By Sadayah Q. DuRant-Brown, Esq. and Michael Farhi, Esq.
Entertainers and artists have forever chased their dreams of a big studio or recording contract. But with modern platforms such as the internet and social media, artists now have a direct route to a worldwide audience. In fact, famous people such as Justin Bieber, American Idol’s Tori Kelly and Shawn Mendes, just to name a few, have been discovered on YouTube, Instagram and TikTok right from their own homes. The downside is that it’s too easy to access an artist’s work. This makes it even more important for them to protect their rights with a contract that takes into consideration how their intellectual property could be exploited.
Here are some basic provisions that every artist’s contract should include, followed by some Q & A with acclaimed Keyboardist and Composer Jeffrey Scott Lawrence.
- Defined Terms
Every contract should include defined terms. These explain the meaning of terms in your business that might be ambiguous or misinterpreted by someone not familiar with them. For example, time periods referenced in the contract should be defined, i.e. “Initial Term.” Also, this is the area that may state that you will be referred to as “The Artist” throughout the contract.
- Services to be Performed
An entertainment contract should also include a section that outlines the specific services to be performed by each party to it. It’s important for an artist to be thorough here when listing the duties of the other party, whether it is a record label, manager, venue, etc.
- Term, Termination, Timeline
The “Term” provision because it states the duration of the contract, how long it will be in effect. Artists should be clear on when all parties’ duties and obligations are complete. In addition, the contract should include a section that not only states when the agreement terminates, but also what happens after termination or cancellation of the agreement. The term provision of an entertainment contract should include a basic timeline for performance by all parties.
A territory clause defines what parts of the world the agreement covers. This could include, for example, licensing rights or music tour locations.
A compensation clause is obviously important because it clearly states the amount of compensation to be given to each party, in return for the performance of the contract. The compensation provision must be very detailed and include things such as royalties and/or advance payments. It should mention recording costs or recoupment of money invested. Sometimes the parties receive compensation even after completion of the term of the agreement. For example, music artists may continue to receive royalty payments for records purchased.
- Scope of Rights
The “rights” clause explains the rights of all parties involved. It is important that the artist clearly understands ownership, creative control, and exclusivity. If it requires a recording artist to sign to a label exclusively, he needs to be stated in the contract. An exclusivity provision means the artist cannot record for another label without permission from the label, nor can they leave the contract if it does not satisfy them. On the other hand, the label will most likely be able to sign and promote as many artists as it would like. The contract should also mention assignment of rights and whether the parties may grant rights to other parties, for example, in case of a merger. An entertainment contract should address any post-term rights, duties, and obligations among the parties. It is wise to put these issues in the contract to avoid possible litigation later.
- Representations and Warranties
An entertainment contract should include an allocation of risk between the parties. In the representations and warranties clause, the parties should address intellectual property rights, which could include copyrights, trademarks, or privacy/publicity rights. It might also include licensing limits, limits on original works, and indemnification clauses.
Finally, any contract should be signed by the parties to be charged. In an entertainment contract, all parties involved should sign the agreement which shows assent and agreement to all terms of the contract. This sounds obvious, but in the electronic age in which we live, many contracts are “signed” with an email saying “I agree.” That may not be sufficient.
A Musician’s Perspective
Musicians, painters, writers and actors – are all considered artists. But as these creative types hone their craft, they don’t always focus on the business part of their careers. With this in mind, we spoke with critically acclaimed Keyboardist and Composer Jeffrey Scott Lawrence. A Teaneck, NJ native, Jeff knows a thing or two about the importance of the business end of being an artist. Starting at the young age of 10-years-old, Jeff’s been playing piano throughout his career. He has played in clubs, recorded CD’s and has really built a following of jazz music lovers. Along the way, he’s learned one major rule: What you don’t know can hurt you.
A. I started piano lessons as an adolescent. By the time I was a teenager, I began playing in various bands. I was serious about studying music in High School and continued to study in my college years.
Q. What lessons, good and bad, have you learned in the business?
A. I learned that it’s wonderful to have talent, but one needs to be mindful of who they expose their talent to and how.
Q. Is it important for an artist to have everything in writing?
A. I think in the music business it’s important to not only have contracts regarding any serious business arrangements, but also to copyright any compositions that are to be publicly released.
Q. Do you think that artists and entertainers are too loose about that?
A. I can’t speak to what other artists and entertainers do. But in general, any artist can be taken advantage of if they are not knowledgeable about what safeguards they may need to have in place to protect their work.
Q. What are the most important protections to have?
A. Contracts and copyright protection. Hands down.
Q. What is your advice to someone starting out in this business?
A. To me, being a writer and performer, having my music protected with a copyright is the most important measure of protection. And in any deal or transaction with 2nd parties, having a contract is very important. My advice would be to learn as much as you can about the business end of the art because it is always something that is in flux.
Entertainment contracts can be very complicated to decipher. They are legally binding agreements that can cause an artist to be exploited, if not handled properly. It’s essential to have it a trusted attorney prepare or review any entertainment contract before signing it.
Sadayah Q. DuRant-Brown, who worked with me on this blog, is an attorney in New Jersey who graduated from Rutgers School of Law. This will be her last contribution as a Staff Writer and I wish her the best going forward in her career.