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by: Shelly Harris / Entertainment Attorney
QUESTION: I signed with an "indie" label as a solo artist
over two years ago. According
to my contract, I was able to deliver them the record I had already
recorded as my demo, with just a few tweeks made to the production, which
they would then have mastered and distributed. However, to date, they have
still not released my record. What can I do? ANSWER:
As
always, your “remedy” for this situation will turn on the particular
provisions of your agreement with the label. At the outset, I will say
non-release of your CD/album after two years is far too long. Most labels
distribute within six months after mastering. Otherwise, the music may
become “stale,” artist(s) lose momentum, etc.
You haven’t stated
the label’s explanation for the non-release, but there are usually two
or three reasons why a label will “shelve” an album.
First, they may be having financial difficulties or marketing and
distribution problems. If the
label is in danger of going bankrupt, the album may never be released,
unless you “buy” out your own contract. However, if you had a
“guaranteed release” provision in your contract, which indicates the
date by which a satisfactory album must be released, then, typically, you
send the label notice that the agreement is terminated, and you are free
to take the album to another label after reimbursing any costs to the
original label. Other reasons a label
might legitimately shelve an album is because of its content or quality.
There could be obscenity or legal issues regarding titles, artwork, song
ownership or “sampling” that have not been cleared by the agreed upon
release date. If you need to
get “clearances” or licenses for use of any of the material on the
record, you may have to pay for such arrangements yourself. (Whether you
or the label is responsible for the costs and arrangement for such legal
clearances should be directly stipulated in your contract.)
Finally, another
reason a label might refuse to release an album, is because they deem it
not commercially satisfactory or marketable. Usually only majors will put
such creative control-type clauses in their contracts these days, whereas
indie labels will usually only require the record to be technically
satisfactory (professionally made). A way to attempt to
avert the dreaded “creative control” tug-o-war between a label and
artist is to include a provision in the contract specifically stating that
you, the artist, will retain such control over the artwork and the
recorded product. An indie
lable may comply with this provision, while most major labels won’t.
This is why many artists and bands that are at household name
status have had episodes where there were long delays in releases of their
albums, or where such artists have been told to “go back to the drawing
board” altogether. Because you are at an
indie label, however, it is more likely that financial problems or
mismanagement at the label are the reasons for the delay in distributing
and promoting your album. Look
at the specific terms of the agreement with your attorney, and see what
time limits may have been included, or if there is indeed a guaranteed
release provision. Also keep the lines of communication open, and, if they
are unresponsive, legal “leveraging” and negotiations may be required. Write to Shelly Harris
at: shellyharrislaw@aol.com
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