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The Indie Band Vault will begin posting brief articles and legal analysis of issues facing today’s quickly changing music industry. We have retained the services of well known Boston, MA. entertainment lawyer, Michael DeYoung. Be aware that the information in attorney DeYoung’s advice column (The Music Law Connection) is general in nature, and not designed to address the legal issues of any specific individual. If you are in need of such services, you are advised to contact a licensed attorney directly. Attorney DeYoung does accept certain clients on a limited basis. Information re: Attorney DeYoung’s fees and services, etc. may be obtained by writing to him at The Music Law Connection.

 

(Music Law Connection 7/19/04 - #2)

Exclusive & Non Exclusive Contracts

This month’s topic is exclusive and non-exclusive contracts. If you are unsure of what a “contract” is, please refer to the 5/24/04 - #1 article “Contract & Negotiation: What’s the deal?”

Among the many clauses in a contract may be one labeled “Exclusive” or “Non- exclusive.” Most record contracts will have an “Exclusivity” clause. This means that during the term of the contract between you and another party, a record company for instance, you cannot make records for anyone else or provide similar services elsewhere. You are contractually tied to the party you are dealing with for a certain period of time. One piece of fallout from such a provision is called a “Re-recording Restriction.” What this means is that in addition to not being able to work with any other parties during your contract period, you will also not be allowed to re-record any song you recorded during the term of the deal for a certain period of time after such deal terminates! This could be for a period of five years or more from the end of your original term. An exclusivity clause is something to be taken seriously, kind of like being married. If you violate this clause, it will likely result in a “breach of contract,” in which case you may find yourself in court and subject to a law suit.

How to avoid this situation? It comes down to “clout.” When you can boast of a successful track record, if you can help or hurt some poor record company, or whomever you’re negotiating with, you may have clout. An excellent and easily readable book on the negotiation process is called “Start with No,” by Jim Camp (http://www.amazon.com/). If you are a “newbie,” i.e. an unknown with no track record, you most assuredly will not have clout. The more clout you have, the more negotiating power you have. You may be able to demand that certain songs will not be subject to the exclusivity clause, or shorten the exclusivity term period, or make any number of other contract modifications that benefit you. However, if you have no clout you have three choices: take the deal as is, look for a better one elsewhere, or wait and try and build some clout.

A “Non- exclusive” contract, or “deal,” means that you are free to work with others in whatever manner you please. This is obviously the best arrangement for you – but you’ll need that clout!

CHECK OUT NEXT MONTHS ARTICLE “RECORD COMPANY ADVANCES & RECOUPMENT: A COOL DEAL - NOT!”

Semper Paratus!

M.J.DeYoung, Esq.

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The above does not constitute specific legal advice, and is provided only as general information in a public service capacity. For questions involving specific legal issues, please consult an attorney directly.
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