Although I’m still a quasi-rookie in the realm of artist management, I am fairly certain that nearly all musicians contemplate whether they want (or need) someone outside the box to handle the band’s affairs. Yes…the inevitable discussion as to whether having management or representation is beneficial or detrimental. For obvious reasons, I tend to lean toward the former rather than the latter. That being said, artist management can be, and has been, a critical component in the overall success of a band’s career. More specifically, once a band truly launches and expands beyond the confines of their garage, the complexities, intricacies and the overall pandemonium can quickly become overwhelming. Who better to relinquish that stress that someone who knows not how to conduct themselves on the stage, but rather, how to conduct business behind the scenes?
As a band begins to shed its amateur skin and step into the big leagues…e.g. releasing full-length albums, shopping to labels, touring, merchandising, gaining endorsements, etc., the focus sometimes detracts from the musicianship aspects and instead focuses on the inevitable paper-pushing if the band elects to handle these tasks itself. As most successful bands would agree, at this junction the band needs to seriously consider whether it can afford to employ someone else to handle these tasks…or better yet, whether the band can afford not to. More often than not, local bands attempt to pursue booking agents, managers, A&R representatives and other music industry executives on their own. Some do so with great success. However, the vast majority seem to communicate with inappropriate personnel (assuming they are able to communicate with anyone) as many of these entities and individuals refuse to speak to artists directly or to receive unsolicited materials. Hence, having a Manager can work wonders for bands; especially if the Manager has an established network of connections in the entertainment industry (e.g. labels, booking agents, talent buyers, radio, print, television, merchandising, etc.). However, I feel compelled to note that not all Managers are capable and qualified to assert the title of “Manager”. As such, be sure to conduct a fair amount of research before selecting a Manager. Ensure a potential Manager functions with integrity; that they uphold the highest level of ethics; and most importantly, that they believe in you and can spare the time to take you to the next level. In other words, be weary of Managers that are working with tons of acts—you want a Manager who is loyal, devoted and can truly give you the attention you need and deserve. Don’t get me wrong, some of the greatest Managers of our era have balanced more than one act. Also, check their references…contact their clientele, Google them, and if they are part of a business, check out the local Better Business Bureau to confirm there hasn’t been any complaints (as just a starting point!). And, don’t be afraid to be honest and upfront to a potential Manager about what you hope to gain from the relationship, what your financial
boundaries are, and make sure the potential Manager provides a platform of where he or she wants you to be in one year (or six months) and how he or she intends to take you there.
Finally, as an attorney, I can’t stress this enough….GET THE ARTIST MANAGEMENT AGREEMENT IN WRITING AND HAVE INDEPENDENT COUNSEL REVIEW IT ON YOUR BEHALF BEFORE SIGNING ANYTHING! Many of these Agreements can be elaborate and filled with legal jargon; as you recall from my previous Article on Trademarks; legal jargon tends to use words we are all familiar with, but in the legal world, these words are deemed “terms of art” with very distinct (sometimes different) meanings. As such, it is absolutely imperative that you have a qualified attorney review any such document (and usually that’s not just any attorney, but rather an entertainment or intellectual property attorney).
In closing, here is a general (brief) list of terms that the artist or band should include in any Artist Management Agreement to better establish their protection:
(1) Intellectual Property – This should always be the band’s number one priority. As noted in my previous copyright and trademark articles, the band must ensure that any Agreement it enters into (to the extent possible) allows the band to own the copyrights to its material (e.g. underlying composition, sound recording) and if applicable, any relevant trademarks.
(2) Term/Duration – This term sets forth how long the respective parties want this Agreement to last (e.g. be binding and enforceable)?
(3) Manager’s Responsibilities – This term is of utmost importance to the band….be concise, avoid ambiguities and try to be over-inclusive rather than under-inclusive (yet very
specific in the extent of responsibility/authority the band is granting to the Manager-e.g. the ability to execute contracts on the band’s behalf or the ability of the Manager to permit
and authorize publicity and advertising, etc.) NEVER GIVE A MANAGER UNFETTERED DISCRETION; ALWAYS TRY AND HAVE A SAY IN WHETHER TO PERFORM AT A VENUE, WHETHER TO ACCEPT AN INTERVIEW OR ENDORSEMENT, ETC.
(4) Artist Responsibilities – This term tends to focus on requirements of the Artist in relation to the Manager’s Responsibilities.
(5) Compensation to Manager – Be clear and concise. Generally Managers take a percentage of your profits (The band should demand that such compensation is derived from net profits). This can include profits derived from live performances, merchandising, record/demo sales, endorsements/sponsorships, deals (development, recording, distribution, publishing, etc.). In my experience, Managers have earned between 5-30% depending on the Manager’s reputation, ability, network, and other acts on his or her roster (among other factors).
(6) Accounting and Auditing Rights – If your Manager is acting as the band’s accountant, you must have a right to inspect and audit his or her books upon reasonable notice. This should include ledgers, journals, receipts, checks and all other financial records.
(7) Termination – This term should clearly state the circumstances under which each party can terminate the Agreement. This term is generally separated into multiple terms with one defining “good cause termination” and other defining “material breach termination.” Be sure to have an attorney explain the differences between, and what constitutes, “good cause” vs. “material breach”, as your actions and the consequences thereafter, can drastically vary with these terms.
These seven terms are crucial to the band’s protection when entering into an Artist Management Agreement. That being said, there are several other terms that are generally incorporated which attorneys reference as “boilerplate provisions” used in nearly every type of contract, and other terms that may be incorporated in the Agreement specifically for a particular band or Manager, depending on the circumstance. Remember, that when entering into an Agreement generally there is room for negotiation. As such, your lawyer should not hesitate to request that terms be added, removed, or modified, and to negotiate terms like duration and compensation in your best interests.
This article should give you some general insight into Artist Management. However, it represents only a miniscule fraction of what the industry entails. As such, I reiterate the importance of doing your homework and ensuring that the person who you employ to represent your band is not only capable, but fitting for who you are and what you represent. Granted, there are no guarantees of success, not even with the management moguls. However, the likelihood of success may be greatly heightened by a Manager who is not only reasonable and ethical, but one who believes in you more than even you might believe in yourselves.
By: Michelle M. Wahl, Esq.
Image courtesy of David Castillo Dominici at http://FreeDigitalPhotos.net
Michelle is a Partner at Swanson, Martin & Bell, LLP and is licensed in Illinois and Indiana state and federal courts. With a Masters of Law in Intellectual Property, Michelle is the Vice Chair of the firm’s Entertainment and Media Practice Group and a member of the firm’s Intellectual Property Litigation and Transactional Services Practice Group. Her copyright and trademark practice focuses on intellectual property prosecution and related transactions, including performing trademark availability searches and providing advisory opinions, as well as preparing and filing trademark applications with the United States Patent and Trademark Office, and copyright registrations with the United States Copyright Office. Michelle also assists with the oversight of the firm’s extensive trademark docket and conducts required monitoring and maintenance of clients’ trademark portfolios, as well as provides clients with corporate counseling and innovative corporate solutions to address their respective needs.
Michelle further provides comprehensive representation in the drafting, negotiating and executing of various entertainment-related contracts and licenses, including but not limited to band member agreements, artist management agreements, session player agreements, performance agreements, sound engineer agreements, recording and personal services agreements, publishing agreements and licensing agreements. As a former artist manager, she has implemented many facets of national and regional tours, assembled benefit and charity concerts, communicated with various industry personnel, facilitated radio and internet publicity campaigns, arranged radio, print and internet interviews, and assisted in the development of press kits and websites promoting local talent. Michelle has also guest lectured on entertainment and intellectual property-related topics at The John Marshall Law School, DePaul University College of Law, Chicago-Kent College of Law and Azusa Pacific University (CA), as well as served as a panelist on various other entertainment-related continuing legal education courses. Michelle is an author and editor of the Litigation and Industry Updates Column of the ABA’s Entertainment & Sports Lawyers Journal and has also had numerous articles published by the Chicago Music Guide.
In addition, Michelle serves as Chair of Swanson Martin & Bell, LLP’s Community Service/Pro Bono Committee and proudly volunteers her time as President of the Associate Board and as a pro bono attorney to Lawyers for the Creative Arts, a non-profit organization that provides free legal services to eligible clients in all areas of the arts. She also currently serves as Events Chair for the Chicago Chapter of Women in Music, a non-for-profit organization dedicated to fostering equality in the music industry through the support and advancement of women. She recently served as Chair of the Young Lawyers Division for the Illinois Association of Defense Trial Counsel, where she was recognized as the Rising Star recipient and received a Meritorious Service Award and President’s Commendation.
DISCLAIMER: The information contained in these articles constitutes general information and guidance and shall not be construed as legal advice applicable to or provided for any particular person or entity, and shall not be deemed to create an attorney-client relationship between Ms. Wahl and anyone who elects to read and/or rely, to any extent, on the material provided herein. In that respect, Ms. Wahl hereby expressly and specifically disclaims any such legal relationship, but encourages any person or entity seeking a legal advocate pertaining to the issues addressed and discussed herein to contact her directly for further information. Ms. Wahl may be reached at Swanson, Martin & Bell, LLP (330 N. Wabash, Suite 3300, Chicago, IL 60611 or via telephone at her direct line: (312) 222-8585 or e-mail at: email@example.com.