Performance Clauses in Entertainment Contracts : Producing and editing recorded pieces of music is definitely a special art form. But so are entertainment lawyers’ actions in drafting clauses, contracts, and contract language in general.
How can the art of entertainment lawyers drafting clauses or contracts legally affect musicians, composers, songwriters, producers, or other artists practically? Many artists think they will be “home free”, as soon as they are given a draft recording contract they propose to sign from the label’s entertainment attorney, and then submit the proposed contract to their own entertainment attorney for what they hope will be a rubber stamp review on all of them. clause. They are wrong. And those of you who once accepted the label’s “first form” contract proposal are laughing, right now.
Just because the U.S. record label granting an artist a proposed “standard form” contract, does not mean that one has to blindly sign a draft contract, or ask his or her entertainment attorney to stamp the proposed agreement before blindly signing it. A number of label forms still in use today are quite obsolete, and have been adopted as full text or individual clauses in whole or in part from other or earlier contract form books or “boilerplate” contracts.
From an entertainment attorney’s perspective, record label clauses and contracts actually read as if they were hastily written—like Nigel Tufnel scribbling an 18-inch Stonehenge monument on a napkin in Rob Reiner’s “This Is Spinal Tap.” And if you’re a musician, movie buff, or other entertainment attorney, I’m sure you know what happened to Tap as a result of that scribble.
It makes sense that the artist and his or her entertainment attorney should carefully review all draft clauses, contracts, and other forms that are passed on to the artist for signature, before signing them. Through negotiations, through an entertainment attorney, the artist may be able to include more appropriate and balanced language in the eventual signed contract, if appropriate.
Inequality and unfair clauses aren’t the only things entertainment lawyers need to remove from the first draft of a proposed contract. Ambiguity must also be removed, before the contract can be signed as one.
For an artist or an artist’s entertainment attorney to leave ambiguity or unfair clauses in a signed contract, will only leave the potential for bad problems for the next day – especially in the context of a signed recording contract that can tie up the artist’s exclusive service for years.
And remember, as entertainment attorneys with longitudinal data on this item will tell you, the artistic “life span” of most artists is quite short – meaning that an artist can tie up his entire career with one bad contract, one bad signing, or even just one bad deal. bad deal. bad clause. Usually these bad contract signings happen before the artist seeks advice and advice from entertainment lawyers.
One of the seemingly endless types of ambiguity that arises in clauses in entertainment contracts, is in the specific context of what other entertainment lawyers and I call a “performance clause” contract. Non-specific commitments in the contract to be implemented, usually turn out to be unenforceable. Consider the following:
Contract Clause #1: “Label must use its best efforts to market and publicize Albums in the Territory”.
Contract Clause #2: “Album, as
submitted to the Label by the Artist, must be produced and edited using only first class facilities and equipment for sound recording and all other activities related to the Album”.
One may not use any of the clauses in a contract. One should not agree to any of the clauses as they are written. One should negotiate contract edits for this clause through their entertainment attorney, before signing. Both clauses set out the proposed contractual performance obligations, which are, at best, ambiguous. Why? Now, with respect to
Contract Clause #1, reasonable minds, including entertainment attorneys on each side of the transaction, can differ as to what “best effort” actually means, what clauses actually mean if different, or whether both parties to the contract mean “best effort”. ” ” means at the time (if any).
Reasonable thoughts, including entertainment lawyers on each side of the negotiation, may also differ as to what constitutes a “first class” facility as “described” in Contract
Clause #2 If this contractual clause ever scrutinized by a judge or jury under the spotlight of US litigation, they may be deemed null and void by ambiguity and unenforceable, and legally read directly from the appropriate contract itself.In the view of this New York entertainment attorney, yes, the clause is absolutely that bad.
Consider Contract Clause #1, the “best effort” clause, from an entertainment attorney’s perspective. How will artists actually enforce those contract clauses against US labels, as a practical matter? The answer is, the artist probably won’t, in the end. If there is ever a contractual dispute between the artist and the label over money or marketing spending, for example, this “best effort” clause will turn into the artist’s actual rights in the contract, and the artist’s entertainment attorney may not be able to help the artist out of it as a practical matter:
Artist: “You violated the ‘best effort’ clause in the contract!”
Labels: “No! I tried! I tried! I really did!”
You get the ID.
Why should an artist leave a label with such an “escape-hatch” contract in a clause? The entertainment attorney’s answer was, “no excuse at all”. There is absolutely no reason for an artist to risk his career by agreeing to an unclear or lukewarm contract marketing commitment clause, if Album marketing
considered an important part of the deal by and for the artist.
This happens often. This would be the artist’s career at stake. If marketing spending during the Term of the contract decreases over time, public recognition and the artist’s career will also increase. And justice should be on the artist’s side, in the contract negotiations that were conducted between entertainment attorneys over this item.
Assuming that the label is willing to commit to the contract’s marketing spend clause at all, then, the artist’s entertainment side lawyer argues, the artist should be entitled to know in advance how his career will be covered by the label’s marketing expenses. dollar.
Indeed, the entertainment lawyer asked, “Why else would the artist sign this deal other than the down payment, marketing fees, and tour support?”. Those questions might be phrased a little differently today, in today’s era of contracts now known as the “360 deal”. Clauses can expand, or move, but a fair argument remains the same in principle.
In essence, it is not only the perpetrator who must comply with the performance clause in the contract. Companies can be asked by entertainment attorneys to subscribe to performance clauses in contracts as well.
In the context of a performance clause – such as a record label’s contractual obligation to market and publish an album – it is the obligation of the artist, and the artist’s entertainment attorney if any, to be very specific in the clause itself about what is contractually. needed. from the record company.
It should never be left for the next verbal side conversation. In other words, working with his or her entertainment attorney, the artist must write a “laundry list” clause that sets out each separate thing the artist wants the label to do. As a partial example:
Contract Clause #3: “To market and publish Albums in the Territory, you, the Label, will spend no less than ‘x’ US dollars on Album advertising during the following time period: ____________”; or maybe,
Contract Clause #4: “To market and publish Albums in Territory, you, the Label, will hire a ___________ PR firm in New York, New York, and you will spend no less than ‘y’ US dollars on publicity for and directly relating to Album (and no other property or material) during the following time period: ______”.
Compare Clauses #3 and #4, with the previous Contract Clause #1 above, and then ask yourself or your own entertainment attorney: Which is scarier? Which is more appropriate?
As for Contract Clause #2 and the definition of “first class facilities and equipment” which can’t be vaguely explained – why not ask an entertainment attorney instead to simply include in the contract a laundry list clause of the names of the five professional recording studios in the city in question, that both parties , labels and artists, prospectively agree as “first class” for definitional purposes? After all, this should be a contract, the entertainment lawyer argued.
“Don’t leave your definition, and therefore a matter of definition, for later documents or at a later date, unless you really want to make a personal financial commitment to getting more litigators involved in the business of debating bad clauses and bad contracts before the courts” .
If you don’t ask, you won’t get it. Through the entertainment attorney, the artist must make the label expressly sign a very specific list of contractual duties in the appropriate clause, monitor the progress of the label thereafter, and hold the label to a certain contract standard that the artist is smart enough to “engraved” in the clause through the entertainment attorney in the first instance .
Again, consider Contract Clause #2, the “first-class facilities and equipment” clause, from an entertainment attorney’s perspective. Note that, unlike Contract Clause #1, this is a promise made by the artist to the label – and not a promise made by the label to the artist.
So, an artist may now ask his entertainment attorney:
“Her shoes are on the other foot, right?”
“The ‘first class’ in that clause is just as vague and isn’t defined by contract standards as ‘best effort’, is it, entertainment attorney?”
The entertainment lawyer replied: “True”.
“So, entertainment attorney, there wouldn’t be any harm in me, the artist, signing that contract clause, would it, because I would be able to release it if I had to, right?”
The entertainment lawyer replied: “Wrong”.
The fact is, contractual ambiguity in the performance clause is a bad thing – in both cases – both in the context of the label’s obligations to the artist; or even in the context of an artist’s obligation to a label. Entertainment attorneys must advise that any contractual ambiguity in any clause may be detrimental to the artist, even in the context of any of the artist’s own obligations to the other party to the contract.
Don’t lean on ambiguity in clauses when running a business and rely on contracts – even if, in your own musical art form, as Cameron Crowe once suggested about my first guitar hero Peter Frampton, you may happen to be writing “obscurantist” song lyrics while taking artistic license. Yourself. Contracts need to be handled differently.
This is how ambiguity in your own contractual commitments to a label hurts you, from an entertainment attorney’s perspective. The old contractual principle of “delivery” of music often found artists required to submit documents to the label, as well as physical material such as the album itself in the form of a master, digital master, or “glass master”, on order for payment.
Under the procedures specified in the contract examined by and between entertainment attorneys, the label may have the right to withhold some (or even all) of the money, and not pay the artist that money until “delivery is complete” under the delivery and delivery schedule clauses in the contract.
As one might expect, therefore, “delivery” is a specific event whose occurrence or non-occurrence under contract is often contested and sometimes even arbitrated or contested by and between artists, labels, and the entertainment attorneys and litigators who represent them.
It is the obligation of the artist and the artist’s entertainment attorney to prevent the label from making the pretext of “failed delivery” under any clause in the contract as an excuse for non-payment. In the context of Contract Clause #2 above, “first class facilities and equipment” could easily be that pretext – the artist’s Achilles Heel in a test-litigation contract contested between entertainment attorney litigators.
Labels can easily take the position via advice or otherwise that the submitted material is not made in a “first class” facility as contractually required in the relevant clause, no matter what facility is used. Why? Because “first class” was never defined in any clause in the contract documents by the entertainment lawyers on both sides, as a certain perks.
And if there isn’t a clause in the contract that explicitly defines “first class” as an entertainment attorney advises that it should be done, then the artist could run out of money, at least for the entire duration of the multi-year litigation that could take place. have avoided over what the 2 words stupid mean.
Worse, meanwhile, labels may be holding on to money and laughing at the artist behind the artist for their lack of contractual knowledge. From the perspective of the entertainment lawyer side of the artist, the two possible events and scenarios of the horror show, are intolerable. They can be avoided with one better clause – often the narrow reed on which an artist’s success rests.
How about the inscription? How can foreseeable contract delivery disputes in the context of Contract Clause #2 be avoided by entertainment attorneys? The simple solution in this case, again, is for the artist’s entertainment attorney to take a few extra minutes during negotiations, and textually list, in the draft counter-contract the draft is sent to the label, even if it’s a short clause, which is actually a facility meant to used.
Entertainment attorneys on the artist’s side may request that labels explicitly approve a list of perks, by name and address, in the text of the contract. That’s what contracts are for, as an entertainment attorney will tell you. When used properly, contracts and clauses are really just tools for avoiding disputes. Entertainment contracts should be a dispute avoidance tool exchanged between entertainment attorneys.
Also note that contractual ambiguity in a clause can be detrimental to the artist, regardless of whether it is embedded in one of the artist’s performance obligations, or even in one of the label’s performance obligations! Moral?: List all performance obligations.
For them it becomes a separate and understandable task, clause by clause. Approach it in the same way as an entertainment lawyer. Better yet – ask someone for help before forming an opinion on a clause or signing a contract.