Template Co-Publishing Agreement
AGREEMENT made and entered into as of the (Date inserted here) by and between (Composer's Name to be inserted here)) (hereinafter referred to as “Composer”), Common Exchange, LLC dba Common Hymnal (hereinafter referred to as “Publisher”), and (Co-Publisher's Name to be inserted here) (hereinafter referred to as “Co-Publisher”).
1. Composer hereby grants, assigns and delivers to Publisher and Co-Publisher, and each of their respective successors and assigns, all of Composer’s right, title, and interest throughout the world in the original musical compositions written and composed by Composer entitled, in the percentages stated herein:
See Assignment of Copyright below
(hereinafter collectively referred to as the “Composition”), including the title, words and music thereof, all worldwide rights therein, all copyrights therein and thereto, all registrations with respect thereto, and the exclusive right to secure copyrights and any extensions and renewals of copyrights in the same and in any arrangements and adaptations thereof, all throughout the world, and any and all other rights, claims and demands that Composer now has or to which Composer might be entitled or that Composer hereafter could or might secure throughout the world with respect thereto if these presents had not been made, and to have and to hold the same absolutely and forever unto Publisher, its successors and assigns, subject only to any existing agreements between Composer and Publisher and Composer’s performing rights affiliate.
Composer and Co-Publisher hereby grant Publisher throughout the Territory, the sole and exclusive right to administer One Hundred Percent (100%) of all rights in and to each Composition listed in the attached Assignment of Copyright, for the duration of the copyright in each such Composition (or as otherwise terminated, as provided herein) and to assign and/or license such rights to others.
2. Composer hereby warrants and represents that the Composition is an original work of the composer(s) identified herein (collectively, “Composer”), that neither the Composition nor any part thereof infringes upon the title, literary or musical property or copyright of any other work nor the statutory, common law or other rights (including rights of privacy) of any person, firm or corporation, that Composer is the sole writer and composer and the sole owner of the Composition and of all the rights therein, that Composer has not sold, assigned, transferred, hypothecated or mortgaged any right, title or interest in or to the Composition or any part thereof or any of the rights herein conveyed, that Composer has not made or entered into any contract with any other person, firm or corporation affecting the Composition or any right, title or interest therein or in the copyright thereof, that no person, firm or corporation other than Composer has or has had claims or has claimed any right, title or interest in or to the Composition or any part thereof, any use thereof or any copyright therein, that the Composition has never been published, that Composer has full right, power and authority to make this present instrument of sale and transfer and that the Composition is not subject to a controlled compositions clause.
3. In consideration of this Agreement and of the rights and interests hereby conveyed and granted, and following recoupment of any and all chargeable expenses or other recoupable amounts, and provided Co-Publisher and/or Composer, as the case may be, is not in breach of this Agreement, Publisher agrees to pay to Co-Publisher and Composer as follows:
(a) To Composer: Songwriter royalties equal to Fifty Percent (50%) of any and all net sums actually received (less any actual, third party, out-of-pocket costs for collection) by Publisher in the United States from the exploitation of the Composition(s).
(b) To Co-Publisher: Fifty Percent (50%) of any and all net sums actually received, less an administration fee that shall not exceed fifteen percent (15%) of Co-Publisher’s gross earnings hereunder, as listed in 3(i) below, less any actual, third party, out-of-pocket costs for collection) by Publisher in the United States from exploitation of the Composition. For the avoidance of doubt, payments made to Co-Publisher shall be calculated after the payment of any songwriter royalties.
(c) Composer shall receive the Composer’s share of public performance royalties throughout the world directly from Composer’s own affiliated performing rights society and shall have no claim whatsoever against Publisher and/or Co-Publisher for any royalties received by either of them from any performing rights society which makes payment directly (or indirectly other than through Publisher) to writers, authors and composers. If, however, Publisher shall collect both the Composer’s and “Publisher’s” share of performance income directly and such income shall not be collected by Composer’s public performance society, Publisher shall pay to Composer fifty percent (50%) of all such net sums which are received by Publisher in the United States from the exploitation of such rights in the Compositions throughout the world, paid without deduction and without regard to recoupment – one hundred percent (100%) of the writer’s share.
(d) Publisher shall not be required to pay any royalties on a reasonable number of professional or complimentary printed copies of the Composition or copies of mechanical derivatives of the Composition which are distributed gratuitously to performing artists, worship leaders, bloggers, disc jockeys, and/or other similar persons, or for advertising, promotional or exploitation purposes. Furthermore, no royalties shall be payable to Composer on consigned copies of the Composition unless paid for, and not until such time as an accounting therefor can properly be made.
(e) If Composer submits a Composition without lyrics, for the purpose of Publisher supplementing the Composition with a suitable lyric, Publisher agrees to obtaining the Composer’s prior written consent before signing off on the final copyright. In such instances, the Composer agrees for all royalties to be divided equally between Composer and the writer or writers of the lyrics. Publisher shall have the right to cause a variety of printed arrangements to be made of the Composition. In the event that Publisher causes a vocal and/or instrumental arrangement to be made by someone other than Composer, the above royalties shall be divided equally between Composer and the arranger.
(f) Except as herein expressly provided, no other royalties or monies shall be paid to Composer or to Co-Publisher. In no event shall Composer or Co-Publisher be entitled to share in any advance payments, guarantee payments or minimum royalty payments which Publisher may receive in connection with any sub-publishing agreement, collection agreement, licensing agreement or other agreements covering the Composition, unless such payments are solely related to Composition and in excess of $2,000.
(g) All actual third party, out of pocket administrative and exploitation expenses of Publisher with respect to the Composition including, without limitation, copyright registration fees, advertising and promotion expenses directly related to the Composition, the costs of transcribing for lead sheets, the costs of producing demonstration records to the extent such costs are not recoupable from the Composers’ or other writers’ royalties, auditing fees, shall be shared between Composer, Publisher, and Co-Publisher as follows: 50% to Composer, 25% to Publisher and 25% to Co-Publisher, in accordance with the percentages described herein. Therefore fifty percent (50%) of any such expenses shall be recoupable from royalties earned by Composer hereunder.
In the event Co-Publisher is no longer a publisher in an individual composition as the result of the parties entering into a co-publishing agreement with one or more third party publishers by operation of Paragraph 18 (a) and associated terms, all new expenses with regard to this individual composition shall be apportioned as reflected therein.
In the event an individual composition is brought into a multiple-party co-publishing relationship by operation of Paragraph 18 (b) and associated terms, all new expenses with regard to this individual composition shall be apportioned as reflected therein.
(h) Notwithstanding the foregoing subparagraphs, all percentages stated above shall be reduced automatically in accordance with Paragraph 18, below.
(i) “Net sums” as used herein shall be determined after deducting an administration fee that shall not exceed fifteen percent (15%) of Co-Publisher’s gross earnings hereunder, and following payment of royalties to the songwriter(s) of each Composition.
(j) With respect to gross receipts received by Publisher in the United States that are derived from an individual Composition listed on the attached Assignment of Copyright, in the event that annual gross receipts collected on this particular Composition fall below Five Hundred Dollars ($500.00), as calculated during the twelve month period immediately following the date which is ten (10) years after the effective date of this Agreement, or in any subsequent annual twelve month period, Composer shall be entitled to cause Publisher and Co-Publisher to re-assign all of their respective interest in this particular Composition to Composer. Notwithstanding the foregoing, Composer shall not be able to exercise this provision if Publisher and/or Co-Publisher, as the case may be, has assigned any of its interest in this particular Composition to any third party (including, but not limited to, Capitol CMG Publishing). Composer may exercise Composer’s re-assignment right hereunder by simple written notice to Publisher and Co-Publisher. In the event that an individual Composition listed on the attached Assignment of Copyright is re-assigned by Publisher and Co-Publisher to Composer, all licenses issued by Publisher prior to such re-assignment, and as those licenses may be extended, shall remain in effect and Publisher shall have the right to continue to receive royalties derived from such licenses.
4. Within sixty (60) days after each semi-annual period in each year, Publisher will prepare and furnish semi-annual statements to Composer and Co-Publisher hereunder, and each such statement shall be accompanied by payment of any and all sums shown to be due thereby, after deduction of any and all recoupable costs or advances to Composer and/or Co-Publisher, as the case may be. In respect to print royalties only, for Publisher’s proprietary products in physical formats, Publisher shall have the right to retain as a reserve against returns, thirty five (35) percent reserve liquidated over two (2) accounting periods. Composer and/or Co-Publisher shall notify Publisher in writing of any specific objection to such statements no later than two (2) years after the date thereof. Any and all objections, questions, or disputes concerning any such statement shall be waived by Composer and/or Co-Publisher, as the case may be, unless such written objection is received by Publisher within such two (2) year period. Composer and/or Co-Publisher, a certified public accountant, an attorney or a qualified representative, experienced in music business audits, in Composer’s and/or Co-Publisher’s behalf may, at Composer’s and/or Co-Publisher’s expense, at reasonable intervals, examine Publisher books insofar as same concern Composer or Co-Publisher, during Publisher’s usual business hours and upon at least thirty (30) days written notice, for the purpose of verifying the accuracy of any statements rendered to Composer or Co-Publisher hereunder. Publisher’s books relating to activities during any accounting period may only be examined as aforesaid during the two (2) year period following the date of the statement for said accounting period. If Publisher shall not receive payment in United States dollars in the United States in respect of any exploitation of the Composition, royalties in respect thereof shall not be credited to Composer’s royalty account hereunder, and no amounts are due to Co-Publisher in connection therewith. Publisher shall, however, if Publisher is able to do so, accept such payments in foreign currency and deposit in a foreign bank or other depository, at Composer’s and Co-Publisher’s expense, in such foreign currency such portion thereof, if any, as shall equal the royalties which would have actually been payable to Composer and/or Co-Publisher hereunder in respect of such exploitation had such payments been made to Publisher in United States dollars in the United States, and Publisher shall notify Composer and/or Co-Publisher thereof promptly. Deposit as aforesaid shall fulfill Publisher’s royalty obligations hereunder as to such exploitation.
5. During the Term, Composer hereby grants to Publisher the right to use and publish and to permit others to use and publish Composer’s name (including any professional name heretofore or hereafter adopted by Composer), approved likeness and approved biographical material, or any reproduction or simulation thereof and the title of the Composition in connection with the printing, sale, advertising, distribution and exploitation of music, folios, recordings, performances, player rolls and otherwise concerning the Composition.
6. Composer hereby acknowledges that Publisher has the right hereunder to substitute a new title or titles for the Composition, and to create adaptations, arrangements, translations, dramatizations and transpositions of the Composition, in whole or in part, and in connection with any other musical, literary or dramatic material. Publisher can only add new lyrics to the music of the Composition or new music to the lyrics of the Composition with the written permission of the Composer. Composer hereby waives any and all claims which Composer has or may have against Publisher, its associates, affiliates and subsidiaries by reason of the fact that the title of the Composition may be the same as or similar to that of any other musical compositions heretofore or hereafter acquired by Publisher.
7. Composer does hereby irrevocably empower and appoint Publisher, or any of its officers, Composer’s true and lawful attorney (with full power of substitution and delegation) in Composer’s name, and in Composer’s place and stead, or in Publisher’s name, to take and do such action, and to make, sign, execute, acknowledge, deliver, and record any and all instruments or documents which Publisher, from time to time, may deem desirable or necessary to vest in Publisher, its successors, assigns and licensees, any of the rights granted by Composer hereunder, including, without limitation, such instruments or documents required to secure to Publisher copyright registration and protection for the Composition for the full term of copyright and for any extensions thereof. Publisher shall give Composer five (5) business days’ notice before signing any document in Composer’s name, provided Publisher may dispense with that waiting period when necessary, in Publisher’s judgment, to protect or enforce Publisher’s rights. As a non-material obligation, Publisher shall provide Composer with copies of documents signed by Publisher in Composer’s name.
8. Composer shall not transfer nor assign this Agreement nor any interest therein nor any sums that may be or become due hereunder without the prior written consent of Publisher, which shall not be unreasonably withheld. No purported assignment or transfer in violation of this restriction shall be valid to pass any interest to the assignee or transferee.
9. Publisher may take such action as it deems necessary, either in Composer’s name or in its own name, against any person to protect the rights and interest acquired by Publisher hereunder. Publisher will promptly notify Composer of any claims, action, demand or proceeding which may affect Publisher or Composer’s interest in the Composition. Composer will, at Publisher’s request, cooperate fully with Publisher in any controversy which may arise or litigation which may be brought concerning Publisher’s rights and interests acquired hereunder. Publisher shall have the right, in its absolute discretion, to employ attorneys and to institute or defend any action or proceeding and to take any other proper steps to protect the right, title and interest of Publisher in and to the Composition and every portion thereof and in that connection, to settle, compromise or in any other manner dispose of any matter, claim, action or proceeding and to satisfy any judgment that may be rendered, in any manner as Publisher in its sole discretion may determine, provided that Composer’s written consent shall be required to settle any claims and such consent shall not be unreasonably withheld. If Composer shall not give written consent to a proposed settlement of a claim which Publisher believes is reasonable with ten (10) days after the presentation of such settlement offer to Composer, then on Publisher’s request Composer shall promptly undertake any further action in regard to the claim at Composer’s sole cost and expense, and Composer shall thereafter be fully and totally responsible and liable for any damages or costs in excess of the amount set forth in the proposed settlement offer. Any legal action brought by Publisher against any alleged infringer of the Composition shall be initiated and prosecuted by Publisher, and if there is any recovery made by Publisher as a result thereof, after deduction of the expense of litigation, including but not limited to outside attorney’s fees and court costs, a sum equal to the percentages specified herein of such net proceeds shall be paid to Composer and/or Co-Publisher, as the case may be. If a claim is presented against Publisher in respect to the Composition, and because thereof Publisher is jeopardized, Publisher shall have the right thereafter, until said claim has been fully adjudicated or settled, to withhold any and all royalties that may be or become due with respect to the Composition earned pursuant to this Agreement or any other agreement between Composer and Publisher, sufficient, in the good faith opinion of Publisher, to reimburse Publisher for any contemplated damages, including court costs and outside attorney’s fees and costs resulting therefrom. Such withholding shall continue until the final resolution or settlement of any such claim. If Composer posts a bond in a form, manner and amount acceptable to Publisher, Composer may avoid the withholding of royalties as aforesaid by Publisher. Composer hereby agrees to indemnify and hold Publisher harmless from and against any and all costs and damages incurred by Publisher in connection with such indemnity and any and all costs and damages sustained by Publisher related thereto shall be promptly paid to Publisher by Composer on demand. If Composer shall fail to pay the same to Publisher, Publisher may deem all such monies an additional advance against any royalties payable to Composer under this Agreement or any other agreement between Composer and Publisher. Upon the final adjudication or settlement of each and every claim hereunder, all monies withheld shall then be disbursed in accordance with the rights of the parties as provided hereinabove.
10. The term “Composer” shall be understood to include all the writers and composers of the Composition. If there be more than one, the covenants herein contained shall be deemed to be both joint and several on the part of the writers and composers and the royalties hereinabove specified to be paid to Composer shall, unless a different division of royalties be specified, be due to all the writers and composers collectively, to be paid by the respective publishers in equal shares to each.
11. Publisher shall have the right to assign this Agreement and any of its rights hereunder and to delegate any of its obligations hereunder in whole or in part, to any person, firm or corporation.
12. This Agreement contains the entire understanding between the parties, and all of its terms, conditions and covenants shall be binding upon and shall inure to the benefit of the respective parties and their heirs, successors and assigns. No modification or waiver hereunder shall be valid unless the same is in writing and is signed by the party sought to be bound.
13. This Agreement shall be deemed to have been made in the State of Tennessee and its validity, construction and effect shall be governed by and construed under the laws and judicial decisions of the State of Tennessee applicable to agreements wholly performed therein.
14. All notices, statements and payments required or desired to be given hereunder shall be given by addressing same to the addresses of the respective parties hereinbelow set forth, or to such other address as either party may hereafter designate, by writing and shall be delivered by the United States Postal Service, certified or registered, postage prepaid, or in a telegraph or cable office.
(Composer's Name inserted here) (Composer)
(Composer's Address inserted here)
Common Hymnal (Publisher)
4895 Captain Freeman Parkway
Franklin TN 37064
(CoPublisher's Name inserted here) (Co-Publisher)
(Co-Publisher's Address inserted here)
15. The use of the singular in the Agreement shall apply to and mean the plural where appropriate.
16. Publisher shall have the right to enter into sub-publishing and collection agreements with its affiliated or related companies for countries of the world outside of the United States provided however any such agreement shall be on a basis no less favorable to Publisher than an agreement providing for the Publisher to receive in the United States no less than seventy-five percent (75%) (fifty percent (50%) in the case of a local cover recording as that term is commonly understood) of all income earned by the Composition outside the United States (except in the area of printed music where Publisher shall receive a royalty on printed editions of not less than ten percent (10%) of the suggested retail selling price on printed editions, pro-rated where appropriate). With respect to the foregoing, Composer shall receive the benefit of any more favorable rates that Publisher may obtain.
17. All parties agree that in the event that any party has breached this Agreement, the non-breaching party party shall deliver to the other party(ies) by registered mail or overnight delivery service, return receipt requested, a written notice specifying all such breach(es) and the other party shall have thirty (30) days from the receipt of such written notice to substantially cure such breach. Such alleged breach shall not be grounds for any action, claim or proceeding, whether at law or in equity, with respect to this Agreement until the expiration of said thirty (30) day period and unless during said thirty (30) day period the applicable party has not substantially cured same, or diligently begun to cure same if said breach is not reasonably capable of cure within said thirty (30) day period.
18. The parties contemplate that one or more other publishers may have an interest in a co-publishing relationship with respect to the Composition.
(a) In the event Publisher, in Publisher's sole discretion, determines that it is in the best interest of the parties to enter into a co-publishing agreement with one or more other publishers, the ownership percentages will be adjusted automatically and Co-Publisher will no longer be a co-publisher of the Composition. In such event, Co-Publisher's percentage of ownership shall automatically transfer to Publisher, and Publisher and the other publishers shall own all right, title and interest in and to the Composition in the percentages determined by them. Co-Publisher agrees to this assignment in advance. Consideration for such modifications, if any, is hereby deemed good and valuable by Co-Publisher.
(b) In the event (i) the gross amount attributable to Composer’s Composition(s) exceeds $150,000 in a calendar year, and (ii) one or more outside publishers develop an interest in a co-publishing relationship with respect to a new composition submitted by Composer after the $150,000 per annum benchmark, and (iii) Publisher, in Publisher's sole discretion, determines that it is in the best interest of the parties to enter into a co-publishing agreement with one or more other publishers with respect to such newly submitted Composition(s), the ownership in such newly submitted Composition(s) will be reconfigured in percentages mutually agreed by Publisher, Co-Publisher, and all new co-publishers. Co-Publisher shall agree, in good faith, to a reduced percentage, which is hereby automatically approved if reduced to equal percentages for each co-publisher (including Publisher, Co-Publisher, and all new publishers). Consideration for such modifications is hereby deemed good and valuable by Co-Publisher.
19. Notwithstanding anything herein to the contrary, in the event Publisher does not add an individual Composition listed on the attached Assignment of Copyright to commonexchange.org, or one of Common Exchange’s other proprietary web or mobile properties, or secure a commercial license of this Composition to an independent third-party artist or label, within twelve (12) months of delivery of such Composition hereunder, all rights granted to Publisher hereunder in connection with such Composition shall revert to Composer. For the avoidance of doubt, the reversion of rights to one Composition shall not effect Publisher’s rights with respect to any other Composition hereunder.
20. With respect to recordings and print products created by Composer, Composer’s local church and/or Composer’s ministry, that are released directly by Composer, Composer’s local church or Composer’s ministry, for sale and distribution in physical or digital form, and that are not subject to a third-party agreement (each such recording an “Exempt Recording”, each such pre-existing print product an “Exempt Product”), Composer shall not be required to obtain mechanical, print, subscription, sync or streaming licenses nor pay mechanical, print, subscription, sync or streaming royalties for compositions listed on the attached Assignment of Copyright (solely with respect to Composer’s share of authorship) that appear on an Exempt Recording or Exempt Product. Should an Exempt Recording or Exempt Product become subject to a third-party recording, print, distribution, subscription or streaming agreement, mechanical, print, subscription, sync and streaming licenses will need to be obtained for applicable compositions and royalties accounted for applicable sales and transactions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on (Date inserted here).
ASSIGNMENT OF COPYRIGHT
Subject to the Co-Publishing Agreement between (Composer's Name inserted here) (“Composer”) and Common Exchange, LLC dba Common Hymnal (“Publisher”) and (CoPublisher's Name inserted here) (“Co-Publisher”) dated (Date inserted here), Composer hereby grants, conveys and assigns to Publisher, its successors and assigns, an undivided Fifty Percent (50%) and to Co-Publisher, its successors and assigns, an undivided Fifty Percent (50%) interest in all of Composer’s right, title and interest (as described in list below) throughout the world and universe in and to the musical compositions listed below, including, without limitation, the copyright and any and all renewals and extensions thereof. For the avoidance of doubt, Composer is assigning 100% of Composer’s interest in the Composition, 50% to Publisher and 50% to Co-Publisher.
Composition: (Title inserted here)
Composer %: (Songwriter Percentage inserted here)
Date: (Date inserted here)
Composition: (Title inserted here)
Composer %: (Songwriter Percentage inserted here)
Date: (Date inserted here)
IN WITNESS WHEREOF, Composer has executed this instrument on (Date inserted here).
Composer and Co-Publisher understand and agree that their electronic signatures below represent acceptance of all of the terms contained in these combined documents. By signing this form, Composer and Co-Publisher accept all terms in these combined agreements as a single, unitary contract.