In recent months, artists across the industry at every level have been embroiled in controversy surrounding payment and compensation.
In an effort to turn these unfortunate events into a teachable moment, lawyers Kamal A. Moo and Erin M. Jacobson, Esq give their expert opinions on how artists can avoid being taken advantage of. We do have to clarify that these comments are not legal advice, and do not create an attorney-client relationship with any reader.
Starting with the basics, Moo explains that “to have a valid contract, you just need an offer, acceptance, and consideration,” which Jacobson helps to define as “something in exchange, like payment.” Moo also confirms that any agreements made over Twitter DM or through an email exchange have the potential to be as legally binding as a contract. The problem, they both note, is how much of these agreements can be left up to interpretation.
Moo specifically states, “For example: when must the producer turn over the tracks? Does the producer need to deliver a ‘tracked out’ version of the beat or just a two-track version? How will the music publishing rights be apportioned? Who will own the copyright to the sound recording? These are all important questions that should be addressed.”
With all these fine details missing from a casual Twitter back and forth, both Moo and Jacobson “always suggest having a formal contract drafted, that accurately reflects the agreed upon terms.” Now, if you’re a young artist and the concept of a contract seems daunting—don’t worry. Jacobson suggests that “if an artist is not able to hire an attorney, they can alternatively seek a template from a site like Indie Artist Resource to have some contractual protection.”
Though both Moo and Jacobson highly recommend hiring a lawyer, Moo points out that “it isn’t necessary to hire a lawyer to draft an agreement.” Jacobson goes further to clarify that “notarization usually is not required, but signatures are necessary.” Even taking the time to write a more substantial agreement over email (which addresses the questions Moo outlined above) will put you in a better place than simply asking how much for a beat or for a feature verse.
For mid-tier artists with more expendable funds, Moo notes that if you are financially ready to hire “producers, engineers, studios, etc., it’s also worth it to spend some money to hire an attorney to properly protect [your] interests. Otherwise, the money they put toward production could be wasted.”
If you’re determined to execute your business transactions over email, there is still some crucial legal language to include, which will put you on better footing. As explained by Moo, “One important component of a formal agreement is called the ‘integration clause,’ which says that this written document is the full and final agreement between the parties and it cancels all prior negotiations.” He goes on to detail the benefits afforded to both parties when adding such a clause:
“One of the problems with an agreement that is negotiated back and forth over email is that, even though you may have a valid contract, the terms are spread out over a chain of several emails,” Moo continues. “Things can get even more complicated if the parties also speak on the phone or via text. On the other hand, if you have a formal agreement with an integration clause, then the parties are agreeing that all the negotiations via email, phone, text, Twitter, etc. don’t matter anymore, and what’s contained in this written agreement is the final contract between the parties.”
Language and clarity are key. As Jacobson explains, these contracts have “complex legal language involving copyrights and industry specific parameters that an experienced attorney will be familiar with and an artist might not.” Still, with or without a contract, you want your negotiations to be as clear and specific as possible.
An important detail to include in your emails involves ownership. As Moo explains, “if an artist is purchasing a beat from a producer, the artist would want to own 100% of the rights in the recording. If there isn’t clear language in the agreement transferring ownership, then the producer could end up retaining some rights.”
But let’s imagine you’re caught in one of these unfortunate situations where you sell a beat and don’t get due credit or pay for a verse or a beat that never comes. What are your options?
Moo explains that it would “certainly be more difficult” to seek restitution without a contract, but it can be done. The real question is the value proposition: “If an artist has spent a lot of money, then they could try to hire an attorney to represent them. However, if they only spent a few hundred or a few thousand dollars, it may not be cost-effective to hire counsel since most attorneys charge on an hourly basis.”
In the event that you’re doing business with another artist or producer across state or even country lines, Moo attests that “taking an artist or producer to small claims court might not be a viable option.” It’s better to take precautions early and not let matters reach the point of a legal battle.
With all of that being said, the moral of the story is twofold. First, if you’re an aspiring artist, we highly advise that you do your research, reach out to an attorney or utilize a template, and at the very least write up an agreement over email that offers more details than a simple DM. Most importantly, if a great artist is in your inbox, don’t take advantage of them because they’re eager and trusting.
Source: Donna-Claire Chesman