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FROM THE DESK OF... SHELLY HARRIS |
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by: Shelly Harris / Entertainment Attorney
CONTRACTS: When Artist Is Not Happy.. Greetings!
Below is another of a series of answers to questions concerning
music law that have been emailed to me.
However, before I get
to this month’s Q & A, let me remind those of you who are musicians
producing roots-related, independent type “music of the heart” ––
or those of you who are fans of such music, as I am –– that the best
conference and showcase in the country for what has lately been labeled “Americana” music takes place (for the fourth year in a row)
this September 18-20 in Nashville, TN.
For more information,
I highly recommend you check out: www.americanamusic.com
And
now for this month’s legal issue: QUESTION:
I’ve
got a contract with a label, but the problem is that it’s been two years
and I have not received a dime... He hasn’t gotten me there like he said
he would, and he hasn’t put any product out, and he is not returning my
calls... I have other people interested... in using my services. What are my rights, and what do I do?
ANSWER: First
of all, it depends on what kind of contract you signed, and how specific
the contract was about your mutual obligations.
Most record contracts,
whether of the purely distributional type, or artist development or
production type, or all of the above, will stipulate a specific time
period that it is to be binding or renewed by one of the parties.
In fact, any record contract that doesn’t include a specific time
frame or potential time frame, is a very poorly drafted one.
Though it might seem
like tedious, aggravating, and unnecessary “legalese,” the more
specific the terms of any contract, the less chance there is for any
misunderstanding of its terms by either party, and thus there is less
potential litigation.
But, for
discussion’s sake, lets assume you had a two-year exclusive production
and distribution contract, in which the label has promised to produce,
promote, and distribute your music within the specified time-frame, and
also to provide you with certain royalties, in exchange for the label’s
retention of certain exclusive enumerated rights (including potential
part-ownership of the songs or publishing rights) and royalties from the
music you deliver to it within the period of the contract.
If you don’t deliver
music of a defined quantity and quality within the time frame to the
label, or, conversely, if the label is in receipt of at least rough
recordings of your music and chooses to do nothing with it, it is possible
that one or both parties can be in breach of the terms of the contract,
and legal action, beginning with letters addressing the breach, would
commence between the parties.
Please note that
unanswered phone calls (such as those you are referring to) usually
suddenly get answered when attorneys get involved, because the mere threat
of legal action can be enough for either party to take valid complaints
seriously. (However, a
well-drafted contract, which should have been reviewed and amended by
attorneys for both sides in the first place, especially if you personally
are not fully aware of the legal consequences, may drastically reduce the
legal letter writing and wrangling later on.)
If the label has
provided you with any “advance” payment, but has shelved the music you
have delivered to them, or otherwise failed to promote, advance, and
distribute your work in a timely and satisfactory fashion per the terms of
the contract, you may also want to attempt to negotiate with them for an
early release from the contract (in exchange for sums advanced, etc.)
and/or for having your rights to your work, including any master tapes,
returned to you exclusively.
The latter would
permit you to shop your existing work to a more lucrative, enthusiastic,
or supportive label without having to pay the current label percentages of
future royalties, or have it continue to “control” your work
(originally produced under the contract) in any way.
As in all cases of
this type, the specific language of the contract you entered into, plus
any additional verbal agreements between you and the label, is crucial in
giving individualized, adequate, and accurate legal advice; therefore, if
you lack sufficient legal knowledge to handle the situation on your own,
you must, unfortunately (!), retain an attorney of your choice to analyze
your specific situation and advise you with the best plan of action.
Write to Shelly Harris at: shellyharrislaw@aol.com
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