Over the last few years Local 802’s Recording Department has been receiving information and complaints from musicians engaged for recordings and films that some companies and producers have requested the musicians to sign waivers and/or releases for publicity purposes. Often times these waivers have included language stating that the musician had relinquished reuse or new use rights, even though an AFM signatory would be filing the contract with the local.
In order to eliminate confusion and establish a comprehensive policy, the AFM recently published the following notice in the Officers’ Edge to inform locals and musicians of their rights under law and under AFM agreements. We trust this will help recording musicians in their relationship with the recording companies, producers, contractors and others who hire musicians.
Consent/Waiver Requests from Phono Party Signatory Companies
Regarding an Individual Musician’s Right of Publicity
Some of the companies which are party signatory to the Phonograph Record Labor Agreement (PRLA) are insisting that, as a condition of employment for a particular session, each musician sign a waiver agreement providing that the musician agrees to allow the company to use the musician’s name, likeness or facsimile on a CD jacket and, more generally, in packaging, marketing, exploiting or promoting the master.
Please be advised that the Federation, solely on the basis of its capacity as the exclusive bargaining representative, does not have the authority, as a matter of law, to act on behalf of individual musicians with respect to any such highly personal, individual right. It is a well-settled principle that the right to one’s name, facsimile and/or signature is an individual right (a so-called “right of publicity”) which a union cannot assume merely because it is the exclusive bargaining representative.
What this means in practical terms is that if a company approaches any musician with a specific request that the musician consent to or waive any right to payment for the use of that musician’s name, signature, or facsimile, that is properly a negotiable matter between the musician (and/or his/her individual agent) and the company. The individual may choose to consent without payment or, instead, demand a negotiated fair price in exchange for his/her consent. That is strictly a matter for those two parties to resolve. The Federation does not – indeed, can not – have any role in that process.
By marked contrast, when a company seeks a consent or waiver of any payment with respect to the subsequent use of a master – a request that would directly conflict, for example, with the reuse and new use provisions of the PRLA – the Federation’s position is that the company is prohibited from requesting that kind of a waiver from an individual musician and, indeed, any such waiver or consent signed by a musician is null and void. In this connection, the Federation succeeded in obtaining Industry’s agreement to the following relevant provision in the PRLA:
The company shall not require, request, induce, or in any manner attempt to require a waiver or otherwise influence any person covered by this agreement to play, or perform for recording, or render services pertaining thereto, except as provided by the Agreement. (Amendment to Article 2 (p.2), PRLA)
Because this is an important and technical subject area, please feel free to contact the AFM President’s office if further guidance or assistance is necessary. You may also contact Local 802’s Recording Department or the Recording Vice-President’s office for further information.