Artist’s position

Here is the article discussing transferred rights and various contract types, as I had promised. Without any more delay, let’s get straight to the point and dive into the subject.

Frequently, artists find themselves in a situation where they must relinquish certain original rights in order to pursue their business objectives. In the execution and management of their business affairs, the responsibility lies with the artist’s management (whether outsourced or not) when it comes to granting or licensing these rights.

This article delves into the processes of assigning, granting, or transferring rights—depending on the terminology employed—and examines their implications for the artist’s personal life, decision-making authority, and economic circumstances. Each instance of rights transfer imposes certain limitations on the artist’s standing. A fundamental prerequisite for exercising these rights should be a corresponding compensation, typically in the form of royalties. Undoubtedly, copyright stands out as the paramount commodity in this industry.

The objective of artist management is to construct and cultivate the artist’s enterprise in a manner that aligns with their requirements and aspirations. The artist’s merchandise encompasses their persona, live and recorded performances, and, naturally, the music that forms the core of their acts. All of these endeavors are intertwined with distinct copyright considerations. Consequently, obtaining the artist’s explicit consent is typically imperative.

Given the unpredictable nature of success, caution is advised when considering rights assignment. The substance, potency, duration, and extent of these granted rights hold significance in evaluating the intentions and dedication underlying each transaction, as well as the potential partner the artist seeks to engage with. To counterbalance the transfer of rights, it is prudent to ensure reciprocity or compensation. Hence, the transfer of rights should never be devoid of remuneration. The artist’s business strategy and current level of popularity serve as indicators for identifying pertinent rights and determining exclusions.

The cardinal rule remains that no rights should be bestowed gratuitously

The rights subject to transfer fall into categories of fixed-term, indefinite, or permanent. The most comprehensive relinquishments occur in instances of perpetual transfers. The music publisher’s entitlement can mirror that of the author (songwriter), where their copyright claim endures for the entirety of the copyright’s lifespan. However, the publisher’s right diverges from the author’s in being derivative rather than original. This right comes into effect upon a duly executed music publishing contract.

This agreement bestows upon the music publisher substantial rights originally belonging to the authors themselves. The contract not only constrains the artist for the agreement’s duration but extends its impact beyond. To warrant this arrangement, the artist must ensure the publisher fulfills their role; otherwise, justifying the music publishing agreement becomes challenging. The music publishing agreement affords the publisher up to 50 percent of the copyright-related revenue from the songs.

It’s important to note that the termination of a music publishing contract doesn’t always nullify the publisher’s rights to songs encompassed by the contract during its term. Even if the active phase of the parties’ agreement concludes, the pertinent rights of the publisher remain in effect.

A parallel permanent entitlement can be linked to recording agreements. In such scenarios, permanent rights pertain to the phonograms and additional recorded content that the artist has produced for the company during the contract’s duration. According to the agreement’s terms, the record company acquires the role of the financial producer, granting them the producer’s right for the valid span of protection.

Typically, the record company gains authority over decision-making regarding the phonogram, similar to how the music publisher obtains control over the catalog they manage through the music publishing agreement.

This, for instance, has an impact on the artist’s standing through the potential inclusion of a non-competition clause within the agreement. Broadly speaking, the artist is prohibited from recording any songs for other labels during the duration of the recording contract. The standard practice designates this protection period as five years. Consequently, the artist is free to re-record the same songs once five years have elapsed since the contract’s conclusion. This restriction is intended to provide the company with an incentive for their investment, or at least that’s its purpose.

Hence, the fundamental principle is to avoid granting these rights more extensively than necessary.

We are dealing with two fundamental concepts: a musical composition and its recording. It’s crucial never to conflate these two concepts. This forms the crux of this article as well. The duration of a music publishing contract does not equate to the terminology of a recording contract, even though these two aspects are closely interconnected. While the music publishing agreement pertains to the song itself, the recording contract is associated with its performance captured in a recording. Consequently, the subject of protection differs despite involving the same content. This division holds particular significance for artists who both create and perform their music.

To implement their business strategy, an artist can also employ fixed-term grants. This approach has gained traction among contemporary artists. It ensures that the artist does not relinquish their rights beyond necessity.

For instance, a booking agreement grants the agency the right to arrange performances within the bounds specified by the contract. As previously highlighted, the transfer of rights in these cases is frequently long-term, spanning wide geographical regions, and exclusive in nature. This implies that artists must navigate through contracts across numerous interconnected business domains simultaneously. This intricate situation often leads to complications when dealing with contractual relationships.

The artist’s various business facets are closely interlinked. If certain sub-areas encounter difficulties, the impact ripples through other spheres of activity. To address this uncertainty, it’s prudent to incorporate contingency measures. The artist would certainly not be content if performances are planned, streaming arrangements are in place, yet no follow-through is ensured for some unforeseen reason. If the artist cannot meet existing demands, or if there’s a mismatch in agendas, being tied to an exclusive contract that hinders progress in other avenues becomes undesirable.

Each agreement should include an exit strategy in case the collaboration becomes unviable due to escalated issues between the parties, or if the partnership simply proves unproductive. This underscores why each rights transfer should ideally carry conditional terms, if feasible.

When crafting the artist’s business plan, effective risk management assumes paramount importance. While the business plan primarily centers on upholding and enhancing the artist’s financial prospects, the agreements should factor in the possibility of unforeseen deviations. Consequently, hybrid contracts should be avoided. It’s not uncommon for enthusiasm to dominate the negotiation phase. The artist’s stakeholders (record companies, music publishers, booking agencies, external investors, merchandise holders, etc.) might express interest in participating across domains beyond their core expertise.

In an ideal scenario, everything would remain under the purview of a competent, dedicated, and trustworthy group, with disagreements unlikely to arise over time. Unfortunately, such ideals rarely align with reality. All it takes is a single key player’s departure, an industry shift, or a shift in priorities to completely alter the trajectory of operations.

Amidst all these complexities, it’s easy to lose sight of the core objective. Driven by the copyright dimension and its alignment with the business plan, the focus remains on the transfer of rights and the value attributed to this process. Each business segment necessitates distinct organization, even if managed by the same entities. Each sector should be treated as an independent entity, not reliant on others in case of contingencies. This approach facilitates the efficient elimination of non-functional aspects, retaining only the effective components.

The boundaries delineated by contract types become evident in the ensuing example. Parties often find themselves engaged in an extensive collaboration that spans multiple aspects of an artist’s business. In such circumstances, the parties are likely to resort to contract types familiar within the industry. If any of these agreements resemble a recording contract, it might inadvertently suggest the presence of an exclusive right across all agreements. If this isn’t the case, clarifications become essential.

When granting rights that are inherently yours, exercise caution in ensuring they aren’t extended beyond the parameters essential to your business plan. Never surrender rights unconditionally. Should the promised performance of the counterparty fall short, you must retain the ability to respond. Particular prudence is advised concerning music publishing contracts, given their potentially perpetual nature. Every song incorporated within the music publishing agreement grants the publisher a standing that confers the right to administer the songs and secure up to 50 percent of the revenue generated through copyright.

Irrespective of your enthusiasm for a new partner, it’s crucial to maintain a clear distinction between plans and agreements. Terminology that ventures beyond the intended scope should be subjected to critical scrutiny. This is to avoid any interpretation that might suggest an expansion of rights beyond the original purpose. The same caution applies to options. For them to be valid, their realization should be reasonably feasible. If an artist embraces an option that surpasses the partner’s resources or willingness, their entire career could be jeopardized.

Mixed-type contracts can introduce challenges, even within functional relationships. A well-functioning management agreement between parties might coexist, but issues could arise in the realm of production collaboration. If the agreement is predominantly exclusive, the productive components might also be deemed exclusive. In such an asymmetrical scenario, the management side might readily step back from the production aspect. However, if disputes were to emerge for any reason, the contract and its contents would undoubtedly require interpretation.

While some of the examples in this article might seem extreme, it remains prudent to maintain a clear demarcation between contracts – even for your own peace of mind. By easily excising obsolete elements from any collaboration, it becomes simpler to strategize for the future.

If the topic piques your interest further, consider reading this book. It provides more examples of contemporary methods to safeguard your rights.