� What does a music publisher do for a musician? | Main | advice to Magnatune musiciansabout music publishing �Self-publishing your music - how to do itI have a number of music business books that describe the self-publishing process, as well astrying 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 workmyself, and the books consistently say "ASCAP and BMI are about equivalent" which I think iscompletely untrue: BMIs publishing agreement is *much* worse.Here is a summary of my opinions on self publishing your music (if youre a songwriter)- go with ASCAP. Its free, and their agreement is much less evil than BMIs.- you dont need to incorporate, dont believe the music business books, you just need to pick aname for your publisher, which is your "doing business as" name. Youll get checks to thatname, 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 thepublishing agreement is much better at ASCAP, Id recommend both musician and publishersign with ASCAP. If the musician is already on BMI, they can leave and transfer to ASCAP.However, I have no knowledge that youll see more money from one or the other.- both ASCAP and BMI can collect "DART" royalties for you, which are various digital audioroyalties, and both have a one year cancellation option, so its a good idea to check that optionin the signup form, and I couldnt see much difference in the ASCAP vs BMI agreements forthis.- 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 bigdifferences are:- BMI wants $150 for you to be a publisher. ASCAP is free. BMI wants even more if youre aregistered company.- The BMI agreement is for 5 years, automatically renewing in 5 year terms forever, and you canonly 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 beforethe anniversary of when you signed with them.- The ASCAP agreement asks for less rights than the BMI agreement does. The BMIagreement, in my opinion, goes way overboard in the rights they get.Here are some examples. The BMI agreement:
BmiassingWhoa! In case you missed it, you "sell, assign and transfer" (that means you lose these rightscompletely) *all* the rights to perform or license the work to be performed, anywhere on theplanet. This means you cannot sign up with a foreign publishing company as well, if you go withBMI.Now, because both ASCAP and BMI were sued by the government and they are forced to letmusicians do their own licenses, BMI grants you back a license to do this (since you just gavethem all your other rights)Bmigrantwhereas ASCAP just asks for the rights they need, which is much friendlier than BMIsagreement, which asks for all your rights and gives you permission to do what the governmentforced them to.Note that under BMI you are required to notify them of any side agreements you do, since BMInow owns your rights, whereas under ASCAP you do not need to, since ASCAP has a non-exclusive right to start with:Bmi30this means that if youre a musician and self-published under BMI, and youre signed toMagnatune, you need to send BMI a copy of your signed Magnatune agreement within 10 daysof signing with Magnatune. No such requirement exists with ASCAP. As I understand this, if youassign a creative commons license to your music, and your publisher is signed with BMI, youalso need to send the Creative Commons license to BMI, as thats also a performance licenseand BMI commits you to telling them of it within 10 days.Compare the all-rights-go-to-BMI approach to the ASCAP agreement:Ascap1Ascap2ASCAP asks for a (non-exclusive) right to license your music, and the right to sue people toenforce your copyright. Thats all a collection society needs to do its business, it doesnt need toown the rights as BMI does. That strikes me as much more reasonable.Next BMI, gets all kinds of rights unrelated to their central mission of collecting performanceroyalties:BmibadThis means they have the right to make CDs of your music, as well as the right to license thatright to anyone else. The exceptions are: as long as its not to sell the CDs to the public, to syncthe music with film or TV, or distribute via cable. Obviously, those seem like the main reasonsyoud want to make CDs, but I can think of lots of other reasons, for example, they can makethousands of your CDs and give them away for free, or license them to a car company whowould include the CD in their cars (or hotel CD collections, libraries, etc... anything thats not "tothe public")Clause C. gives them the right to adapt or arrange the work, however they want (think "technoremix") for performance use. I dont see ASCAP getting this right in their agreement.
I will stop criticizing the BMI agreement after this last point:Bmilawyerthis says that BMI is your lawyer and can act on your behalf in any way they see fit, and areunder no obligation to act in ways that you direct them to. Compare that to the ASCAPagreement, where they only get the right to sue to protect your copyright.I could go on and on about this BMI agreement, its really that bad.Bmi1- Perhaps its silly, but the BMI agreement is an ancient scan of a typed agreement, withtwo "page intentionally left blank", and you cant search the text, because its all graphics. TheASCAP agreement is a word processing document, can be searched and is clean and new.BMIs agreement is 36 pages, vs ASCAPs 12. The BMI document has a bad attitude from thevery start, with a huge-font disclaimer as the cover page page that you should expect a 6 to 9month delay in getting paid, longer if its foreign performance money. Im sure ASCAP has thesame issue with delays, but the whole look and tone of the BMI agreement is off-putting, withthe bad-quality scan, dont-bug-us-about-delays, nasty rights grants and bad print quality.- Also perhaps silly, but the BMI agreement has several lobbyist-smelling exceptions to theagreement, such as for Opera and Ballet, next to some particularly nasty looking legalese. Thismakes me think that this legalese is bad news, and that some powerful lobbies got themremoved just for their case.For example:Ballet1Ballet2- I have no affiliation with ASCAP or BMI. My wife is an ASCAP member, and shes neverreceived 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 Isee...The usual disclaimer: Im no lawyer, this is not legal advice, and you should consult a lawyerbefore doing anything, such as using any of this advice.Posted by John Buckman on May 14, 2006 at 10:49 AM | PermalinkCommentsThe ASCAP music publisher agreement states that the songs have to be copyrighted. Have youfound that a Creative Commons label serves as a copyright, or do they make requirements onhaving government copyrights filed?Also, re: the name checks are written to, the ASCAP agreement has a box to check and a lineto fill in that allows you to specify the name the check should be written to if youd like to have apublishing company name thats different from that.Thanks for a great article - I hope you read old comments!-bill (Heuristics Inc.)Posted by: Heuristics Inc. at May 23, 2006 4:13:47 PM
The BMI "work registration form", which you can find athttp://www.bmi.com/songwriter/resources/forms/work-reg-e.pdf explicitly allows for works withno publisher at all, in which case the publishers share is divided among the writers. So thepremise of your preference for ASCAP over BMI has no validity.I do not work for BMI, but I do have a piece registered with them and this clause is one of thethings that swayed me in my choice of PRO.Posted by: Paul Dickson at May 24, 2006 6:51:48 PMahh and the plot thickens.Posted by: Ryan Sawhill at May 25, 2006 4:12:32 AMopinions of small-town bar owner about to file bankruptcy because of BMI. In my opinion, theresreally no reason for any songwriter to sign with either of these publishing corporations unlessyour songs will be played on the radio. you see, what most musicians dont know is that only theartists currently being played on the radio will be receiving any royalties from these "soprano"-esque (& im mainly talking about BMI here) organizations. and most songwriters are unawareof the shady business practices being conducted on "their" behalf when it comes to thebar/restaurant industry. they (BMI) harass, threaten, send in spies,(were talkin border-lineextortion/racketeering here) to get you to pay outrageous annual licensing fees for offering liveentertainment (bands playing cover tunes or karaoke). We wouldve been more than happy topay reasonable annual dues. but, the amount they "billed" us for was laughable! (based onCAPACITY, not annual sales) we NEVER have anywhere NEAR the amount of people ourcapacity allows, & already pay a license for the jukebox ($800/year) for a small-town bar thatonly brings in avg. $100/night mon-thur & $400 on fri or sat nite, thats a lot of dough. theywanted us to pay for an additional license ($1200) for our weekly karaoke and 2 times/monthlive band performances, but we called our attny generals office & they were unaware of anyLAW that required us to do so... so we blew it off. BMI was ruthless in its taticts. they harrassedemployees, sent threatening mail, and sent in spies to document copywrite infringements of"their" artists music. (14 violations) then hit us with a lawsuit stating they have the right to collectup to $1.5 million from us. we are a small-time business in a small town barely able to pay ourpayroll taxes each month, let alone an amount as enormous as that. well probably have to sellthe business weve been building for 7 years, be forced to file bankruptcy, and face thepossibility of losing our home &/or all assets. meanwhile, weve had to stop karaoke & live bandperformances (the only potentially busy nites for the bar); and the only time the bar has morethan 20 people in it. so, its looking pretty bad for us. what really pisses me off though, as shadyas their collection tatics are, the distribution policies of these funds to "their" artists are evenworse! they only pay out a questionable amount & only to artists with songs in rotation on asmall sampling (20%) of radio stations nation-wide. so, even if a band does play a cover of garystewarts "empty glass" or david allen coes "you dont have to call me darlin"... neither of themwill be seeing any royalties cause their songs arent being played on the radio anymore. ashleesimpson, kelly clarkson, & kenny chesney will be receiving a check. not the artists whose songsare being performed. basically, its a bunch of b.s. cuz a karaoke or live performance of a songmight even help the sales of that record. & im pretty sure that most musicians wouldnt wantbusinesses like ours going under so that the multi-million dollar artists whose songs arecurrently on the radio can have bigger checks and BMI can afford to pay the $200,000.00 amonth lease for their corporate offices in NYC. but thats just my opinion.Posted by: sunday freedman at Jun 14, 2006 10:48:28 PM
whoa. what a story.sorry man. that really sucks.Posted by: Ryan Sawhill at Jun 15, 2006 4:50:37 AMI used to sing once I sung at TCL when it was open. But based over an illness Im not able tosing anymore. My illness grew worse over time. Now the only time I sing is like around thehouse. I do write songs and I have a website if you would like to check the site out. I try to get incontact with all singers and songwriters-publishers and producers so on. If you have anyquestions let me know.Thank you,