Sunday, December 11, 2011

Music Business/Law Tips - "Breaking A Record Contract" (Part 1)

A musical artist, under certain circumstances, can break
an existing recording agreement.

For a new musical artist, securing a recording agreement with a record or production company is the golden ticket. Often, however, the gilt wears thin due to a panoply of circumstances, and the artist will seek freedom from the agreement. Typically, an unknown artist has limited negotiating power, and a first record deal is usually one-sided in favor of the label. Later, after a hit record, the artist might feel that the agreement is adverse in light of the artist's newfound notoriety. In addition, the artist might believe that another record company would be better suited to further the artist's career, or, more simply, pay the artist a greater amount of money. This situation has caused many an artist to seek (or threaten) some sort of legal recourse against the record company as a means to leave the contract, or else to force a renegotiation of the agreement. Over the years, various tactics have been used by artists as a way of cancelling a record contract.

Recently, a novel and highly publicized approach has been taken by a small group of best selling recording artists in their attempt to leave an exclusive contract situation. They have filed for bankruptcy. The Federal Bankruptcy Code states that existing contracts may be rejected if they impair a debtor's ability to get back on his feet or recover financially. Bankruptcy law has thus armed an artist seeking to break or renegotiate a contract with a powerful weapon.

In January 1998, best-selling vocalist Toni Braxton filed for Chapter 7 bankruptcy in the U.S. Bankruptcy Court in Los Angeles. Although her bankruptcy petition ostensibly was filed on the grounds that her liabilities exceeded her assets, music industry pundits believe that the core reason she filed was so the bankruptcy court would void her existing recording agreement with her record label LaFace.

Braxton's 1993 debut album and her 1996 follow-up have sold an estimated 15 million units worldwide. This enormous success begs the question: How can an artist who has sold approximately 15 million albums go bankrupt? According to her label, following the success of the 1996 release, Braxton demanded more money and said that she would no longer record for the label if it did not meet her demands. She made this demand even though she contractually owed the label more albums. The label did not acquiesce and Braxton apparently implemented the bankruptcy action in an attempt to extricate herself from what she viewed as an inequitable contract.

Braxton is not the first successful recording artist to file for bankruptcy while engaged in a contract dispute. In 1993, the members of the act Run-D.M.C. filed for bankruptcy and emerged from the proceeding with a new contract with Profile Records. Likewise, in 1995, the trio TLC filed for Chapter 11 protection in Atlanta and sought to have its contract with its label LaFace abrogated by the court. In 1996, the group settled out of court with LaFace by securing a new contract.

Such a strategic move is risky because there is no guarantee that the bankruptcy court will reject the contract in question. In 1986, actress Tia Carrere, who was seeking to improve her contract with ABC-TV, filed a bankruptcy petition in the U.S. Bankruptcy Court in Los Angeles. The judge dismissed the petition, saying she did not file in good faith, but rather for the primary purpose of rejecting a personal services contract. This ruling was cited by I.R.S. Records in the label's successful bid to have a Chapter 7 petition filed by the members of its then exclusive recording act Concrete Blonde dismissed. However, the gamble paid off for Braxton who signed a new contract with LaFace in November 1998.

The serious issues raised by the Braxton scenario may one day result in new statutory law. In 1999 there was a bankruptcy bill pending before the House Judiciary Committee which would prevent existing recording contracts from being made void within bankruptcy proceedings. The Recording Industry Association of America (RIAA) sought this special interest legislative relief for what its officials have said is a growing problem of artists and artists' representatives either threatening bankruptcy or filing bankruptcy to get out of their contracts. Should this or a similar bill one day pass, it would be the death knell for the use of bankruptcy as a technique for breaking contracts.

[Note: more recently Braxton used the bankruptcy tactic again against her most recent label/to avoid contractual obligations, and although I have not researched it I understand she was successful.]

[part 2 next time]

Ben McLane Esq (with Venice Wong Esq)

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