My wife is an attorney practicing, among other things, entertainment law and intellectual property law for a large regional firm. I let her read this thread. She believes that most of the judges / arbitrations she has faced would find that the language in this clause obligates the musicians to provide the proper licenseing.
Noted. Respectfully disagree. Is your wife a litigator?
Her advice, in contrast to MA, would be to strike said language, ESPECIALLY if the venue has assured the artist that they are in compliance.
I didn't say the language shouldn't come out. I'm just saying that if the festival organizer wouldn't remove it and the OP was sitting in my office, I'd encourage the OP to move forward. Those are dice I'd suggest rolling. That's all. Would your wife recommend the OP not do the gig if the provision remained in?
In my professional life, I've seen a lot of lawsuits and dealt with a lot of attorneys.
What do you mean you’ve “seen a lot of lawsuits”? Have you ever seen (or do you even know of) one that even remotely approaches this fact scenario?
I can't remember a time I was ever advised by counsel that signing a questionable indemnity was ok because the client verbally advised that "everything was taken care of."
Not sure if that was directed at me, but, again, I didn’t say that. Not sure what kind of contracts you’re talking about, but every single day for many years I do the best I can with the leverage I have on any particular deal for songwriters, producers, artists, etc. Thankfully, most of my clients give me considerable leverage. However, there are some new songwriters, producers, or artists who are asked to sign contracts that contain language which isn’t favorable. If every one of those individuals waited for a music industry related contract (e.g., a recording agreement, a management agreement, a publishing agreement, a live performance agreement, etc.) to be purged of all language that was unfavorable or even “questionable” (whatever that means), there would be many, many careers that never moved forward.
By way of example, every single major-label recording agreement has language that basically says the label can demand immediate reimbursement under certain circumstances (e.g., the artist incurs recording costs in excess of the approved budget). If a lawyer unfamiliar with the real world of the music industry reads that language, they may think “Holy ****! My client could go over budget by $100,000 and have to write a check to the label!”
However, in the real world, two things happen. First off, if the artist is like the overwhelming number of artists on a label roster, they aren’t going to have the cash. This begets blood-turnip analysis.
Second, if it’s a successful artist, there is no way the label is going to ask them to write the check. It ain’t gonna happen. They want to keep successful artists happy. Besides, from a practical standpoint, the label can still recoup the money from future royalties (which is what happens).
Finally, and most importantly, in my opinion, I have talked to many label lawyers over the years and used to ask them if they ever enforced the immediate reimbursement language. Not one of them said they had. I then asked: “Why not just take it out?”. They said that making changes to their agreement requires all kinds of internal corporate review and discussion which they didn’t view as a valuable use of their time (given other pressing issues) since the language is NEVER enforced. God help the talent that’s repped by a lawyer who would keep their client from signing a deal for that reason.
Living in the real world,
MA
