Take the Gig, But Lose the Content?

Parties, events, and weddings are the lifeblood of working musicians. It’s money in the hand, as opposed to what Take the Gig, But Lose the Content? by Mark Kaufmanmight come out of royalties down the road. This incentive is what led a client to reach out to me recently; he had a great gig booked, was looking forward to it…and then the contract came.

The event is being hosted by a large and well known corporation, at a third-party venue, and the pay is good enough to warrant calling an attorney. The contract not only requires each performer to waive their rights of publicity/privacy (in their name and likeness, so photos posted on the internet won’t garner a lawsuit), but also provides, in essence, that “you allow us to record your performance, and you grant us an irrevocable worldwide in perpetuity license to use your performance.”

I can appreciate that it’s a corporate party, and the organizers just want to be able to post pictures of the great time everyone had to social media without being sued by the band. But my objection to the contract is that it’s so overreaching:  a taking of rights that is much broader than contemplated by the performer who is merely playing for a few hours.. And what if, hypothetically, the company hiring them is Google, or any other content provider? (And really, isn’t virtually every company a potential content provider?)  In that case, this contract would provide the hiring party with hours of more content, for free, and forever.

Additionally, my client would have no control over what is recorded. So even if the performance is not their best, it could be broadcast or posted on YouTube, in perpetuity. Even if it doesn’t accurately portray the quality of what the band can play, by signing the contract my client would waive the right to do anything about it. All merely for one event.

My client listened to my concerns, but I’m not sure what he’s ultimately going to do. He has to decide between making ends meet and an over-reaching contract that feels substantially unfair to me. I very much appreciate the tension between the reality of needing to get paid for a job and the theoretical abuse of the hiring party demanding not just a live performance, but recorded content.  Taking such gigs may present a Faustian bargain.  I welcome your thoughts.

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn
kaufman@kaufmankahn.com

747 Third Avenue
32nd Floor
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009

Blogs offer an accessible way for readers to learn more about issues that are important to them, but their short format is in no way representative of the entire breadth of knowledge that an attorney possesses. The only way to ascertain your legal rights and responsibilities is to engage an attorney in an official capacity, as a client.

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