I have a number of music business books that describe the self-publishing process, as well as trying to answer the "should I go with ASCAP or BMI?" question. I found a number of factual problems with the books when I actually did the research work myself, and the books consistently say "ASCAP and BMI are about equivalent" which I think is completely untrue: BMI's publishing agreement is *much* worse.
Here is a summary of my opinions on self publishing your music (if you're a songwriter)
- go with ASCAP. It's free, and their agreement is much less evil than BMI's.
- you don't need to incorporate, don't believe the music business books, you just need to pick a name for your publisher, which is your "doing business as" name. You'll get checks to that name, so you want to choose a publishing company name such as "John Buckman Publishing" (ie, your name + publishing) so that the bank lets you cash the checks you receive to that name.
- the musician should be signed up with the same organization as the publisher, and since the publishing agreement is much better at ASCAP, I'd recommend both musician and publisher sign with ASCAP. If the musician is already on BMI, they can leave and transfer to ASCAP. However, I have no knowledge that you'll see more money from one or the other.
- both ASCAP and BMI can collect "DART" royalties for you, which are various digital audio royalties, and both have a one year cancellation option, so it's a good idea to check that option in the signup form, and I couldn't see much difference in the ASCAP vs BMI agreements for this.
- The ASCAP publisher signup form is here (go to "Publisher Applicants"): http://www.ascap.com/about/howjoin.html and it costs nothing to join
ASCAP vs BMI? I thought they were the same, then I looked at the agreements. The big differences are:
- BMI wants $150 for you to be a publisher. ASCAP is free. BMI wants even more if you're a registered company.
- The BMI agreement is for 5 years, automatically renewing in 5 year terms forever, and you can only cancel in a specific window a few months before the 5 year term expires. The ASCAP deal, on the other hand, can be cancelled any year, if you notify them between 9 and 6 months before the anniversary of when you signed with them.
- The ASCAP agreement asks for less rights than the BMI agreement does. The BMI agreement, in my opinion, goes way overboard in the rights they get.
Whoa! In case you missed it, you "sell, assign and transfer" (that means you lose these rights completely) *all* the rights to perform or license the work to be performed, anywhere on the planet. This means you cannot sign up with a foreign publishing company as well, if you go with BMI.
Now, because both ASCAP and BMI were sued by the government and they are forced to let musicians do their own licenses, BMI grants you back a license to do this (since you just gave them all your other rights)
whereas ASCAP just asks for the rights they need, which is much friendlier than BMI's agreement, which asks for all your rights and gives you permission to do what the government forced them to.
Note that under BMI you are required to notify them of any side agreements you do, since BMI now owns your rights, whereas under ASCAP you do not need to, since ASCAP has a non-exclusive right to start with:
this means that if you're a musician and self-published under BMI, and you're signed to Magnatune, you need to send BMI a copy of your signed Magnatune agreement within 10 days of signing with Magnatune. No such requirement exists with ASCAP. As I understand this, if you assign a creative commons license to your music, and your publisher is signed with BMI, you also need to send the Creative Commons license to BMI, as that's also a performance license and BMI commits you to telling them of it within 10 days.
ASCAP asks for a (non-exclusive) right to license your music, and the right to sue people to enforce your copyright. That's all a collection society needs to do its business, it doesn't need to own the rights as BMI does. That strikes me as much more reasonable.
This means they have the right to make CDs of your music, as well as the right to license that right to anyone else. The exceptions are: as long as it's not to sell the CDs to the public, to sync the music with film or TV, or distribute via cable. Obviously, those seem like the main reasons you'd want to make CDs, but I can think of lots of other reasons, for example, they can make thousands of your CDs and give them away for free, or license them to a car company who would include the CD in their cars (or hotel CD collections, libraries, etc... anything that's not "to the public")
Clause C. gives them the right to adapt or arrange the work, however they want (think "techno remix") for performance use. I don't see ASCAP getting this right in their agreement.
this says that BMI is your lawyer and can act on your behalf in any way they see fit, and are under no obligation to act in ways that you direct them to. Compare that to the ASCAP agreement, where they only get the right to sue to protect your copyright.
I could go on and on about this BMI agreement, it's really that bad.
- Perhaps it's silly, but the BMI agreement is an ancient scan of a typed agreement, with two "page intentionally left blank", and you can't search the text, because it's all graphics. The ASCAP agreement is a word processing document, can be searched and is clean and new. BMI's agreement is 36 pages, vs ASCAP's 12. The BMI document has a bad attitude from the very start, with a huge-font disclaimer as the cover page page that you should expect a 6 to 9 month delay in getting paid, longer if it's foreign performance money. I'm sure ASCAP has the same issue with delays, but the whole look and tone of the BMI agreement is off-putting, with the bad-quality scan, don't-bug-us-about-delays, nasty rights grants and bad print quality.
- Also perhaps silly, but the BMI agreement has several lobbyist-smelling exceptions to the agreement, such as for Opera and Ballet, next to some particularly nasty looking legalese. This makes me think that this legalese is bad news, and that some powerful lobbies got them removed just for their case.
- I have no affiliation with ASCAP or BMI. My wife is an ASCAP member, and she's never received a check over $10 from them, so I was in no way previously biased toward ASCAP (biased against them, truth to tell, due to the paltry checks). But, this is how I interpret what I see...
The usual disclaimer: I'm no lawyer, this is not legal advice, and you should consult a lawyer before doing anything, such as using any of this advice.