by Ben McLane, Esq.
The area of the music business known as publishing can be very lucrative. Because of the income potential, many writers form their own publishing companies. Some writers do this in order to "keep their publishing," while others do so because the established publishing companies have shown no interest. However, getting published means nothing if the songs are not recorded or exploited in some other way. Thus, If a writer is also an artist that has an independent record coming out, or has a song being used in a film or on television, the writer should consider forming a publishing company.
It is easy to form a publishing company assuming that there is a record coming out or if a film or television show is using one of the writer's songs. First, the writer must affiliate with ASCAP or BMI. (Both, if the writer intends to publish other writer's songs as well.) The reason for joining is that these rights societies pay the publisher performance royalties if the songs are played on radio, television, etc. These societies will not let a publisher use a name which is similar to an existing company because the wrong party might be paid accidentally. An uncommon name should be selected for the company so that the name will clear. If the publisher is also a writer that has not yet affiliated with either BMI or ASCAP, he or she should affiliate as a writer with one of the two societies at the same time as joining as a publisher. Because the societies require that the song's publisher be affiliated with the same society as the song's writer, the publisher will have to affiliate as a publisher with the same society joined as a writer. Part of the registration process will involve registering all songs written by the writer with the performance rights society selected.
If the publishing entity will not be operating as a corporation, the second step is to file a "fictitious name statement" with the county recorder. This puts the public on notice that the publisher is doing business under a name that is different from the writer's surname. In California, this statement is necessary in order to open a bank account, and to cash checks made out to that name.
Third, the publisher must register the songs to be published with the Copyright Office in Washington, D.C. in the name of the publishing entity. If the songs have already been copyrighted under the name of the writer, assignments need to be filed which transfer the ownership of the songs to the name of the publisher.
Fourth, it is advisable to affiliate with the Harry Fox Agency in New York. For a small percentage fee, the Harry Fox Agency acts as the publisher's agent to issue mechanical licenses (which allow others to record the songs), collects the mechanical royalties, and accounts to the publisher.
Finally, if the artist ends up signing a record deal, publishers will want to become the publisher because a record deal almost always ensures that the songs will generate some income. By acting as his or her own publisher, this does not mean that the writer cannot one day be published by a larger, more established publishing company in exchange for an advance and better promotion of the songs. The writer simply has to assign the publishing over to the major publisher.
In conclusion, if an artist is planning to release his or her own record and is without a publisher, forming a publishing company might be advisable and the above-mentioned steps should be helpful in doing so.Copyright 1998, Ben McLane
11135 Weddington Street, Suite #424
North Hollywood, CA 91601
Telephone: 818.587.6801 Fax: 818.587.6802