advice to Magnatune musicians about music publishing

I've received a lot of emails over the years from my magnatune musicians about publishing, asking:

1) Do I need a publishing company?
2) Should I self-publish? Can I?
3) Is Magnatune going to become a publisher?

The short answers are:

- no, publishing companies are unnecessary, and usually evil

- you can self-publish. It's easy, and in the USA, free.

- I'm not going to be a publisher, because now that I know how publishing works, I know I'd just be taking a cut of your money for nothing more than filling out a few forms with ASCAP.

I did a bunch of research recently, and wrote up what I found in two blog entries:

What does a music publisher do for a musician?
http://blogs.magnatune.com/buckman/2006/05/what_does_a_mus.html

Self-publishing your music - how to do it
http://blogs.magnatune.com/buckman/2006/05/selfpublishing_.html

If Magnatune has had any success licensing your music for film (and we do about 15 film licenses every month, so a lot of you have film licenses) you absolutely should self-publish, because you'll get automatically paid by ASCAP any time those films are shown, and if you're only registered as a musician with ASCAP/BMI, you're only getting half the money you're due.

If you're not an American musician, you have two options:

1) register with ASCAP as a publisher anyway. There's no requirement that you be a US citizen, you simply fill out a W8BEN tax form that they point to, so that the US government doesn't tax the money they pay you.

2) register with the collection society in your country. I can't give much advice on this, other than two anecdotal facts: 1) european collection societies seem to pay musicians more than the USA societies do (based on how much magnatune musicians tell me they get, if they get played on the radio in their country), and 2) the european societies' legal agreements are usually really awful, the societies are aggressively anti-internet, so it might be worth going with ASCAP even if it pays less. Your choice!

UPDATE in 2009:

"Film Music Magazine" columnist Mark Holden wrote me to say:

Re your blog, you’ve omitted a crucial fact about BMI and self-publishing. Through their works registration process and via cue sheet attributions, BMI allows their writer affiliates to designate a work as “author published.” BMI will distribute publishing revenues directly to the author via their writer statement four times a year. There are no extra fees associated with this designation; no muss, no fuss. On the other hand, ASCAP does not offer this option to its’ members.

Moving on, both PROs offer membership/affiliation to music publishers as you observe. While it’s true that the application fees differ, your conclusion that one agreement is inherently more punitive than the other is misleading and erroneous. Under your interpretation of the BMI publisher agreement, Sony, Universal, EMI, Warner, and everyone else would be prohibited from direct affiliation with foreign rights societies. That’s just not the case, obviously. In practical application, the BMI agreement is no more restrictive for a publisher than ASCAP’s.

But the central point to my request for you to amend your blog is that BMI offers the “author published” option, which is a very easy alternative to setting up a publishing entity with either PRO. It’s a terribly basic piece of info to omit on the subject of self-publishing in America. Because your blog doesn’t recognize this fundamental difference between ASCAP and BMI policy, the logic and conclusions of your post are seriously undermined. My suggestion just goes to accuracy and disclosure."

Comments

[Eric Redlinger]

Thanks for the fantastic deconstruction of this mysterious process, John - now I'm wondering how music arranging fits in to this. For instance, ASTERIA creates their own arrangments for lute and voices from original period vocal manuscripts as in many cases there is no modern edition of the music or the existing edition is hopelessly flawed. Obviously we are not the original authors of the music itself, but I wonder to what degree our work in arranging this music constitutes something publishable...

[John Buckman]

ASTERIA creates their own arrangments for lute and voices from original period vocal manuscripts as in many cases there is no modern edition of the music

If your changes are substantial, what you're doing, as far as the law is concerned, is not an arrangement at all, but a new work, that was inspired by the medieval source. Authors do this all the time, lifting old myths and writing new novels from that base, and this is absolutely considered a new work.

In the ASCAP agreement, I remember reading that if you register a work that is actually public domain as your own, and they notice this, that they'll remove your registration of the work.

However, the test for originality is extremely low, and recent court decisions have found editions of public domain works that do nothing more than make corrections to the score, are themselves newly copyrighted works.

I know of a classical record label that registers themselves as the copyright holder on all the works they release, even though they're all public domain works, with corrections and interpretative changes by the performer. This nets them a good amount of money, with as far as I can tell, no risk or negative consequences possible.

So, my recommendation would be to register your songs as written by you. In Asteria's case, since you're creating an instrumental lute part yourself, and just using a vocal manuscript, this seems pretty defensible to me.

I just received 10 minutes ago your new CD from Teresa -- I'm REALLY excited to hear it, and thanks for putting the magnatune URL on the CD tray insert, much appreciated. And the "mouvement nouveau" web site will be happy to see their great review comments there too.

-john

[Paul Dickson]

A correction: in the USA, performance royalties are *not* paid "every time a movie is shown". They are paid if it is shown on television, but not if it is shown in a theater.

Also, "musicians" can not join a PRO. Only publishers and writers (composers and lyricists). If you perform music written by somebody else, that other person gets paid by the PRO, not you.