Is it fair that manufactured bands sign terrible contracts?

March 28, 2005 3:25 PM

Boyband/LawFilter: Is it fair for manufactured bands (NSync, American Idol-ers, etc) to have questionable contracts when they sign to a label? (+)

Ok, manufactured bands such as Nsync, backstreet boys, and the American Idol crew always have a tendency of trying to escape from contracts because they are horribly unfair. I've been considering the merits of this, and I'm have recently been arguing that because of the initial bargaining position of the non-stars pre-band (ie: Justin Timberlake could be one of 10,000 kids in NSync, if he said no to the contract, there'd be someone to take his place) combined with the power and creation of someone like Simon Fuller or Lou Pearlman, there is less grounds for these manufactured artists to cry unconscionability than, say, any band who has been created themselves.

That being said, I'm having difficulty having this opinion mesh with the law student in me. I was wondering if anyone had a) any resources, pro or con, on the question of unconscionability in manufactured band contracts (articles, etc); or b) what your opinion is on the subject. I'm looking for both legal and personal opinions...

posted by evadery to media & arts (16 comments total)

Unfortunately, I'm have not been previewing efficiently...Please. Discuss away.
posted by evadery at 3:32 PM on March 28, 2005

Hmm, good question. I found one good article from Time magazine.

Personally, I think that the boy band members have to be willing to give up more. It's all about who's got the power. If you're a dime a dozen performer, then the guy who has the distribution and financial backing is in charge. But if you're an amazing songwriter and performer, like the boys in Wilco for instance, then you can dictate the terms of your contract.

I'm curious to see what else we can turn up on this subject.
posted by capndesign at 3:35 PM on March 28, 2005

The less talent you have, the more willing you will probably be to make (contractual and creative) sacrifices to become famous or successful. You have less to offer and must accept less in return.

It makes me laugh that the very minimum that was required years back to become a musician ("I write my own songs,") is now the supreme benchmark to which most chart artists struggle to aspire. It's like a football player basing his credibility on the fact that he has two legs and can stand unsupported.
posted by fire&wings at 3:45 PM on March 28, 2005

A) the contracts aren't "questionable", they're just fiercely mercenary within the letter of the law, like virtually ALL record label contracts.

B) is it "fair" that four quasi-talented no-names get all the glory while thousands of genuinely creative musicians get nothing for their lifetime of effort?

C) if this kind of thing actually bothers you, and you'd like to learn more about it, read up on the exploitative, unscrupulous and yes, illegal contract shenanigans pulled by ALL the record companies on virtually ALL of their artists, from the 1930's up to right damn now. Seriously.

Your concern for the boy band drones is, IMHO, misplaced at best. There are scads of "legitimate" (no flames, please) artists who get the rawest deal possible simply because THAT'S WHAT RECORD COMPANIES DO.

Brilliant book on this subject, with raw numbers, details of common contractual exploitations, etc. by Moses Avalon.
posted by Aquaman at 4:05 PM on March 28, 2005

If you're on American Idol you're contractually obliged to sign with the record label if you win (and if you don't, there's a non-compete clause, and possibly a first-refusal one too), so in effect they're providing a service for you (making you famous) in return for giving them a large part of the profit. For non-Tv bands

My personal opinion is that framing the debate around manufactured vs not is not a good one, since there are many "manufactured" bands that formed on their own, and many "real" bands that formed from open auditions, and both kinds have an enormous amount of grooming and help from professionals outside the band, at the record company's expense. Similarly both kinds can have similar amounts of creative input, and it requires an equal amount of talent/skill to be Justin Timberlake as to hold a guitar and contribute the odd lyric. Mostly the difference is in presentation and musical style, and pretty arbitrary.

(also it's worth remembering the idea that you have to be a songwriter to be a performer is a post-Beatles glitch and not necessarily the natural order of things)
posted by cillit bang at 4:13 PM on March 28, 2005

It makes me laugh that the very minimum that was required years back to become a musician ("I write my own songs,") is now the supreme benchmark to which most chart artists struggle to aspire.

Pre-196something, most artists did not write their own songs. Not until the Beatles and Bob Dylan came along did it become more common, and eventually the norm, for the singer to also be the songwrited.
posted by skwm at 4:17 PM on March 28, 2005

(Sorry: For non-TV bands... the management play the same role as the TV company, but to a lesser degree)
posted by cillit bang at 4:17 PM on March 28, 2005

Personally, I think the reason so many musicians get these horrible contracts is the lack of a strong union in the industry.

In the movie industry, for example, when casting the role of Harry Potter the studio offered a relatively low-paying multi-film contract, knowing that an unknown actor would still jump at the offer. But after the first film some actors union stepped in and said since the first film was such a hit they would have to start paying him in the millions.

You'll also probably want to check out the often cited Steve Albini article "the problem with music"
posted by bobo123 at 4:22 PM on March 28, 2005

I am aware that pre 1960's most artists did not write their own songs. The Beatles finished the careers of Sandie Shaw, Helen Shapiro, Lulu, Sandy Posey, Cilla Black and a host of Uk female (and male) solo puppet talent. I'm just saying that pre 1984-ish "I write my own songs" was not a boast.
posted by fire&wings at 4:30 PM on March 28, 2005

Basically, I agree with evader & capndesign - manufactured bands get what they deserve.

In general, licensing contracts are much fairer than traditional artist contracts. All of the contracts I have entered into with bands as an indie label owner have been fairly simple 3-to-4 page licensing deals.
posted by omnidrew at 4:38 PM on March 28, 2005

Whether the boy bands get what they deserve or not, there is a reason why contract law is sometimes called "the law of regret." If a contractual agreement was created through undue influence, duress, misrepresentation, or something similar, then there is a legitimate legal issue. Otherwise, the bargaining strengths of the parties are often unimportant. This is ignoring, of course, any moral qualms.

But to echo many others, its more disturbing when talented artists get the shaft. Boy bands are unabashedly commercial, so it doesn't bother me that they suffer or succeed on a commercial basis.
posted by Falconetti at 5:24 PM on March 28, 2005

Also, and more on point, you might want to check out an article in the Spring 2003 volume of the Whittier Law Review entitled "Music Contracts have Musicians Playing in the Key of Unconscionability." As a law student, I assume you have access to Westlaw or Lexis, which is where you can find this article (can't direct link it). The Westlaw cite is: 24 Whittier L. Rev. 739.
posted by Falconetti at 5:41 PM on March 28, 2005

It is inherently unfair for this reason. Manufactured bands have no control over their popularity. Their popularity rests entirely upon the marketing juggernaut of the record companies who created them.

It's just fine that they receive a pitifully small amount of the proceeds from their music. They're just pretty faces to go along with the tune. What's unfair is how they have to put themselves at risk with "advances" and predatory tactics on the side of the record labels, trying to minimize their own risk.

Real talent is an entirely different matter, and far more disgusting. However, that's not your question. In a legal sense, the record companies are getting away with anything they possibly can, they have massive legal departments for this very purpose. In terms of fairness though, they're taking a gamble that the record companies can produce enough hype. If they lose, they're screwed royally. If they win, they could make some decent money and have a chance at serious fame. It's not really a fair game, but people line up around the block to play it anyway, so it's not drying up on its own yet.
posted by Saydur at 6:16 PM on March 28, 2005

"The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There's also a negative side."

Hunter S. Thompson (Courtesy of Jimbob)
posted by MLIS at 6:50 PM on March 28, 2005

"I am aware that pre 1960's most artists did not write their own songs. The Beatles finished the careers of Sandie Shaw, Helen Shapiro, Lulu, Sandy Posey, Cilla Black and a host of Uk female (and male) solo puppet talent. I'm just saying that pre 1984-ish "I write my own songs" was not a boast."

I would disagree, and in fact point out that this devalues good performers and entertainers in favor of songwriters unjustifiably. For some reason, this has traditionally been used against female artists -- just as you did here. Songwriting is just one good talent that contributes to good music. Performing is another. Not everyone can or should be able to do both, but that doesn't make them puppets. This is, though, sort of peripheral to the topic.

As others have mentioned, the Beatles (and Buddy Holly, slightly earlier) were unusual for writing their own songs -- this whole "you have to write songs to be a serious musician!" is an aberration. Certainly classical musicians aren't held to that standard.

"My personal opinion is that framing the debate around manufactured vs not is not a good one, since there are many 'manufactured' bands that formed on their own, and many 'real' bands that formed from open auditions, and both kinds have an enormous amount of grooming and help from professionals outside the band, at the record company's expense. Similarly both kinds can have similar amounts of creative input, and it requires an equal amount of talent/skill to be Justin Timberlake as to hold a guitar and contribute the odd lyric. Mostly the difference is in presentation and musical style, and pretty arbitrary."

Absolutely. Passing through many auditions to be selected for a role in a band or any other performance endeavor isn't generally considered evidence of "lack of talent" -- quite the contrary. I don't really like boy bands myself, but no one can deny there is generally talent there as long as they aren't chosen strictly on looks. The downfall of boy bands is that they don't really have artistic control, so what they do is regimented enough to choke the life out of it. And since they didn't get together based on common musical interests and compatible personalities, they have nothing to hold them together but that external structure. This doesn't mean they aren't talented -- it just means they don't have that inner fire as a group to make them something more than what they are. Sometimes they don't have that fire even as an individual (at least as far as music is concerned), so eventually they go on to be actors or whatever.

Anyway, it is not hard to imagine that a talented and naive young person would allow himself to get into a bad contract situation, because he just wants to be a famous entertainer, and doesn't know enough to know where the dangers are. And when an opportunity seems to be right in front of you, you go for it, believing that everything will work out for you. And then you learn.
posted by litlnemo at 1:00 AM on March 29, 2005

My opinion is that as soon as a musical act gets advertised, it's "manufactured."
posted by ikkyu2 at 7:34 AM on March 29, 2005