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.

6 comments

  • Jesús Sanchelima Permalink

    There is nothing to protect performers’ rights in the US.
    You have to go to Congress for that.
    The entity affixing the work in a tangible medium capable of being reproduced is the author for the purposes of our current copyright laws.
    Otherwise, the performer would have an ephemeral work that is. It protectable even under any interstitial common law space that was not preempted by the 1976 statute.

    • Mark Kaufman Permalink

      Agreed as to copyright, but as you’re suggesting, rights of privacy and publicity are the last bulwark of protecting a live performance. Meanwhile, it’s at least customary (if not required because of the copyright belonging to the author of the sound recording) for the entity affixing the work to get the performer’s permission. Certainly, “record companies” have been doing that for years, and any failure to tie up all the loose ends of various performers’ potential rights has led to more and more litigation. Here, my concern is requiring the artist to sign an agreement expressly granting such rights.

  • Philip Pravda Permalink

    What stops an attendee from recording the performance live and positing it on YouTube, Twitter or live stream on Periscope? After that anyone watching it can copy or download it and rebroadcast. Very difficult to police.

    • Mark Kaufman Permalink

      Yes, but that’s on a smaller scale, and different from, actually granting permission not only to rebroadcast, but potentially to monetize, perpetually. Involuntarily being robbed, versus contractually consenting to have your house raided, are substantially different I think.

  • Michael D'Agostino Permalink

    I don’t feel a one off should warrant giving up performing/recording rights unless the compensation was adjusted fairly.

    • Mark Kaufman Permalink

      And Mike, what would fair compensation be? A 4-hour gig, $x hundred per hour per man. Recordings of a great player like you? Priceless…

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