriting with a publisher. Signing the contract means “courts expect businesses (you and the publisher) to understand the legal effect of documents that they sign and commit to” (Hall Ellis Solicitors, 2023) . Implying signing a ESA means you and the publisher understand the risks and rewards. Experienced songwriter managers Jamie Zeluck Hindlin who’s roster includes hits for Megan Trainor, Jason Mraz and XXXTenacion; describes a good publisher “strategically setting up sessions with other songwriters and producers, who can help change a songwriters life and knowing the types of rooms to set up” as well as provides “access to the creator team”, who will pitch songs with record labels, provide creative feedback and ensure they get cuts (Herstand, A., 2022)(Farris, S. 2020). Murda Beats and Nova Wav, songwriter-producers signed to Warner Chappel have been able to work on deals for half a million dollars with American Express. Alongside songwriting for Warner Chappel, Murda Beats and Nova Wav have business’ such as selling beat packs on splice to fashion lines (SXSW, 2023). Diversifying your investments such as an ESA helps to provide you with financial agency. Good financial management requires you to be financially resilient having “the ability to cope financially when faced with a sudden fall in income or unavoidable rise in expenditure”(ONS, 2020). Suggesting as a songwriter today, you can’t put all your eggs in one basket.
Streaming and AI
Considering the low streaming pay-outs and impact of AI on songwriting suggest that it is even more difficult to recoup your advance, therefore by signing an ESA you could be left with a lot of debt. The UK Government found that in order to make a sustainable living out of music you will need to make a minimum of one million UK streams per a month in addition to non-uk streams and other sources of income (Intellectual Property Office, 2021). Bear in mind 100,000 songs get uploaded to DSPs every day, making DSP visibility extremely competitive (William, 2022). On top of this songwriters are now competing with AI take for instance David Guetta recently used a Chat-GPT and other AI tools to create songs featuring an Eminem like verse and voice (Independent, 2023). Implying that not only could we see songwriters being side-lined for AI but possible copyright violations of existing work. In order for a tool like Chat-GPT to understand what a song like Eminem would sound like it would need to be trained on his verses. Getty Images is taking the makers of mid-journey (AI image generator) to court as for “unlawfully copying and processing millions of images protected by copyright and the associated metadata owned or represented by Getty Images absent a licence to benefit Stability AI’s commercial interests and to the detriment of the content creators” (Vincent, 2023).
Another way to look at AI’s impact on songwriters could be creating a tier effect between average and great songwriter as argued by Guy Moot from Warner Chappell Music (SXSW, 2023). Although the music industry is saturated, you could argue you can do more with a publisher like Warner Chappell Music who nurture relationships with AI companies and lobby for better songwriter rates from DSPs rather than being a lone ranger. But similarly to not keeping your eggs in one basket for income streams you could do the same with a publisher by signing an admin or single songwriter agreement to test the waters.
Summary
In summary, I have outlined the nuances within the pros and cons of singing an exclusive songwriter agreement for new female British songwriters. Pros include being able to take your career to the next level, publisher advocate and having a predictable income via advances. Cons include the risks of not recouping funds due to low streaming pay-outs and financial cost of reproductive labour and retirement.
Bibliography
some references, I have had to remove as they part of course and membership content I can’t share publicly.
Class Online (2012) The working musician, Class Online. Available at: http://classonline.org.uk/docs/dha-MU_The_Working_Musician_webV.pdf (Accessed: March 19, 2023).
Farris , S. (2020) The Role of a Music Publisher, Leeds Conservatoire. Available at: https://www.leedsconservatoire.ac.uk/student-life/performance-industry-opportunities/musicians-survival-guide/ (Accessed: March 20, 2023).
GDS. (2015) Invoicing and taking payment from customers, GOV.UK. GOV.UK. Available at: https://www.gov.uk/invoicing-and-taking-payment-from-customers/payment-obligations (Accessed: March 17, 2023).
Intellectual Property Office (2021) Music creators’ earnings in the digital era. Available at: https://www.gov.uk/government/publications/music-creators-earnings-in-the-digital-era/executive-summary&sa=D&source=docs&ust=1679314081121999&usg=AOvVaw2xzn-f4mOKM_2DfHfPODKc
Hall Ellis Solicitors (2023) Contract Law Basics: Making a Legally Binding Contract (and when it’s not), Legally Binding Contracts & Terms: Basics of Contract Law. Available at: https://hallellis.co.uk/contract-law-basics-formation/ (Accessed: March 20, 2023).
Herstand, A. (2022) How songwriters get publishing deals and hit songs, Spotify. Available at: https://open.spotify.com/episode/12HyVJ9Czlf3jB3smrd9ek?si=d72a4f5d43754b2d (Accessed: March 18, 2023).
Incorporated Society of Musicians, (2023) Publishing agreement reference notes , Publishing Agreement Reference Notes. Incorporated Society of Musicians, . Available at: https://www.ism.org/images/ismtrust/files/Publishing_Agreement_Reference_Notes.pdf (Accessed: March 20, 2023).
Independent (2023) David Guetta recreates Eminem's iconic voice using AI. Available at: https://www.youtube.com/watch?v=pNP1MqmzaZg (Accessed: March 20, 2023).
Ivors Academy (2021) What is a ‘buyout’? or ‘buy out’ the creator’s rights and potential ..., Ivors Academy. Available at: https://ivorsacademy.com/wp-content/uploads/2021/03/A-guide-to-buyouts-for-media-composers.pdf (Accessed: March 17, 2023).
Music Ally (2023) Misogyny in music: 'the imposter syndrome is created by the systems', Misogyny in music: 'The imposter syndrome is created by the systems' - Music Ally. Available at: https://musically.com/2023/02/08/misogyny-in-music-imposter-syndrome-systems/ (Accessed: March 20, 2023).
Musicians Union (2021) Specimen Publishing Agreement https://musiciansunion.org.uk/legal-money/job-contracts-and-business-agreements/specimen-agreements-for-music-business/specimen-publishing-agreement (Accessed: March 18, 2023).
ONS (2020) Financial resilience of households; the extent to which financial assets can cover an income shock. Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/personalandhouseholdfinances/incomeandwealth/articles/financialresilienceofhouseholdstheextenttowhichfinancialassetscancoveranincomeshock/2020-04-02&sa=D&source=docs&ust=1679178700212833&usg=AOvVaw3pFaA8BX_CRhNh8mbTqZ02 (Accessed: March 20, 2023).
Paine, A. (2022) Sony Music Publishing Launches Songwriter Assistance Programme, Music Week. Music Week. Available at: https://www.musicweek.com/publishing/read/sony-music-publishing-launches-songwriter-assistance-programme/085088#:~:text=Songwriter%20Assistance%20will%20offer%2024%2F7%20counseling%20support%20via%20global,%2C%20and%20family%2Frelationship%20challenges. (Accessed: February 19, 2023).
PPL (2023) Difference between PPL and PRS for Music, PPL. Available at: https://www.ppluk.com/about-us/difference-between-ppl-and-prs-for-music/ (Accessed: March 20, 2023).
Pregenant then Screwed (2023) New Pregnant than screwed data shows three-quarters of Mothers who pay for children say that it does not make financial sense for them to work. Available at : https://pregnantthenscrewed.com/three-quarters-of-mothers-who-pay-for-childcare-say-that-it-does-not-make-financial-sense-for-them-to-work/ (Accessed: March 20, 2023).
PRS for Music (2023) Copyright Law –An Introduction: Available at https://www.prsformusic.com/-/media/files/prs-for-music/membership/copyright_law_introduction-(1).pdf (Accessed: March 16, 2023).
SXSW (2023) Featured speaker: Music publishing in the new songwriter economy, SXSW 2023 Schedule. Available at: https://schedule.sxsw.com/2023/events/PP1141742 (Accessed: March 20, 2023). 12 minutes, 17 minutes, 21 minutes
Vincent (2023) Getty Images is suing the creators of AI art tool Stable Diffusion for scraping its content. Available at The Verge https://www.theverge.com/2023/1/17/23558516/ai-art-copyright-stable-diffusion-getty-images-lawsuit (Accessed: March 20, 2023).
William (2022) Music Streaming Hits Major Milestone as 100,000 Songs are Uploaded Daily to Spotify and Other DSP Available at Variety: https://variety.com/2022/music/news/new-songs-100000-being-released-every-day-dsps-1235395788/ (Accessed: March 20, 2023).