INTRODUCTION
In light of recent developments and the growing momentum in this booming sector of our Nations economy, this article seeks to highlight several key areas of an artists career in relation to the law and various other possibilities which all stakeholders and key players are invited to embrace in order to raise the standards and move the industry to even greater heights, suffice to say “the future looks bright.”
SETTING THE CONTEXT
The opening verse of the Holy Scriptures provides as follows:
Genesis 1:1 – In the beginning God created the heavens and the earth. And the earth was waste and void; and darkness was upon the face of the deep; and the Spirit of God moved upon the face of the waters. And God said, Let there be light: and there was light.
Proponents of the Big Bang theory as developed by Alexander Friedmann and Georges Lemaitre would have us believe that the universe originated billions of years ago in an explosion from a single point of nearly infinite energy density.
What is readily apparent in both scenarios is the role played by “Sound” in the creation of the beauty that we refer to as our Universe. The greatest artist of all,while exercising His creative powers manipulated sound on the very first day to create His first-ever ‘recorded’ masterpiece and that is exactly what music is: vocal or instrumental sounds combined or manipulated in such a way as to produce beauty of form, harmony, and expression of emotion.
Moving swiftly to present times, the world has now caught up to American Poet Henry Wadsworth Longfellow’s description of Music as “the universal language of mankind.” Its sheer power of influence, social and economic impact cannot be denied. Through the proper utilization of music in its purest form, one is made aware of the various practices, norms and nature of a people i.e their fashion, cuisine, cinema and sport they enjoy via the means of music videos. Basically, music has the capacity to tell the story of a people in a way that cannot be expressed, duplicated and/or conveyed by any other art form. No wonder the late Abami Eda alluded to the fact that “ Music is our Weapon” and indeed it is. With its ability to tell a peoples’ story/history, its effectiveness as a tool for social engineering should never be ignored. The Question therefore is: How do we ensure that we fully seize and utilize the immense benefits of this art form with its immense potential for youth and economic empowerment?
WHY BOTHER?
I remember my days spent abroad in search of the proverbial golden fleece. I also remember my profound enthusiasm for creating music which complimented my studies. Back then, what we created derived its influences chiefly from African-American Music i.e Rap and Hip-Hop to be precise, we studied rap artists like those signed under the Rocafella Umbrella, Tupac Shakur, the Notorious BIG and Snoop Dog (as he then was) to mention but a few. We moved back to Nigeria, at least I did in 2005, with the aim of creating an impact on the local music scene… or so we thought! At that time artists such as Style-plus were controlling the airwaves,P-Square were still rocking their du-rags and bandanas, and the infamous Mo-Hits Dynasty were doing their thing. These were the artists that were running the scene at that time. They are the pioneers of the new “afro-beat” sound; a label which we throw around knowing fully well that what we do today is in no way similar to the work of the originator of that sound. Personally, I knew the market was not yet ready for the dilution of our music with any foreign influences. We had created something new, something we could call our own and we needed time to bask in the ambience of our new found joy and to be perfectly honest, I fell in love with it too.
I speak for myself when I say apart from the wrong timing of what we were trying to do with our music, there was no music industry at that time. What we called the music industry back then was more akin to a clip from any western movie reminiscent of images of cowboys in the wild west. Anyone and everyone got in the game … it was a free for all! Fast-forward ten years later, a whole lot has changed. As at 2015, PriceWaterCooper House reported that our music industry’s revenue from music sales alone was $56 million and is forecast to grow to $88 million in 2019. Earlier Wiz-Kid – one of our highly talented exports reached the top of the U.S singles chart in a collaboration with Canadian rapper Drake and Burna Boy is presently selling out shows at international venues, music festivals and most recently the UEFA champions League Final. Additionally, in a landmark move in 2015, the Hon. Minister of Information and Culture Alhaji Lai Mohammed made a most welcomed announcement in which he delivered the Federal Governments’ decision to grant ‘Pioneer’ status to the creative industry, aimed at transforming the industry, the creative economy and thereby creating jobs in the process.
It is a no brainer that with this recent development the Federal Government has made things a lot easier for players in the industry and the onus is now on us to take the industry to even greater heights.
THE NEED FOR A VIABLE STRUCTURE
The question now becomes, do we truly seek genuine growth or are we truly happy with the state of affairs? Are we happy with the fact that most of our big named artists are signed to “foreign” Major Record Labels in order to ensure their growth whilst having to make massive tradeoffs and ending up indebted to these companies? The truth is that it would not bother us if we continue to see nothing wrong in the capital flight that arises in such cases and also the resultant brain drain when our best talents make the decision to pitch their tent abroad.
Rather than go on a rampage about the many shortcomings inherent in our industry I shall proceed to provide information that I trust will be both enlightening and empowering if you ever do come across one of these deals. Hopefully, it shall also serve to highlight areas where we may choose to improve our own industry.
Music Law: Recording, Management, Rights and Performance Contracts
Inorder to have a successful career in the music business, an artist is required to be savvy about music contracts. Hopefully, this article would provide you with some clarity and also help you avoid some common blunders. It is always advisable to engage the services of a solicitor, however an understanding of music contract terminology and principles is highly necessary. For the purposes of this article we shall focus on negotiable agreements i.e. agreements where terms can be changed, some of them are,
- Record Contracts
- Management Contracts and,
- Performance Contracts
- Record Contracts: Advances and Royalties
A record contract permits a record label to sell, license & distribute an artists recordings. In return for the grant of these rights, the artists’ music is promoted and the artist gets paid a percentage of the sales revenue. For many musicians a record contract is a symbol of success, however in all the excitement, artists fail to recognize how much risk is involved. In most cases the artist endsup relinquishing rights to important recordings and receiving little in return. Record companies; due to their superior bargaining power usually have much less at risk. A case in point would be the many instances where an artist remains indebted to a record company even while the latter profits from the same recording. Often times due to the excitement caused when an artist is presented with a record contract they fail to have those agreements reviewed by a solicitor. An artist may even consider if its even worth getting his/her solicitorto review the record contract. An artist who is serious about his/her career should never blindly sign any document, to do so would be an affrontto the music and may tie up the musicians finest recordings for a very long time.
Additionally artists should also be aware that many labels eager for an act would consider making reasonable changes to their agreement, particularly if there is a compromise of some sort e.g. a label may agree to raise the royalty rate when a certain sales quota is reached. How do you approach a record contract? Hopefully you can afford the assistance of a lawyer. A lawyer’s advice can be very helpful when making an independent record deal and is essential for the 50 plus page agreement furnished by Major Labels (a contract with a label owned or distributed by Universal Music Group, Sony Music Entertainment or Warner Music Group). Even if solicitors’ services are retained it is in an artists best interest to read and comprehend the key provisions of a record agreement. Therefore, a musician should expect to spend some time identifying the key provisions that he/she may want to discuss.
2.Management Contracts
Management Contracts are agreements where a manager agrees to perform certain services in return for a percentage of an artist’s income. The managers tasks are clearly defined, his remuneration and duration of service are also well spelled out. An artist when entering such an agreement should keep the following in mind:
- Exclusivity: the management agreement is exclusive in nature i.e the artist is prohibited from hiring two managers at the same time. A well known exception to this rule is where the artist requires a manager in a certain field where the manager lacks the requisite expertise or experience such as acting or writing. Although the agreement prohibits the artist from hiring multiple managers, the agreement usually allows the manager to manage several other artists. An artist should approach this cautiously as it could lead to a conflict of interest such as where a manager uses one of his artists as leverage to get a better deal for another.
- Key Person Provision: an artist should also be aware that when signing an agreement with a management company, the agreement may empower the latter to elect any of its team members as your manager. To avoid this, an artist who wants to preserve his/her relationship with a certain manager should request a “key person” provision. This “key person” clause in the management agreement empowers the artist to terminate the management agreement if the key person leaves the company or is not involved in the artists day to day activities.
- Production/Music Publishing: Some management agreements also include production and/or music publishing clauses. Artists are advised to tread with extreme caution in such a scenario, as a high level of trust is required in such a situation. The artist in such a scenario is putting all his eggs in one basket by hiring a manager, producer and a music publisher in one shot. A solicitors advise in this situation is highly recommended.
All things considered, an artist should have done some extensive research before signing with a manager. The artist should have an idea of the manager’s professional reputation, connections and attitude before signing. To alleviate any areas of doubt, concern or worry in your choice of a manager, some managers agree to trial periods before committing to a longer term.
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Performance Agreements
In a situation where an artist has been booked for a performance, it is certainly not uncommon for the artist or the venue to insist on a performance agreement. Such an agreement should provide for the date, time and venue of the performance, the number of sets and their length, payment terms, and appropriate time for sound check and finally the size of the artists guest list. If the artist or the venue has more detailed requirements not provided for in the agreement such as security, hospitality (food, drink, dressing rooms etc.) and liability issues, those are typically provided for in a separate agreement known as a rider agreement that is attached to the basic agreement. The artists’ fee can be provided for under this agreement in various ways such as a percentage of ticket sales, a guaranteed fee, a guaranteed fee or percentage of ticket sales(whichever is higher) or a guaranteed fee plus a percentage of the revenue above the guaranteed fee. In most cases a part of the fee is paid ahead of time in which case the scheduling and amount of payment should be included in the agreement and in the event that the agreed amount is not paid, the artist may have a right to terminate the agreement.
Additionally, this agreement also sets out how merchandise sales will be split between the venue and the artist. In most cases, the venue not the artist manages merchandise sales. The artist delivers the merchandise, the venue sign receives and signs a receipt indicating the count and at the end of the night, the artist invoices the remaining merchandise and is paid for the number of items sold or missing.
The aforementioned are only a few snippets that a serious artist will encounter during his/her career and the list is by no means extensive or exhaustive. A serious artist is required to conduct more indepth research before entering any agreement and the numerous others that are utilized in the music industry, and whenever in doubt, always consult your solicitor!
Prepared by Oluwarotimi Victor Rhodes-Vivour Esq.
Oluwarotimi Victor Rhodes VivourEsq. is the Principal Partner Akande, Rhodes and Vivour (Barristers, Solicitors and Legal Consultants). He specialises in Entertainment Law, Travel and Tourism and Real Estate and Infrastructure. He can be reached at [email protected].
