Publishing contracts and their risks and side effects

The publisher can look for labels to produce a recording. The publisher can ensure that music is used in a new recording for advertising, film or computer games or arrange composition commissions. The publisher can also allow or encourage adaptations such as translations or changes of style for a fee. Traditionally, a publisher also prints sheet music, publishes songbooks or gives a streaming service a license to display the lyrics during streaming. However, it is not part of the publisher's remit to take care of the exploitation of recordings. This is typically one of the core tasks of a label or distributor.

Good music publishers usually have a large network, ideally also abroad, which makes these tasks possible or easier for them. When deciding whether or not to work with a publisher, an artist should also consider whether the network suits their own needs and musical style.

In order for the music publisher to be able to perform its tasks, the author (composer, lyricist or arranger) transfers the copyrights to it for a defined period of time in a defined territory.

For its work, the publisher receives a percentage of the author's income from the use of the compositions. The amount of the percentage depends on the type of use. The publisher and composer are both members of a collecting society such as SUISA. The publisher is registered there for the individual works and in the publishing agreement the income is divided in the same way as in SUISA's distribution regulations. This applies to all rights except synchronization (e.g. use of the music in films, games etc. but also combining the music with choreography, embedding it in a play etc.), editing (e.g. translating texts, changing styles etc.), "graphic" rights (e.g. printing sheet music or the texts shown on the Internet). For the rights managed directly by the publisher, the publisher and the author freely agree on a revenue share.

Because the publisher receives a revenue share instead of a fixed fee, it bears the risk of working a lot but achieving little and therefore earning little. However, it is also possible that the publisher does little for the exploitation of certain music and still earns well because the artists, for example, play major tours on which their songs are performed. In this case, the publisher always receives a share of the SUISA income.

Publishing contracts have a minimum term of three years, but are also regularly concluded for the "term of protection", i.e. up to 70 years after the death of the author. Publishing agreements are also usually concluded for the entire world.

The law does regulate the most important basic features of a publishing agreement. However, the rules are designed for typical book publishers and are hardly suitable for music publishers. Due to the long commitment and the lack of legal requirements, it is advisable to clarify all essential topics in the contract. In addition to duration and territory, this also includes clear obligations of the publisher, royalties and possible grounds for termination. It is also recommended that an author has a say in deciding for which types of films, advertising, games, etc. the music may be used. The association of music with other productions inevitably has an impact on artists and their reputation.

Since publishing contracts have very long terms and there are hardly any opportunities for artists to terminate a publishing contract, the respective person must carefully examine in each individual case whether the collaboration is worthwhile for them. The biggest challenge are the constructs in which organizations such as labels, music commissioners, etc. want to take over the publishing rights in order to refinance their own investments such as the commission fee. Sometimes the assignment of the publishing rights is a condition for obtaining the commission or marketing the recording in the first place. Although this is usually legally permissible, artists should check particularly carefully whether the overall package makes sense from their point of view.

As always, ask a specialist about the risks and side effects of the contract before signing it.

Chantal Bolzern ... is a lawyer, mediator and co-president of Helvetiarockt.