By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A successful duo I represent has recorded a CD which is being released by a record company. Although the artist made attempts to obtain a contract, because of time restraints, according to the record company, it was only possible to give a contract AFTER the recording was made. The terms include exclusivity universally for several-year options, and although the company paid for the recording and manufacture of the cd, these costs will come out of the royalties. The company controls the cd universally with power of attorney from the artists. To obtain copies, the artists buy the cd at a reduced price. The company insists these are normal terms which are standard practice and always given after the recording is made. This is news to me. Can this be true?
In my ideal world, among other things on my wish list, every artist, manager, agent, presenter, producer, arts lawyer, and arts administrator would have a sign above their desks stating: “Nothing is Standard!” While it is true that there are many terms and practices which are more common than others and while it is also true that certain financial arrangements and commitments will necessarily lend themselves to certain expectations in return, everything is negotiable. This does not, of course, mean that you will get everything you want. Rather, depending on the negotiating strengths of the parties, everyone is free to ask and propose whatever they want. Think outside the box. Get creative.
However, while creative proposals may be limitless, the time to propose them is not. The time to negotiate is before services are rendered, significant time is spent, or money changes hands. Thus, the real issue at the heart of your question is your comment that “because of time restraints, according to the record company, it was only possible to give a contract after the recording was made.” In my experience, I have yet to encounter a situation that was so dire and immediate that at least some basic understandings of key terms could not be mutually agreed upon ahead of time.
Sadly, it’s not uncommon in the arts and entertainment world for the artistic aspects of a project to proceed on a completely separate track and pace from the administrative and business details. New works are created or composed before the commission agreements are in place. Recordings are made before the recording contracts are signed. Engagements are scheduled and sometimes even performed with no engagement agreements. I’ve even known artists to collaborate with one another and then try, almost always unsuccessfully, to negotiate a collaboration agreement after the work has been optioned for production.
Of course, some of this is understandable. Contractual terms can be confusing, especially when the parties are unfamiliar with business practices and terminology. Also, it can take such considerable effort just to coordinate the funding, schedules, and parties that no time is left for negotiating contractual terms. Also, its not uncommon for different individuals and departments within a large organization or institution to address artistic planning and scheduling separate and apart from contractual and business planning without communicating or coordinating with one another. But, whatever the reason, this phenomenon is unfortunate because it makes it much harder to negotiate favorable terms or, at the very least, to manage expectations, avoid potential conflicts, and make informed decisions.
The biggest—and, often, only—power an artist has in a negotiation is the power of “no”—that is, the power to say: “I’d rather pause for a moment, even it means losing the deal or opportunity, than enter blindly into a relationship where I may have no control over my creative services.” Of course, it can be equally bad for record companies, producers, and presenters who can find themselves investing both time and money without getting the rights or return they anticipated. While saying “no” or “stop” can sometimes cause a lost opportunity, the alternative is a bad or unfavorable deal that, ultimately, could prove worse.
Without a doubt, legitimate practicalities, including artist availability and opportunity costs, can often make it difficult for a formal contract to be drafted up in advance of every occasion. However, there is rarely a legitimate reason why parties cannot at least mutually agree upon basic terms, with a more formal agreement to follow. Remember, a contract is a written memorialization of an existing agreement. Until an agreement exists, there is nothing to memorialize. Without terms agreed upon ahead of time, there is no contract to draft.
In any situation, if time is of the essence, never wait for the other party to provide a contract or propose terms. You may need to make the first move. In your situation, if the record company refused to provide a contract, then your artists could have proposed their own terms or set out their own requirements for proceeding with the recording. If your artists are truly as “successful” as you indicate then chances are the record company would have agreed to an outline of reasonable terms. When you say that your artists “made attempts”, that should have included writing:
“Dear Record Company, while we are very excited about the prospect of working together, unless we can arrive at a mutual agreement of some basic terms, we will be unable to proceed with the recording as scheduled. Thus, we are proposing the following…..”
Contractual terms do not, and should not be, a confusing quagmire of legalese. Write your proposals in clear, understandable language. The key is to be detailed, not convoluted. As even the most experienced artist managers can find themselves daunted by the prospect of proposing terms for recording contracts and other multi-media deals and transactions, you would be wise to bring in some specialized help.
Ultimately, in your situation, if the record company paid for the recording without negotiating the contract, then they took the risk that no agreement would be reached and that your artists could simply refuse to permit the recordings to be released. That would leave the recording company with a worthless product. Of course, your artists wouldn’t own recordings they didn’t pay for, so they would have nothing to show for their time. Everyone loses. Hopefully, the potential of mutual self-destruction will force the parties into coming up with the reasonable compromise that should have been agreed to ahead of time.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, 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.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
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!
A Stirring Evening (and Music)
Wednesday, April 24th, 2013By ANDREW POWELL
Published: April 24, 2013
MUNICH — Members of the Bavarian Radio Symphony Orchestra venture six times a year to Lake Starnberg, some 20 miles southwest of here, to play chamber music at the Evangelische Akademie Tutzing, or EAT, as its website favicon reads. A mid-season program (Feb. 24) paired quintets by Mozart and Schumann in the venue’s airy music room, drawing skilled performances. But extra-musical ghosts disturbed this particular offering: concert tickets include a guided tour of EAT — once a lone lakeshore chapel, later a castle, palace and U.S. Army HQ — and our evening began with docent tales of, among other matter, a 1945 American troop obliteration of the palace library, Dwight Eisenhower’s name being dropped for good measure.
What? The troops fight their way into Bavaria, set up at Tutzing Palace to administer a new basis for democracy, and are remembered for trashing books? So much for perspective. Then again, Tutzing can seem stuck in the 1920s and 30s: Adolf Hitler’s beer-hall putsch buddy Erich Ludendorff is grandly buried there and the former fishing village memorializes “Hitler’s pianist” Elly Ney — Carnegie Hall attraction in 1921, ardent Nazi by 1933 — on its much-visited Brahms Promenade. Physically the town has changed little over the decades.
Our thoughts stirred by the guide’s earful, we crossed the yard for musical respite. Mozart’s G-Minor String Quintet, K516, resounded in handsome proportion and balance. Antonio Spiller, first violin, stressed the cheery second theme of the opening Allegro emphatically enough to prepare for Mozart’s abrupt turn in the closing movement. Leopold Lercher, Andreas Marschik and Christa Jardine partnered him attentively throughout, even if they couldn’t quite match his poise and confidence. Cellist Helmut Veihelmann intoned with care, but the ear craved more of a grounding, more cello volume. In the Schumann Piano Quintet, after a coffee break and snowy stroll by the lake (pictured), unrestrained collegial exchanges and pianist Silvia Natiello-Spiller’s buoyant passagework found color aplenty, even kitschy color. Marschik took the viola part.
EAT’s buildings date to medieval times. The small chapel got wrapped in a castle in the 16th century, its watery and Alpine views appropriated. Sundry owners and architects later morphed the premises into a modest post-Baroque palace. In 1947 the Lutheran Church assumed control, followed by ownership two years later in a 350,000-Mark deal. Tranquil seminars and coffee-table conferences now prevail along with occasional music events, such as those of the BRSO ensembles.
Given the pre-concert assertions and the irksome notion of book destruction, this U.S. listener decided on a little post-concert research. Quick findings: Eisenhower did spend time in Tutzing in the 1940s, returning there repeatedly for off-duty art lessons in 1951, but where he stayed isn’t clear; and the palace library did vanish during the 1939–45 war, but whether the honors fell to the U.S. Army isn’t clear at all. And regardless of what happened to the books, the American presence achieved positive results in Tutzing starting immediately.
Indeed, one life-saving story would well serve EAT’s docent and his Bayerischer Rundfunk (BR) pre-concert narrative. On the night of April 29, 1945, a train of prisoners — Russians, Romanians, Hungarians and Poles — pulled into Tutzing station. 800 in number and mostly men, they had been dispatched from Bavaria’s newly wound-down Mühldorf concentration camp, east of Munich, to the Tyrol, and to slaughter at the hands of waiting SS personnel. But a providential delay occurred — Tutzing is 90 minutes from the Tyrol — attributed variously to a faulty locomotive, a righteous local flagman, and even a prescient German commanding officer.
The next morning, on the same day that Hitler turned the lights out and Munich fell to the Allies, the XX Corps, part of George Patton’s U.S. Third Army, reached the town. Little fighting ensued because Tutzing was a Red Cross safe zone. The troops soon located the Benedictine Hospital crammed with wounded German soldiers, and the makeshift care beds arrayed in the high school and other buildings. Then they found the train, confronting directly the horror of camp survivors and at first wrongly concluding that Tutzing itself had been a camp location. The prisoners were told of their freedom, and the weakest removed from the train for treatment.
Decisive action followed. The American command seized a number of Tutzing homes for emergency use, instructing the locals to double up with their neighbors. The less seriously wounded of the German soldiers now lost their hospital beds to Mühldorf survivors in critical condition, the majority of them Jewish Hungarians. Although educated by the Reich to resist the enemy to the bitter end, many Tutzingers waved white flags for the U.S. troops, engendering whistles of censure from their more determined neighbors.
On May 1 the troops located a Nazi school campus on high ground in the next village, Feldafing, and rapidly commandeered it to serve as a new home and care facility for the former prisoners, now officially “displaced persons.” (Novelist and social critic Thomas Mann had owned a condo retreat in one of the campus buildings. He lived in Munich for 40 years before fleeing the country upon Hitler’s ascendancy in 1933.) On the morning of May 2, a working locomotive having been procured, the Todeszug crept back three miles the way it had come and transferred the survivors, giving them real beds and room to roam. Months later, after it became clear across Germany that ethnic groups among former prisoners did not always get along with each other, each displaced-person facility would become designated for a specific group, Feldafing for Jewish Hungarian survivors. With a population that eventually climbed above 4,000, the site would gain a reputation as “a place … to find missing people.”
The war raged for another five days before tacit German surrender May 7 at Reims. American troops requisitioned Tutzing Palace on June 7, setting up Army of Occupation HQ there three days later. This remained operative until the end of 1945, a pivotal command center at the very start of the 10-year Allied Occupation of Germany. In context, the books seem inconsequential.
Photo © Evangelische Akademie Tutzing
Related posts:
Brahms Days in Tutzing
Tutzing Returns to Brahms
BRSO Adopts Speedier Website
Tonhalle Lights Up the Beyond
Petrenko Hosts Petrenko
Tags:Andreas Marschik, Antonio Spiller, Bavarian Radio Symphony Orchestra, Bayerischer Rundfunk, BR, Christa Jardine, Commentary, Dwight Eisenhower, Elly Ney, Erich Ludendorff, Evangelische Akademie, Feldafing, Helmut Veihelmann, Lake Starnberg, Leopold Lercher, Lutheran Church, Nazi Germany, Review, Schumann, Silvia Natiello-Spiller, Symphonie-Orchester des Bayerischen Rundfunks, Thomas Mann, Tutzing, Wolfgang Amadeus Mozart
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