{"id":29263,"date":"2015-10-29T01:36:33","date_gmt":"2015-10-29T05:36:33","guid":{"rendered":"http:\/\/www.musicalamerica.com\/mablogs\/?p=29263"},"modified":"2015-10-29T01:36:33","modified_gmt":"2015-10-29T05:36:33","slug":"press-pause-on-that-recording","status":"publish","type":"post","link":"http:\/\/www.musicalamerica.com\/mablogs\/?p=29263","title":{"rendered":"Press “Pause” On That Recording"},"content":{"rendered":"

By Brian Taylor Goldstein, Esq. \u00a0\u00a0<\/span><\/p>\n

Dear Law and Disorder<\/i><\/p>\n

In reviewing an engagement contract for one of my artists, I was surprised to see that the presenter wants the right to record the artist\u2019s performance as a \u201cwork-for-hire\u201d. The Presenter says that this is a standard requirement and also that its reasonable because my artist is protected by language in the contract that says: \u201cIn no event shall Producer have the right to exploit the recordings and\/or an audiovisual program in connection therewith in any other manner other than non-commercial, educational and\/or charitable uses or exhibitions without Artist\u2019s prior written approval and without a separate agreement, negotiated in good faith with respect to any such uses or exploitation thereof.\u201d Is this standard these days? Should I advise the artist to agree to this?<\/i><\/p>\n

Standard for whom? As I have said, and will keep repeating until someone listens, no terms are \u201cstandard\u201d\u2014not recording rights, nor commissions, nor exclusivity restrictions, nor unilateral cancellation rights, nor any other nonsense which parties like to throw at one another under the banner of \u201cstandard.\u201d<\/p>\n

While, ultimately, it\u2019s your artist\u2019s decision, not yours, you should advise your artist not to agree to the language the presenter has proposed. The proposed language reflects a common mistaken belief within the performing arts part of the entertainment industry that so long as you don\u2019t sell a recording, then all other uses are inherently \u201cnon-commercial.\u201d However, particularly in the classical world where a classical recording hasn\u2019t actually generated a profit since the release of \u201cFantasia\u201d, no one really \u201csells\u201d recordings anymore\u2014at least, not for a profit. This means that, except in limited situations, there really are no practical uses or exhibitions for recordings other than \u201cnon-commercial, educational and\/or charitable uses or exhibitions.\u201d This further means that if you were to agree to the proposed terms, the presenter could do just about anything they wanted with your artist\u2019s recording. Their proposed \u201cprotection\u201d is meaningless.<\/p>\n

Just because a recording isn\u2019t sold, is unprofitable, is used for education, or is used by a non-profit organization does not make it inherently \u201cnon-commercial\u201d or valueless. A recording still has value. Using a recording to promote the presenter or further a presenter\u2019s mission provides value to the presenter which the presenter has not paid for. Otherwise, why does the presenter want it in the first place? Presenters need to stop believing that just because they engage an artist and pay for the artist\u2019s performance then that also includes the right to record the artist\u2019s performance and \u201cown\u201d the recording. In the real world, you only get what you pay for. When you buy a car, does it come with a chauffeur? It\u2019s not merely presumptuous, but it completely demeans the value of the artist\u2019s work\u2014which, quite frankly, happens all too often these days by the same parties who should know better.<\/p>\n

In addition, an artist always needs to be able to control how the artist is seen and heard. A poor recording of a brilliant performance could have devastating impact on an artist\u2014particular a young or developing artist. Even a good recording, if released in its entirety, could limit an artist\u2019s ability to release a recording of the same work in the future if it has already been made available for free.<\/p>\n

While I generally have no objection to a recording being made, it\u2019s the uses of and rights to the recording that need to clearly defined\u2014and limited. First and foremost, unless the engagement fee includes an additional fee for \u201cownership\u201d of the recording or the opportunity to perform with a particularly presenter is of such magnitude as to provide additional value to the artist, then the whole concept of a \u201cwork for hire\u201d should be off the table. Instead, if anything, the presenter should only be able to use limited excerpts of the recording for limited purposes. Just as importantly, the artist should be always able to approve any recording to make sure that the artist is pleased both with her performance as well as with the quality of the recording itself. Third, whatever rights are granted to the presenter in an artist\u2019s recording, should be granted to the artist as well. If the presenter gets the right to make and use a recording, then the artist should get a copy for the artist\u2019s own promotional and marketing purposes as well. Any restrictions or approvals should be mutual.<\/p>\n

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For additional information and resources on this and other\"GG_logo_for-facebook\"<\/a> legal, project management, and business issues for the performing arts, visit ggartslaw.com<\/a><\/p>\n

To ask your own question, write to lawanddisorder@musicalamerica.com<\/a><\/p>\n

All questions on any topic related to legal, management, and business issues will be welcome.\u00a0However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and\/or posthumously.<\/p>\n

__________________________________________________________________<\/p>\n

THE OFFICIAL DISCLAIMER:<\/b><\/p>\n

THIS IS NOT LEGAL ADVICE!<\/b><\/p>\n

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!<\/p>\n

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