While independent recording artists have a great deal of freedom to market and distribute their own original works, especially with the advent of digital technology and the Internet, the terrain in which they work is still not without substantial risks and pitfalls.
I have counseled several independent recording artists, some who are on the cusp of breaking into the mainstream (they know who they are!), and have repeatedly reviewed promotional and marketing agreements for them that only serve the benefit of the promoter and distributor, not the recording artist.
The lopsided agreements which I have reviewed and often counseled my client not to sign put the very thing that makes being an independent recording artist attractive at risk; ownership and control over their music.
When reviewing a promotional agreement, recording artists should be very wary of any agreement that gives ownership rights to the promoter.
Once ownership is lost, the recording artist loses the ability to sell his or her work and receive royalties and other valuable consideration.
As I discovered in the recent litigation Local 802 initiated against the Knitting Factory’s record label, once ownership of a recording is transferred from the recording artist, it is extremely difficult if not impossible to retrieve.
As a recording artist becomes more popular, their recordings become more and more valuable.
An artist’s ownership rights, therefore, should not be parted with lightly.
Here are several tips.
It is best to enter into an agreement that has a specific duration and allows the recording artist to continue to promote his or her own works.
Provisions permitting the termination of the agreement should be clear and unambiguous.
A promoter should have a demonstrable track record and should have a listing of contacts and references. You should call other recording artists you know and see if they have worked with the promoter before. You should find out what results they received.
Usually, promotional agreements require the recording artist to part with a percentage of their royalties on any work which is actually exploited by the promoter. This is understandable, since this provides the promoter with compensation for their often valuable efforts.
However, make sure that this provision only limits royalties to the venture actually obtained by the promoter.
Permitting a promoter to obtain royalties in perpetuity for a particular recording regardless of who created the recording is excessive.
It is recording artists who create the work, not promoters. Promoters should not receive a windfall of the royalties on a recording they had no involvement in creating.
Finally, promotional agreements often contain a provision that permits the agreement to be enforced only in certain jurisdictions.
One agreement I reviewed only allowed legal proceedings to be commenced in Australia.
Make sure that if you reside in New York, the agreement is also enforceable in New York.
Anything else renders the agreement essentially unenforceable.
These days, being an independent artist can be exciting and rewarding.
One can truly devote themselves to their music as an independent.
However, when it comes to promotional agreements, just remember the famous Motown lyric: “You better shop around.”
Harvey Mars is one of Local 802’s legal counsel. Legal questions are welcome from 802 members. E-mail them to Jurmars566@aol.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.
ABOUT HARVEY MARS
Harvey Mars has been a member of Local 802 since 1992 and has served as one of its counsel since 1995. His legal column has appeared regularly in Allegro since 2003.
Mars graduated from Oberlin College in 1982 with a B.A. and studied trombone for four years at the Oberlin Conservatory of Music as a non-degree student.
Since his graduation from Albany Law School in 1985 he has served as counsel to several New York labor unions in addition to Local 802, including District Council 1707, AFSMCE, Teamsters Local 102, TWU Local 562, the International Longshoremen’s Association, Steamfitters Local 638, the Newspaper and Mail Deliverers Union, the Mason Tenders District Council of Greater New York and IBEW Local 25.
In 1995, he earned an M.S. in industrial and labor relations from Cornell’s School of Industrial and Labor Relations, in a joint program offered by Cornell University and Baruch College.
His master’s thesis, “An Overview of Title I of the Americans With Disabilities Act and its Impact Upon Federal Labor Law” was published in the Spring 1995 volume of the Hofstra Labor Law Journal.
Mars has written and published extensively on labor and employment-related issues and currently serves as an editor for the National Lawyers Guild’s treatise “Employee and Union Member Guide to Labor Law.”
In addition to his traditional labor practice, Mars handles all forms of employment-related litigation in state and federal courts and city and state administrative agencies, including suits involving employment discrimination and employee benefits.
He has several reported decisions in both state and federal court pertaining to these litigations.
He also practices entertainment law and counsels recording artists as well as professional musicians.
He is a member of the AFL-CIO Lawyers Coordinating Committee and the National Employment Lawyers Association, and is also a sustaining member of the New York State Bar Association. He is also a member of the Beta Gamma Sigma honorary society.