[Editors Note: This is a guest blog written by Justin M. Jacobson, Esq. Justin is an entertainment and media attorney for The Jacobson Firm, P.C. in New York City. It’s the second in a two-part series – read Part One here.]
We will now continue our examination of some of the pros and cons of entering into a “multiple rights” agreement as well as look at some other clauses utilized in these agreements that are rarely seen elsewhere within the music industry.
Another common agreement that is part of the “multiple rights” a label acquires is one that covers the artist’s “collateral” or “ancillary” entertainment activities. This clause applies to any stream of income not covered by the other existing agreements between the parties.
Typical language stating this is as follows:
Artist hereby grants Label the right to participate financially in the results and proceeds of the Ancillary Entertainment Activities. “Ancillary Entertainment Activities” refers to Artist’s activities in and throughout the media industry as a performer, singer, musician, writer, composer, author, lyricist, producer, engineer, mixer, DJ, or otherwise in connection with the Artist’s songwriting and music publishing, exploitation of merchandise and fan clubs relating to the Artist, but excluding Recordings exploited by Label pursuant to a Recording Agreement with Artist.
As discussed above, this paragraph entitles the label to a percentage of all entertainment related activities that the label is currently not already entitled to under any existing agreements. Typically, the percentages earned by the label for non-record income ranges from 10% to 25% of gross or net income, depending on the specific agreement and specific source of income. However, under some agreements, the percentage can be as much as 50% of the net income from each and every source of revenue.
One final “right” included in a standard “multiple rights” deal is an artist’s merchandise right. A typical clause granting the label rights to the artist’s merchandise is displayed below.
Merchandise – Artist grants to Label the exclusive rights throughout the universe (“Territory”) to utilize the Artist’s Identification Materials, in connection with the manufacture, advertisement, merchandising, promotion, distribution and sale and/or license of any Merchandise bearing Artist’s name and/or likeness. Artist grants the Label the exclusive right to sell Merchandise to wholesalers and retailers, including internet-based wholesalers and retailers, for resale. Artist grants the Label the exclusive right to sell Merchandise directly to consumers through the Internet, mail order sales, and CD inserts. Artist grants the Label the exclusive right to enter into License Agreements for Merchandise. “Artist’s Identification Materials” include: posters, stickers, patches, lighters, buttons, keychains, novelty items, souvenir tour merchandise, toys, dolls, lunchboxes, t-shirts, jerseys, sweatshirts, hats, and other apparel bearing Artist’s name and/or likeness.
This clause provides the label with the exclusive right to sell the artist’s merchandise to physical and digital retailers and whole-sellers as well as selling the items directly to consumers (“D2C”) through the Internet or “CD” insert offerings. It also grants the label the exclusive right to enter into third-party licensing agreements for the sale of the merchandise. It also lists the various artist branded apparel items subject to the merchandise agreement.
Merchandising income is often calculated in a variety of ways. Sometimes, the label receives a flat percentage, such as 15-25% of any and all merchandise income. In other instances, as shown below, the different items sold by the record label entitle the talent to different percentages.
Royalties – Label shall pay to Artist the following royalties on Net Sales of Merchandise:
1. 22% of Net Retail Receipts for t-shirts;
2. 20% of Net Retail Receipts for hoodies and sweatshirts;
3. 15% of Net Retail Receipts for headwear and other items.
(2) Direct To Consumer Sales (“D2C”)
a. 25% of Net Receipts
a. 60% of Net Licensing Receipts.
As depicted above, the amount the artist is entitled to vary based on the type of items and channels through which they are sold. This difference could be due to the associated production, manufacturing and/or distribution costs associated with each item. In these instances, a musician should try to negotiate the highest percentages they can in order to ensure they receive most of the monies grossed from the sale of their merchandise.
One final clause that provides protection for the artist is the inclusion of a “sell-off” period at the expiration of the merchandise agreement. An example of this type of clause is listed below.
Sell-Off Period – Label shall be entitled for a period of six (6) months after the expiration or termination of the Merchandise Agreement (“Sell-Off Period”) to continue to sell, on a non- exclusive basis, any already existing Merchandise in Label’s possession. Label will not manufacture quantities of the Merchandise in excess of the amount Label reasonably expects to sell during the Sell-Off Period. Label shall pay Artist in accordance with the terms and conditions of this Agreement during the Sell-Off period.
This clause permits the label to sell off any remaining merchandise it has in inventory after the expiration of the agreement. It also limits the amount of new merchandise the label can manufacture. An artist should try to limit the time frame that the label’s “sell-off” period lasts for. In addition, the musician should try to ensure that the label does not sell the merchandise at a substantially reduced rate as to undercut any sales efforts taken by the artist after their exclusive merchandise deal ended.
There are a variety of reasons that an artist may or may not accept a “multiple rights” deal with an entertainment entity. The biggest reason for these extensive arrangements is to create a “partnership” between the label and artist. Since the label is now much more invested in the artist, due to the extensive financial investments (separate advances for each agreement) and all the potential avenues of possible return; the label may see the benefits of having a dedicated staff or representative(s) committed to collect monies generated by the artist, to actively pitch and market the songs to publications and music supervisors for potential placements in movies, television and video games. If the label is not as invested in the artist and does not foresee substantial returns, it may be hard for the label to dedicate their limited resources and time to build such an artist.
In contrast, there are several drawbacks to entering into such extensive agreements. One is that the label typically has extensive control and approval over the artist’s career, including the artist’s “image,” selection of songs, appearances and sponsorships. Another negative aspect is that although the label takes a cut of all a musician earns, most labels have begun paying much smaller advances than in prior years. They have also down-sized personnel, so they do not have sufficient staff to actively and vigorously work on behalf of all its signed artists. In an effort to balance this, an artist should work to acquire some sort of creative control over the label’s use of the artist’s name and likeness as well as who the music can be licensed to.
The music business has undergone a monumental shift caused by the decline in recorded music sales and aided by an increase in music streaming and illegal music downloading. In an effort to alleviate some of the traditional record label’s losses, they crafted new “multiple rights” agreements. These agreements have benefits and drawbacks; but, are here to stay.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted. Some of the clauses have been condensed and/or edited for content purposes, so none of these clauses should be used verbatim nor do they act as any form of legal advice or counseling.