Protecting Your Rights In The Digital Age
By Guy Betar - 12/01/2005 - 02:22 AM EST
As a performer or composer, or both, it is difficult to imagine you have not been touched in some way by the digital world. Everything from digital recording at home and in the studio, to global transport and accessibility of documents and audio files. Advances in computer technology and the accessibility of the net, have opened up a myriad of channels and opportunities for creating and disseminating music. Over the next few months I will look at a variety of issues to consider in protecting your rights, particularly in relation to important agreements, why you need to understand them, and the form they should take. I will also look at the internet and some of the implications it has legally and commercially for composers and performers.
If you are prepared to believe the computer evangelists, we are well and truly in the “electronic age” – The paperless nirvana where everything important in life can be stored on microchips and moved around magically through telecommunications networks. Before you rush out and buy more Microsoft stock, let me share a few sobering thoughts with you.
In my recent article in the Muses News, I stressed why written agreements are so important to performers and composers. Firstly, a written document goes some way (and I stress “some” way) to describe in tangible terms, the common understanding of the parties so they know what they have agreed to do and what they can expect in return. Secondly, if there is a problem or a dispute, the piece of paper with signatures on it is usually strong evidence of what the terms of the deal are.
These two premises are extremely important, not just once an agreement has been signed, but also in discussions and negotiations leading up to concluding an agreement.
Let’s face it, the spoken language is highly vulnerable to misunderstanding and misinterpretation. The written word is by no means immune to these problems, but at least with a written document you have something capable of objective analysis.
If we consider one type of agreement, before you even get to the “big record deal” type of contract, it will illustrate my point.
As a performer you have started to develop a following, or as a composer, one of your songs has been picked up by a recording artist. Suddenly obscurity is falling away and there are signs you just might “make it”. You feel you need someone experienced in the industry to help protect your interests, or you may even be sought out by such a person – enter the manager/agent. The roles of “manager” and “agent” are not the same, though they do have common elements and both roles can be assumed by one person or organization. If the most you do is discuss an arrangement over coffee, and reach a basic agreement through a conversation, and nothing more, then what is the problem? It is a good way to develop rapport, and you only need to know the basics – after all, you are hiring your manager to do just that – manage your affairs. WRONG!
Even between the best of friends, business is business. Who will remember precisely what was said at a casual meeting in a coffee shop or over a good lunch (which hopefully your would-be manager pays for!). It takes a lot of discipline to mentally tick off a list of essential agreement points in your head, even if you have them clearly there in the first place. Would you have thought to make sure the following questions are covered, and most importantly answered and agreed on:
1. Who will actually be managing my affairs – is it the person I am dealing with or will it be someone else from the agency he or she represents, and if so, who?
2. What will they actually do for me? Will they find a record label for me? Will they find gigs for me? Will they find a publisher for my music?
3. Will they sign agreements on my behalf? Do I WANT them to sign agreements on my behalf? If I don’t, what conditions do I need to impose on them?
4. Do I want them to negotiate contracts on my behalf, especially concerning money? Probably I do, but should I at least agree on minimum returns that they can’t go below without getting my prior consent?
5. Do I want them to receive money on my behalf? That is the normal procedure for agents/managers, but what responsibilities and accountability should the agent have in dealing with my money?
6. How often do I get paid and in what manner?
7. What access should I have to the agent’s records to be able to check what he or she is doing with my money and affairs?
8. Speaking of money, how much should an agent receive? Can an agent take part of my earnings even if they aren’t doing anything for me? Do they get a share of everything I do?
9. What areas do they represent me in? The world? My country? My home town?
10. Are they my exclusive agent?
11. How long will I be bound to use them as my agent?
12. If I am unhappy with them, how can I terminate the arrangement, if at all?
13. Should they have any part in the ownership of what I write or create?
14. Are there any of my activities I do not want them to deal with or have anything to do with?
15. Do I want them to have any say or influence over my creative output?
16. Do I want them to have any authority to negotiate merchandising based on my name, my likeness, my creative output? Do I even want to allow merchandising?
This is by no means an exhaustive list of questions that you should ask yourself, and most importantly, reach agreement with your agent on. Even if you covered every one of these topics in your conversation over coffee, would you remember what was discussed and more critically, what was agreed? Clearly the importance of having a written agreement cannot be overstated, nor can the need for you to have at least a rudimentary understanding of your rights and how you want them dealt with.
If you are part of a band or group, there are quite a few more questions again that need to be asked. For example, who owns the band name? How do you, as a group, make decisions and give instructions to your agent? How do you share returns? If some of you are composers, who are the composers and how do you share copyright royalties on the compositions?
The two simple messages behind all the questions I have posed are these – as a musician, performer and/or composer, you need to have some understanding of your rights and the business end of the world you are in. No, you don’t have to have a law degree for that, but you do need to be aware of your rights and how they can be handled. Secondly, any agreement you make must be in writing and it is essential you understand, even at a basic level, what the agreement says. There is a wealth of professional help available, but that cannot replace you having an understanding of your basic rights and what an agreement says about them.
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