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Should a songwriter split publishing with band members if they don't contribute to writing?

#1 User is offline   2good2betrue Icon

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Posted 24 February 2010 - 06:29 PM

Hi..
My band is signing to a major label this week, and I'm the sole songwriter..
I write, record, and even produce all the music of the band.
The live band has been with me the last 2 years and certainly did their share
of sacrifice to create a band that could pull off what I do in the studio.. live.

and I have some questions and opinions I'd like to get on the matter of "sharing"
my publishing with band members who didn't write the song.. ..we're thrown into
band agreement time.. and now they're wanting me to share some of the publishing
to, as they say, make sure they "don't starve out there" in the beginning in case we're waiting
to recoup on record sales... which is most likely the case.. ..
even though they'll be making money on tour.. and merch.. etc.. plus I've decided to split
evenly all touring money (even though I both lead sing and play every song)..
split the mech royalties of all sales evenly.. (but the mech royalties from the sales
won't arrive till after we've recouped.. if we recoup!)

the songwriter/publishing money is the one money that will arrive in the beginning.
(of course there's also the advance we're getting which is available evenly to the band..)

so I'm curious opinions on as sole songwriter,
if I should share a chunk of my publishing to appease the band..
, and how much if so. how much?

I've always heard "hang on to your publishing"..

I've got some industry people I've asked.. but everyone's opinion is different.
just curious the consensus.. and I want to be fair.

Thanks.

Brian

#2 User is offline   Neal K Icon

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Posted 24 February 2010 - 08:11 PM

The short answer is "no."

The long answer is "maybe." Are the other members of the band crucial to the sound of your music? How much did they contribute to the arrangement of the songs? Is it a "real" band, or is it more or less a bunch of musicians supporting you?

If the band is critical to the sound and they contributed to the arrangement, they should probably get something (and it sounds like you're already giving them plenty). The Doors used to split their royalites 4 ways, despite the fact that guitarist Robby Krieger wrote most of their really big hits. Other bands with a single songwriter didn't do it that way, so the songwriter got rich while the band members didn't.

This is a business decision, not an emotional one.

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#3 User is online   neuroron Icon

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Posted 24 February 2010 - 09:18 PM

Jacob Slichter, the drummer for Semisonic, wrote a really good back called "So you want to be a rock and roll star" basically about the rise and fall of Semisonic (a trio). Dan Wilson was the primary songwriter (and continues to this day on his own). DW proposed to the band - and they accepted - that they split all the songwriting revenue eually. The rationale was that he wanted the band to do the best songs on their own merit and not try to get their own songs in just to make money. This turned out to be a very good M.O. (IMHO) to keep a bend working as a team and largely keeping out many of the petty issues that have a tendency to arise. One thing that's clear from the book however is that all three of these band members were exceptionally bright and mature. I once knew a group of four physicians in different specialties that had a group practice - now some of the specialties represented generated much more revenue than others, but they split the money equally - their rationale was that each member generated equally valuable contributions to the group, not necessarily represented gy a revenue stream. this was a very long-lived and happy group - let me tell you that this is not the norm and these four guys were exceptionally mature. Keeping a group really going and productive is a difficult balancing act - not unlike a marriage - some largesse fropm the most "powerful" members goes a long way to maintaining this IMHO - Ron
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#4 User is offline   Neal K Icon

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Posted 25 February 2010 - 04:30 PM

Besides, what is "fair" to one pair of eyes is "unfair" to another. Look at one of the greatest songwriting partnerships of all time: Lennon and McCartney. Even from their earliest, pre-fame days they wrote both together and apart. However, they made an agreement that all their songs (regardless of which one wrote it, or how much, if anything, the other partner contributed) would be credited to Lennon & McCartney, and that the money would be split equally between them.

So of course they both got equally rich. But if you put it all on a balance sheet, the songs written by McCartney alone made way more money than the songs written by Lennon alone. Not just in terms of The Beatles’ record sales, but in cover versions as well. In the songs that were written together, again, the songs in which McCartney was the main contributor (“Michelle” is an example) made far more money than the songs with Lennon as the main contributor.

So, was that fair? It may have seemed so at the time, but today it means McCartney has lost (and continues to lose) tens of millions of dollars, which go into Yoko Ono’s pocket.

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#5 User is online   neuroron Icon

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Posted 26 February 2010 - 02:58 PM

View PostNeal K, on Feb 25 2010, 03:30 PM, said:

So, was that fair? It may have seemed so at the time, but today it means McCartney has lost (and continues to lose) tens of millions of dollars, which go into Yoko Ono’s pocket.

Neal


Since one never knows what "might have been" it is also possible that if they both "ate only what they killed" as it were, there would have been petty bickering and positioning to preferentially get their own songs (as opposed those most likely to be successful) on the records and neither the songwriting duo nor the band would have had the group chemistry and synergy that propelled them to be the monumental group would thus have "lost" (by virtue of never receiving) the bulk of the money that they actually did receive. Certainly Dan Wilson's rationale. The other thing that happens when you get additional "owners" is that those owners not only don't stand in the way but you increase the number of people putting energy into proliferation.

I tend to come down on the side that the primary writer's generosity is a good long term investment - both emotionally and financially.

Also if you throw in the OP's specific situation is one that the odd's of them making long term money is slim anyway so anything that will create group synergy is especially important.
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#6 User is offline   FunkDaddy Icon

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Posted 27 February 2010 - 03:55 PM

Call me egotistical but if they didn't contribute to the actual writing of the song then I would explain that I deserve the compensation for writing the song.

But I think I would be pretty honest about what constituted the song, if it really was a band collaboration song then I would share the credit, but if it's something I brought to the band and they just laid their tracks over top of it, why should they get credit for it? I certainly don't think putting down a bass track or drum track makes my songs when I'm recording them.

It depends on how everybody's egos can gel with the situation. I think a band that has been together since they were in high school might see it differently than a songwriter who put together a band after having a catalogue of songs written.
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#7 User is offline   Mary Dawson Icon

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Posted 28 February 2010 - 10:28 PM

All very good thoughts to consider. Only Brian knows what the "spirit" of the band is...whether they are really a unit, or a replaceable group of musicians.

In my book, "How to Get Somewhere in the Music Business from Nowhere with Nothing," I talk about the irony that happens when money enters the picture. Money is what everyone in the band has been hoping for, but as I say, "As any song begins to generate income, the memories of the writers fuzz out exponentially."

In my opinion, THE MOST IMPORTANT thing is to have a written agreement. Sit down with the band members and work it out. Then put it in writing. Just a simple letter of agreement will do. Doesn't have to be a 20 page "legaleze" document. Have everyone sign a copy...no photocopies...and make sure everyone has their own copy to keep for their records. However you decide to divide the copyright ownership, make sure that everyone is on the same page in their understanding. You could perhaps make the divisions equal up to a certain date or covering a certain list of songs. Then have the agreement terminate. If the band stays together, you can write another letter of agreement to cover the next batch of songs. If it doesn't, then you will only have to divide publishing up to a certain point and you won't get into the mess Paul McCartney did.

Very good discussion...and VERY IMPORTANT. The time to decide these things is "before the fact." You have NO IDEA what someone will resort to if they feel they deserve more than you think they do. It gets ugly out there. A simple letter of agreement will not threaten friendships. It preserves them if everyone's motives are correct. As my husband always says, "The palest ink is better than the most retentive memory."

Nuff said!

#8 User is offline   zmulls Icon

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Posted 01 March 2010 - 12:55 PM

There's more to add to the mix here. Remember the publishing royalties, including the mechanical, relate to the SONG, not to the RECORDING. This is not to say you aren't allowed to share the song royalties, but there's more money going around than those due to the songwriters.

The band -- as the Artist -- will get paid for sales of the recording. The songwriter royalties are carved off the top.

These days, there is less money in the royalties. The money is being made in performance. If there is radio play there will be royalties, and in fairness those should probably be split with the band, even though only the "songwriter and publisher" make money on radio.

If and when your song is used in media (commercials, TV, movies) you are paid for two sets of royalties -- the synchronization royalties for use of the SONG (publisher/songwriter) and Master Use royalties for use of the RECORDING (Band/Artist). You might get an all-in-one contract for all royalties, and would split the money between the synch and master rights.

Consider this: Suppose someone covers the song -- does their own version of one of your songs and makes money. Who should be paid, the whole band or the person who wrote it? How about if the song is used in a movie, but is rearranged and re-recorded as part of the thematic music? Do those royalties go to the person who wrote it, or the band that originally played it.

These are just questions. There is probably not going to be a lot of money coming in for the writing, and on the road (gig money and expenses, etc.) you are all in the same boat.

You might consider sharing songwriter royalties, but stating in a contract that any use of the song *outside of the group's recording* would result in royalties solely to you, while anything that comes in based on your band's recording would be shared. That's more complicated to track but might be more fair.

You don't have to share publishing per se. You could take 100% publishing for you, and split the writing royalties (50/25/25?) -- and then create agreements between the other band members and your publishing company, promising to pay them xxx under certain circumstances.

Many ways to skin the cat. But as has been stated above, you should consider giving something to them for launching the song, and (possibly) co-creating the recording that introduces the song.
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#9 User is online   neuroron Icon

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Posted 01 March 2010 - 01:07 PM

View PostMary Dawson, on Feb 28 2010, 09:28 PM, said:

... then you will only have to divide publishing up to a certain point and you won't get into the mess Paul McCartney did.


This is a mildly amusing perspective. The "mess" PM got into was that he got fabulously wealthy while others got money too - as opposed to the "preferable" outcome; i.e., he got even wealthier, and no one else got anything - IMHO, he has been well compensated
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#10 User is offline   2good2betrue Icon

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Posted 09 April 2010 - 09:36 PM

Great discussion and answers.. My problem has gotten more sticky since I first asked this.

To clarify, I write 100% of all the songs, sing, produce and even played all the instruments on the recordings..
these recordings landed on a label exec's desk and asked to showcase. We showcased and landed a deal.

.. This band is the "live version" of what I create alone in the studio.
The label asked if I wanted to do the deal just myself.. or the band.
I chose band, because I wanted them to have a piece of the pie coz they were going to make sacrifices out there on the road too.
(Plus I'm just not set up to pay a band a salary right now).

So now.. the deal is done. I want them to play on the record. and I'm splitting all merch, door money, tour money, advances, sales, etc.. evenly with the band.
(4 members) 25% each.

On top of that, I'm letting them split 60% of my publishing on these songs. I figured, I'll still get paid "songwriting share".. so I'll give them 60% of the pub share.
We all win. We all agreed.. All was well.

Now it seems that we had a misunderstanding.. and they want 60% of both songwriter and pub share..
they say that when THEY said "publishing", they meant splitting both streams.. not just the "publishing share"... but also the songwriter's share as well.

I know it's a tug of war over terminology.. but in it's common use in this industry,.. when I've always seen a songwriter's use of the term "give you a split of my publishing".. it's always meant a percentage of just the "publishing" side.. and not both songwriting and publishing!

What do you guys think? I can see the misunderstanding took place..

Now we're at an awkward standstill for a second while I realize just how much I want to bend over even more when I'm the one writing all the songs..
producing all the song, etc.. they literally get sent the finished demo via email.. and they learn in from the already finished recording I've done.

I want to be fair.. I know out there on the road there's no $guarantee .. but I've worked my whole life crafting my songwriting and to finally have
a deal on a major ..only to have my rhythm section wanting a massive chunk of my songwriter royalties in addition to what I've already offered.
I'm stressed beyond belief.

I honestly thought 60% of my "publishing share" was plenty if not over generous already!

I appreciate your feedback, comments, etc.. ASAP!

Brian

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Posted 10 April 2010 - 11:40 AM

I think you and your band are a bit confused, publishing and songwriting royalties are the same thing.
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#12 User is offline   Joan Icon

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Posted 10 April 2010 - 05:08 PM

2good2btrue doesn't sound confused to me. Publishing and songwriting royalties are thought of as different streams, only the same if the songwriter manages to sign a deal without surrendering the publishing rights to an arm of the label. Like here, but it's so hard to pull off. You'd think it would be a no-brainer for a performing songwriter to hang onto the whole royalty enchilada since there is no functioning "publisher" shopping these songs to other artists. But really, it's extremely hard to get a deal without giving that up, even when the artist and the songwriter are the same person. The Beatles infamously had to give up their publishing rights to get signed. Now even more than then, deals favor the label, which takes everything it can from the artist to pay itself back for the other artists they'll be losing money on. So good for you, managing to retain publishing, and you are right, giving up most of that half is generous to your band. Especially since you could have left them behind and still gotten your recording deal. It sounds like you're even composing their parts for them, so they are replaceable in a way that you're not. Could your act go over live with a scaled-back band sound, if you can't come to terms with these guys? I saw Bonnie Raitt on tour between her second and third major-label album with no back-up but her bass player Freebo, who also sang harmony. I've seen footage of Jason Mraz on tour with only a single supporting musician, albeit a really talented one, flogging "I'm Yours" before it broke big. Sometimes all an artist really needs is a percussionist who can do vocal harmonies and double on guitar when need be. Though of course some acts really need the full band treatment to properly fill out the sound.

I appreciate that you're not trying to make your band mates sound greedy, and when I think of this from their viewpoint, it's easy to see why they'd be concerned. Especially if they have day jobs they'll need to give up to hit the road. It would be a lot easier to negotiate if you all had a clear idea of what kind of venue income will be available to share. It's hard to factor in merchandise before you know what the demand will be. It would be interesting to know what would happen if the publishing shares were off the table and you simply invited them to sign on with you if they want to be part of this, and then held auditions to replace the ones who opted out. The label didn't ask your band mates whether they wanted to keep you. It asked you whether you wanted to keep them. To my mind, that provides most though not all the perspective needed here.

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Posted 10 April 2010 - 09:14 PM

Ok then I am confused. 2good2betrue has signed with a label. The label I assume is splitting the publishing with him 50/50 using their own publishing division as you said Joan. Aren't the rest of the royalties split between the label/publisher and in this case songwriter/artist? So what are these seperate "songwriting" royalties he is also getting? The mechanical and performance royalties? I've never heard of those referred to as "songwriting" royalties, seperate from publishing, since publishing is specifically part of the songwriter's revenue stream. Maybe I'm just confused by his phrasing.
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#14 User is offline   Joan Icon

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Posted 10 April 2010 - 09:56 PM

Mark, I think what he's saying is that the label signed him without grabbing his publishing rights. It's not unheard-of, you just don't hear it that often anymore. The label would still get the lion's share of the price of each CD sold-and-not-returned, but not a piece of the publishing. If that's the case, 2good2betrue still owns both the publishing side and the songwriting side of the statutory rate (which is still only pennies per song per CD, the mechanicals), and whatever royalties result from airplay, as he would if he were recording without a label's help. 2good2betrue, is that accurate?

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Posted 13 April 2010 - 10:01 AM

I think you need some solid legal advice. Please get an attorney and at the very least, consult one of those legal advice lines for the arts. VLANY They are covering songs you already wrote and produced and have walked into a great arrangement. If there is confusion now, imagine what will happen if someone decides to leave the band. Oy vey. Good luck.
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Posted 16 April 2010 - 07:06 AM

I'd suggest keeping all the publishing BUT any many you get from publishing you split half of it or all of it with the band. If someone leaves the band they no longer get any of the split from your next publishing cheque.
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Posted 30 May 2010 - 01:00 AM

I think tiberius has it right, the solution. Give them the generous offering as payment for a job well done as long as they remain in the band. Then if one (or more) decide to leave you still have a source of funding to replace them. And it's yours anyway. And encourage them to contribute in the songwriting.

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Posted 01 June 2010 - 08:40 AM

What you are dealing with is familiar territory for me so please excuse me if I didn't read all of the responses (I read some of them).

The band agreement is a crucial step, and one which should have been best settled before any label, major or otherwise came along. As you probably know by now, the "key members" of the band are what truly constitutues the "band" in the business world. As you are both the singer, and the principle songwriter those honors are yours, and yours alone. Like it or not, your "band" is very replacable. The best way to deal with this is to offer the band good salaries. In the beginning thy may be making more money than you! This is the way to deal with this situation.
This way it will be only you who is waiting for the reserves to come in.

Giving away publishing rights is a no no, hold onto those for dear life, you wrote the music so, those belong to you.
The song is, in legal terms, the lyric, and the melody. It is never a drum part, a screaming solo, or anything else, it is the lyric, and the melody, remember this. It may seem all well, and good to be loyal to the band but, now that you can see behind the curtain, you my friend ARE the band, and don't for one minute forget it! Your deal could be finished in a minute if the label starts feeling itchy so, figure this out without too much time spent dallying around with this. If You sing, and write all of the songs, and the truth is, the band is very easily replaced. Yeah, yeah, I know, you guys have been together for a long time. The game is what it is my friend, you cannot help that you guys were playing the game by the wrong rules book but, you were. It is best to have this written agreement between band members BEFORE you enter into negotiations with labels BUT you skipped this step (most do). Best advice I can offer you for your career is to get this internal agreement done, finished, and over with as quickly as you can. Really, it's a no-brainer here...You write all of the songs, and are the lead singer so you ARE the band. Give the musician's fair and equatable salaries, give them what is their due but NO NO NO do not give away any publishing rights.
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