Producing and editing recorded music is clearly a special art form. But so too the acts of entertainment lawyers in compiling contractual clauses, contracts and language in general. How could the legal arts of entertainment lawyers composing clauses or contracts affect musicians, composers, songwriters, producers or other artists as practical problems? Many artists think they will be “free from home”, as soon as they complete the draft record contract proposed to sign from a label entertainment lawyer, and then throw the proposed contract to their own entertainment attorney for what they hope will be a rubber stamp review on all clause. They are wrong. And for those of you who have ever received a “first form” contract the label is laughing, right now.
Just because a US record label puts forward the proposed “standard form” contract artist, does not mean that someone must sign a draft contract blindly, or ask someone’s entertainment lawyer to label the proposed agreement before signing it blindly. A number of label forms that are still in use today are quite outdated, and have been adopted as full text or individual clauses in whole or in part from contract forms or “boilerplate” contracts from other or previous labels. From the point of view of entertainment lawyers, a number of label and contract recording clauses really read as if they were hastily written – like Nigel Tufnel wrote the monument of Stonehenge 18 inches above the napkin on Rob Reiner “This Is Spinal Tap”. And if you are a musician, movie fan, or other entertainment lawyer, I’m sure you know what happened to Tap as a result of scrawl.
It makes sense that an artist and entertainment lawyer must carefully review all the clauses, contracts, and other forms that are forwarded to the artist to be signed, before signing them. Through negotiations, through entertainment lawyers, artists may be able to interpret more precise and neutral languages in contracts that are finally signed, if needed. Injustice and unfair clauses are not the only things that someone’s entertainment lawyer needs to remove from the draft proposed first contract. Ambiguity must also be removed, before the contract can be signed as one.
For artists or artist entertainment lawyers to leave ambiguity or unequal clauses in signed contracts, it will only leave potential bad problems for the day – especially in the context of a signed recording contract that can be binding exclusively on an artist’s service for years. And remember, as entertainment lawyers 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 his entire career with one bad contract, one bad signing, or even only one bad clause. Usually the signing of a bad contract occurs before the artist seeks advice and advice from an entertainment lawyer.
One type of seemingly endless ambiguity that appears in clauses in entertainment contracts, is in the specific context of what I and other entertainment lawyers refer to as “performance clauses” contracts. Non-specific commitments in the contract to do, usually do not have legal force. Consider the following:
Contract Clause # 1: “The label will use the best efforts to market and publish Albums in the Territory”.
Contract Clause # 2: “The Album, as
sent to Labels by Artists, must be produced and edited using only first-class facilities and equipment for voice recordings and all other activities related to Albums “.
Someone should not use a clause in the contract. Someone should not agree with the clause as written. One must negotiate the change of contract for this clause through one’s entertainment lawyer, before signing. The two clauses propose contractual obligations that are, at least, ambiguous. Why? Well, with regard to Contract Clause # 1, common sense, including those of entertainment lawyers on each side of the transaction, can be different from what “best effort” means, what clause means if different, or what the two parties in the contract intended “efforts best “means at that time (if any). Reasonable thoughts, including entertainment lawyers on each side of negotiation, can also be different from what is a “first class” facility as “explained” in Article Contract # 2. If these contractual clauses have been examined by a judge or jury in under the heat of US litigation, the clauses may be considered null because they are unclear and unworkable, and legally read directly from the appropriate contract itself. In view of this typical New York entertainment lawyer, yes, the clause is really that bad.
Consider Article Contract # 1, the clause “best effort”, from the point of view of an entertainment lawyer. How will the artist truly enforce the contractual clause as opposed to the US label, as a practical matter? The answer, the artist might not, at the end of the day. If there is a contract dispute between the artist and the label for money or marketing expenses, for example, this “best effort” clause will change into the Achilles Heel artist’s contract, and the artist’s entertainment lawyer may not be able to help the artist as a practical matter:
Artist: “You violated the ‘best effort’ clause in the contract!”
Label: “No! I tried it! I tried it! I really did it!”
You got the idea.
Why does the artist have to leave the label with such a “run-out” contract in the clause? The answer to the entertainment lawyer is, “there is no reason at all”. There is absolutely no reason for the artist to endanger his career by agreeing to a vague or warm contract marketing commitment clause, if Album marketing is
considered an important part of the agreement by and for the artist. That often happens. That will be the artist’s career at stake. If marketing spends the entire validity period of the contract decreasing over time, so too can the recognition and public career of the artist as a result. And equity must be on the artist’s side, in contractual negotiations carried out between entertainment lawyers for this item.
Assuming that the label is willing to commit to the contractual marketing expenditure clause, then artist-side entertainment attorneys argue, the artist must have the right to know in advance how his career will be protected by the expense of marketing dollar labels. Indeed, ask entertainment lawyers, “Why did the artist who signed this agreement aside from advances, marketing fees, and tour support?”. These questions might be expressed a little differently nowadays, at the present age of the contract now known as the “360 agreement”. A clause can evolve, or move, but an equivalent argument remains in principle the same.
The point is, not only players must be held for performance clauses in contracts. Companies can be asked by entertainment lawyers to subscribe to performance clauses in contracts, too. In the context of performance clauses – such as label label contractual obligations to market and publish albums – it is the duty of the artist, artist and entertainment lawyer if there is, 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 an entertainment lawyer, the artist must write a “clothing-list” clause that contains every separate thing the artist wants. As but some examples:
Contract Clause # 3: “To market and publish Albums in the Territory, you, the Label, will spend no less than ‘x’ US dollars for advertisements for Albums during the following time period: __“; or maybe,
Clause Contract # 4: “To market and publish Albums in the Territory, you, the Label, will hire a PR company in New York, New York, and you will cause no less than ‘y’ of US dollars to be issued for publicity for and related directly with Album (and no property or other material) during the following time period: __ “.
Compare Clauses # 3 and # 4, for the previous # 1 Contract Clause above, and then ask yourself or your own entertainment lawyer: Which is more hortatory? Which is more appropriate?
The Contract Clause # 2 and its unclear definition of “first class facilities and equipment” – why not have someone’s entertainment lawyer, but only include in the laundry list clause of the names of five relevant professional recording studios in the city, that both parties, labels and the artist, prospectively agreed to be “first class” for definition purposes? This should be a contract, after all, entertainment lawyers argue. “Don’t leave your definition, and therefore the problem of definition, for later or later documents, unless you really want to make a personal financial commitment to make more litigators fixated in businesses that debate bad clauses and bad contracts before the court”.
If you don’t ask, you don’t understand. Through entertainment lawyers, the artist must make the label clearly sign on a very specific list of contracts of tasks in the appropriate clause, monitor the progress of the label afterwards, and hold labels for certain contract standards that are smart enough for the artist to “carve” in the clause through entertainment lawyer in the first example.
Again, consider Contract Clause # 2, the “first class facility and equipment” clause, from the point of view of an entertainment lawyer. Note that, unlike Contract Clause # 1, this is a promise made by the artist on the label – and not a promise made by the label for the artist.
So, an artist might now ask his entertainment lawyer:
“The shoes are on the other leg, right?”
“The ‘first class’ in the clause is an unclear and unclear contractual standard as ‘best effort’, right, entertainment lawyer?”
Entertainment lawyer answer: “Right”.
“So, entertainment lawyer, it won’t hurt me, the artist, signing the contract clause, will be there, because I will be able to shake it if I have to, right?”
Entertainment lawyer answer: “False”.
The fact is, contractual ambiguity in performance clauses is a bad thing – in both cases – whether in the context of label obligations for artists; or even in the context of the artist’s obligation on the label. Entertainment lawyers must suggest that any contractual ambiguity in any clause can be detrimental to the artist, even in the context of one of the artist’s own obligations to the other party making the contract. Don’t rely on the center of ambiguity in clauses when doing business and relying on contracts – even if, in your own form of musical art, like Cameron Crowe once suggested my first guitar hero Peter Frampton, you might happen to write “obscurantist” song lyrics when taking artistic licenses Yourself. Contracts must be handled differently.
This is how the ambiguity in your own contract commitment to the label harms you, from the point of view of an entertainment lawyer. The old contractual principle of “shipping” music often finds artists who are required to submit documents to labels, as well as physical material such as the album itself in the form of a master, digital master, or “glass master”, ordered to be paid. Based on the procedures described based on contracts examined by and between entertainment lawyers, the label may have the right to hold a portion (or even all) of the money back, and not pay the money to the artist until “delivery is completed” under the shipping clause and delivery schedule in the contract . Therefore one can guess, “delivery” is a definite event that events or not occur under contracts often contested and sometimes even arbitrarily or litigated by and between artists, labels, and entertainment lawyers and litigators who represent them.
It is the duty of the artist and entertainment artist lawyer to prevent the label from the pretextual “drummer-up” failing delivery under each clause in the contract as an excuse not to pay. In the context of Contract Clause # 2 above, “first-class facilities and equipment” can easily be the pretext – the artist’s Achilles Heel in a test-litigation contract that is contested between entertainment lawyer litigators. The label can only take position through advice or vice versa that the material sent is not made in a “first class” facility such as contractually required in the relevant clause, no matter what facilities are used. Why? Because “first class” is never defined in a clause in a contract document by one of the entertainment lawyers on both sides, such as certain facilities.
And if there is no clause in the contract that is explicitly defined as “first class” as an entertainment lawyer would suggest that it must be done, then the artist can issue the money, at least for the entire duration of a multi-year litigation that can be avoided from what the word 2 stupid words. Even worse, meanwhile, the label may hold money and laugh at the artist behind the artist’s back because of a lack of contractual awareness. From the point of view of the artist’s side of the entertainment lawyer, both the horrific event and the scenario, cannot be tolerated. They can be avoided by a single, better clause – often a narrow reed that is the basis of the success of an artist. (Ask Billy Joel. Ask Neil Young. Ask Bruce Springsteen. Ask George Michael. Ask John Fogerty).
What about prescience? How can future contractual submission disputes in the context of Contract Clause # 2 be avoided by entertainment lawyers? The simple solution in this case, again, is for the artist’s entertainment attorney to take a few extra minutes during negotiations, and the text list out, in the draft reply the proposed contract is sent to the label, even if the concise clause is single, the facility actually intended to be used. The artist-side entertainment lawyer can attempt to make a contractually explicit label pre-approving the list of facilities, based on name and address, in the body of the contract text. That is a contract for, however, as an entertainment lawyer will notify you. When used properly, contracts and clauses really only consist of dispute avoidance tools. Entertainment contracts must be a means of avoiding disputes exchanged between entertainment lawyers. Also note that contractual ambiguity in a clause can be detrimental to the artist, regardless of whether it is attached to one of the artist’s performance obligations, or even in one of the label’s performance obligations! Moral: List all performance obligations. Divide them into clear and understandable tasks, clause after clause. Approach in the same way as an entertainment lawyer. Better yet – ask for help from one before forming an opinion about a clause or signing a contract.