Lucas [2:02 PM]: Hey Nathan, what do you use on your beard? Also, remember that reference tracks article we published? I have another question—what is publishing? It's precisely the kind of thing I hear about all the time, but if pressed for details, I don't know much about it. Is that question way too broad to start with?
Nathan [2:04 PM]: Beard’s all natural homie, this is God’s gift to me (instead of athletic talent, money, etc.). And sure, we'll go back and forth on IM then copy and paste it into an article.
Ok, broad question, broad answer, but probably the best way to start things off. From a business perspective, every song has two components. First, there’s the song itself as it was performed, recorded, and released. That’s the song you stream/buy/download, the one that charts on Billboard, the one the record label releases, etc.
Second, there’s the music as a musical composition, a collection of lyrics and melodies that can exist outside of the specific recording of that song. That’s the part of the song you could transcribe into sheet music, and that can be performed by other artists, etc. The commercialization of that music, the lyrics and melodies, that’s publishing.
For example, fun fact: Until recently, Warner/Chappell owned the publishing on “Happy Birthday,” so anytime someone sings “Happy Birthday” in a song/TV show/movie/commercial/etc., they got paid.
Nathan [2:15 PM]: Sure, Krizzle it is. I’ll try to break it down to the basics.
So...if you were to sing “Lac Lac” right now, the actual song as it’s performed and recorded by Big K.R.I.T. on his Cadillactica album isn’t coming out of your mouth, the lyrics and melody from that song are. So the song as a specific performance by a particular person is one thing, and the song more broadly as a musical composition are two related but also separate things, right? The lyrics and the notes-only portion, that’s publishing.
Lucas [2:17 PM]: If the label owns the artist's music, doesn’t the label have rights to all parts of the song. Isn’t everything on “Lac Lac” the property of Def Jam?
Nathan [2:18 PM]: Nope. The label only owns the song itself; the publishing is usually a completely separate entity. Every song has to include notes and lyrics. That’s what makes it a song. But the use of the notes and melodies does not have to include the song as it was recorded and performed. It’s a rectangle/square situation.
So again, let's say “Lac Lac,” the song as it appears on Cadillactica, gets picked up for a scene in the upcoming “Hustle & Flow” sequel (that I just made up). The moviemakers would have to clear that record with both the label and the publisher, since the song as it was recorded, the lyrics and the melody, are all being used.
But let’s say that Terrence Howard’s character raps a verse from “Lac Lac” a cappella in a scene, but the song itself never plays. That’s only publishing.
Lucas [2:25 PM]: I’d love to hear a DJay “Lac Lac” remix. So who are the publishers? Why would an artist sign to a publisher? Could it be the artist?
Nathan [2:27 PM]: They handle two separate sides of music, but in many ways, publishing companies work just like record labels. They take a cut of the money made from an artist’s music in exchange for an advance and a promise of increased exposure and placements.
Publishing companies make their money by playing the long game. Beyoncé just quoted Soulja Boy on her new album, which will make for a nice publishing check, but that happened eight years after the song was released. In my favorite movie of all-time, “Back to the Future,” the band covers “Earth Angel,” another nice publishing check, but that was 30 years after the first release.
Again, just like signing to a record label, artists could choose to stay independent, form their own company and keep 100% of their publishing. Throughout their career that could pay off big, but it’s hard to have that kind of long-term plan when you’re a producer struggling to pay rent, and a publishing company is willing to write you a check for $50K right now in exchange for 50% (or more) of your publishing. Most artists can’t afford to think that long term, so they take a right-now publishing deal.
Lucas [2:34 PM]: Got it, but are the label and publisher always different? Theoretically, could Def Jam also have a cut of Krizzle’s publishing? Or in Cash Money’s case, they'd take it all. Can you elaborate on that?
Nathan [2:36 PM]: For a long time, labels mostly stayed out of publishing. Albums were going diamond, and they were selling for $15 apiece, their biggest problem was not drowning in all the money from music sales. But now that’s flipped completely. One million plays of a song on Spotify generates enough money to buy a ham sandwich, but the placement of a major song in a major movie could be a $100K payday. Remember when you started to hear about 360 deals? “360” was a cute term the labels came up with to say the same thing as “We’re now going to take a cut of your publishing too.” You know, 360; the full circle of squeezing every penny possible from an artist.
Surprise, though, while labels would also love to make publishing money, it’s not necessarily a great thing for an artist. All a publishing company does is try to place their catalog of music in movies, commercials, etc. That’s a full-time job many publishing companies have been doing for decades. It’s hard for a label that just got into publishing three years ago and is also focused on music sales, to match that. And as an artist, it’s just generally not a good idea to give any one company complete control over your career. All those years that Def Jam was shelving Jeremih’s album, he could still make good publishing money writing for other artists on other labels.
There are some benefits, though, mostly in how streamlined things can be. To keep using the same example, if “Lac Lac” were placed in a movie, the movie makers would have to clear through both the label and the publisher. If the publisher said no, or they couldn't track down the publisher, that’d be the end of that. So a joint label/publisher can increase the odds of getting a placement: the movie studio makes one call, boom, the deal’s done—people placing music commercially like simplicity.
I feel like we’re focusing too much on labels, though. There are a lot of songwriters and producers who will never sign a record label deal at all but have lucrative careers solely through publishing.
Lucas [2:45 PM]: Question. You mentioned Jeremih, so I’ll use him as an example. He is credited on “With You” on a little album called Views (maybe you’ve heard of it). If, say, the Toronto Raptors were making a movie about Vince Carter’s elbow hang dunk, and they wanted to use it, would Drake’s publishing money and Jeremih’s publishing money be split? I guess I’m asking...if you are one of those publishing-dependent songwriters or producers who work on someone else's song and that song gets used, what happens?
Nathan [2:48 PM]: Exactly. Anyone with a songwriting credit on that song gets a split of the publishing. It’s a part of ghostwriting that no one talks about—no songwriting credit means no publishing split means no money past whatever small envelope of cash they got handed the first time around.
How that split gets divided up, though, can be a bit of a clusterfuck. There are generally accepted industry guidelines, but no set-in-stone rules. Someone could write just the hook, successfully argue that the hook is the essential part of the song, and get a larger split. A superstar artist could throw their weight around and take 50% of the publishing even though they didn’t write very much at all under the “without me this song never even gets released, so be happy with anything” principle. It can get tricky.
A songwriter’s dream is to write an entire song themselves, have a superstar artist record that song without adding any additional songwriters, and then have that song turn into a huge hit. (On the opposite side, imagine being one of the 47 writers on a Kanye West song, that .05% split’s not doing you any good.)
Lucas [2:57 PM]: Okay, got it. One more question. When you sign a publishing deal, do the artist(s) still have the right to pick and choose where their songs go? Like for example, the Rolling Stones don’t want Trump playing their songs, can they stop him? Could Desiigner, who just inked a publishing deal, prevent Panda Express from using “Panda” in their new commercial for Panda meat lo mein?
Nathan[3:10 PM]: That’s specific to each contract; it’s called “Right of Refusal.” Sell all your publishing, and you’re shit out of luck; your music is now a Panda Express theme song. That's how you end up with a lot of early rock n' roll and soul artists who sold all their publishing because they didn't know any better and are now destitute even though you hear their music all the time.
On the other end, when the Beastie Boys’ Adam Yauch died, he wrote in his will that he didn’t want their music used in any commercial capacity, so the Beasties have refused any publishing deals.
It’s a good glimpse into why clearing a sample can be so painful. Who owns the publishing can be easy to find out—you call a giant publisher like Sony/ATV, they own 100% of that song, they only care about making money, you cut the check, done deal.
But maybe you’re trying to clear a more obscure sample. The publishing is owned entirely by a self-published artist who moved to Mongolia 20 years ago and went off the grid. Or you’re trying to clear a Beastie Boys sample, and it doesn’t matter how much money you have it’s not getting cleared. Or there are 12 songwriters signed to 12 different publishers on the song, and you've got to track down all of them. Publishing is complicated. That’s why there are people whose entire jobs involve clearing samples. That's all about publishing.
Lucas [3:28 PM]: I think I understand it now, thanks! I'm off to sign my Cash Money deal now.
Nathan [3:30 PM]: Good call, I can see I've taught you well. Let me know how that shark bus works out for you.
UPDATE: Our original story has sparked a lot of discussions both online, and within DJBooth's Slack channel, so we're copying and pasting a follow-up conversation.
Z [12:22 PM]: Someone on Facebook asked us how publishing works with free mixtapes? Great question.
Nathan [12:23 PM]: Worked in what sense? Like...is there a publishing agreement between the artist and producers?
Z [12:27 PM]: For songwriters or producers who don't have their deals?
Nathan [12:29 PM]: I have my follow-up question. "Mixtape" like "rapping over previously released beats" mixtape? Yeah, then never. "Mixtape" like an album full of original music that's being released for free? Then it depends on the scale of the artist/release.
Z [12:30 PM]: Right, a lot of variables, case by case basis.
Nathan [12:30 PM]: Pretty much no one ever does a publishing agreement ahead of time for smaller "mixtapes" because it's not worth the time, and those smaller artists often don't even know what publishing is, let alone how to draw up a contract, etc. etc. But, like...Chance's upcoming "mixtape" or album or whatever you want to call it? I'd be shocked if publishing wasn't worked out ahead of time on that. I need to do a follow-up.
Z [12:31 PM]: Evidently, yes.
Nathan [12:33 PM]: The argument against working out publishing splits ahead of time is that 99.9% of the time (to be realistic), no one's going to give a shit about your free mixtape, let alone try to place it anywhere that's going to make you publishing money.
But the argument for is the .1% of the time Menace sells a beat to a random rapper on YouTube, doesn't work out publishing at the time, and then two years later it's sampled on Kanye's album and "Panda" is the #1 song in the country.
Z [12:33 PM]: It's a lot of work for no return. It's still soooooo rare it's not worth it.
Nathan [12:35 PM]: Exactly. If you're a struggle rapper and a struggling producer' says, "Let's contractually sign a publishing agreement for this mixtape track maybe 1000 people will ever hear if we're lucky" that requires lawyers to get involved, you're going to be like "fuck out of here."
Z [12:35 PM]: Yeah, "What YouTube producer is up next?"
Nathan [12:36 PM]: Yep, let me find one of the other 40,000 producers who will give me a beat just as (not that) good without any hassle.
Z [12:36 PM]: Right. "Shit, I didn't even want to pay $200 for this beat anyways, free sounds better."
Nathan [12:37 PM]: A producer "should" always get publishing worked out ahead of time, that's good business, but there's a world of difference between "should" and how shit works. Welcome to the music industry, it's a clusterfuck.