This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.
I am now about to save you an enormous amount of time and frustration in setting up a publishing company. The tips I'm giving you here, revealed in print for the first time, were gained by yours truly through a series of hard knocks that will become obvious as you see the proper way to do it.
The Absolute First Thing To DoBefore you do anything, and I mean before you do anything, you positively must take this first step. Affiliate your company with ASCAP, BMI or SESAC. The reason you have to do this first is that these societies will not let you use a name that is the same (or similar to) the name of an existing company. They don't want to accidentally pay the wrong party, and so they're tough about the name you can use. And you don't want to have label copy, printed music, copyright registrations and everything else in the name of a company that can't collect performance royalties.
You can affiliate and secure your name by completing an application and giving the society three name choices, ranked in order. That way, at least one of the names should clear. If you're also a songwriter and haven't yet affiliated, you should affiliate was a writer with one of the three societies at the same time (they won't let you affiliate as a writer with more than one). You'll have to affiliate as a publisher with the same society you affiliate as a songwriter. This is because the society insists on having a song's publisher affiliated with the same society as the song's writer. And for this same reason, if you're going to be a real publisher, (meaning you're going to publish other people's songs, as opposed to only your own), you'll need to have three companies--one for ASCAP, one for BMI and one for SESAC.
The publishing company affiliation forms are pretty straightforward; they ask you who owns the company, the address, and similar exciting, provocative questions. You also need to give them information about all songs in your catalog (writers, publishers, foreign deals, recordings, etc.), so they can put the info into their system and make sure you're credited (read "paid") for them. You can get affiliation papers simply by calling ASCAP, BMI and/or SESAC. And get started early--it can take about five weeks to get an approval.
Here's a tip in picking a name. The more common your name is, the less likely you're going to get it. So steer clear of names like "Hit Music" and similar choices that, because they're obnoxiously obvious, won't clear. Names using just initials like "J.B. Music" and the like, also seem to have a hard time clearing (so save that concept for your license plate). For some reason, many of my clients enjoy naming their publishing companies after their children or their streets, and these seem to clear routinely. (For the record, I once owned a publishing company, "Holly Kelly Music," that I named after my dogs).
Setting Up BusinessIf you're not a corporation using a corporate name, the next step is to file what, in California, is known as a "fictitious name statement." This is a document filed with a country recorder and published in a newspaper, and it has its counterpart in most states. It tells the world that you're doing business under a name that isn't your own and makes it legal to do so. At least in California, you need this statement to open a bank account and, even more important, to cash checks made out to that name. You can imagine the screaming phone call I got as a young lawyer when I learned this lesson.
Copyright RegistrationNext, register the songs with the Copyright Office in the name of your publishing entity. If they have been previously copyrighted in your name, you need to file an assignment transferring them to the publisher's name.
Society RegistrationTo the extent you didn't do so when you originally affiliated, you must register all your songs with the performing rights society. The societies will send you the forms, which are self-explanatory. You only have to register the songs as either the writer or publisher, not both.
After that, you're in business. You can begin to issue licenses to record companies and other users, as well as make foreign subpublishing agreements, print deals, and so forth.
However, there's no particular need to rush into these deals, nor will anybody be interested in making them, until you have a record released (or some other exploitation, like a film or TV show using your songs), the societies won't even let you affiliate, and frankly, there's not much point in doing any of this. You'll just be all dressed up with no place to go.
About The Author: Donald Passman is a Los Angeles-based music attorney with the firm of Gang, Tyre, Ramer & Brown. Specializing in music business law for over 20 years, his clients include major publishers, record companies, film companies, managers, producers, songwriters, and artists such as REM, Janet Jackson, Quincy Jones, Tina Turner and Green Day.
