by Chris Castle
If you are like most artists, you feel overwhelmed by the alliance of Big Tech and Fortune 500 companies allied against us in the intricate network of brand sponsored piracy.Â
(If you need more background on what â€œbrand sponsored piracyâ€ means, just look around on the Trichordist or on MusicTechPolicy and youâ€™ll get the idea.)Â From Google search to Chilling Effects, some artists would like to know what they can do to fight back.Â Of course, if artists wanted to fight piracy full-time, they would be cops not artists.Â So we need to find ways to leverage your time more effectively and try to find everyday ways that artists can help themselves and each other to fight back.
You may not be aware of it, but clubs, tours and especially festivals or event programming take ads online.Â Sometimes these ads appear on pirate sites.Â Hereâ€™s an extreme example from the illegal lyric site, Lyrics007.com that rips off songwriters, in this case Adele:
Beyonce, Adele and the Super Bowl Exploited by Pepsi
Do I think that Beyonce knew that her name and likeness would be plastered all over illegal music sites?Â Of course not.Â Did the NFL know?Â Unlikely.Â Did Pepsi know?
Now that is a more difficult question.Â The problem that these big brands have is that someone always knows.Â Someone at their ad agency also definitely knows.Â Theyâ€™ll give you a big song and dance about itâ€™s a big system, millions of transactions, but it is simply not possible that no one knows, yet a brand the size of Pepsiâ€“a company that has been a very good friend to the music business, by the wayâ€“spends millions on an advertising campaign without knowing where its ads are going?
Put Them On Notice
Thanks to David Lowery, Camper Van Beethoven and Cracker, artists have come up with an easy way to create some incentives for their touring partners to take responsibility for where the promoters advertise their shows.Â And this concept could fit in every artist agreement from an one-nighter agreement, to a recording agreement, to Beyonceâ€™s Super Bowl promotion with Pepsi or any other event-driven advertising campaign.
The artist can tell them no.
With a simple contract clause that could go in the artistâ€™s agreement (including in the tour rider), an artist can prohibit the artistâ€™s work from being advertised on pirate sites.Â Violating this clause could put the promoter in breachâ€“but the point isnâ€™t to sue people.Â The point is to have a dialog, raise awareness and get people to be more careful.Â Offer promoters a competitive advantage to get the deals in the first place.Â If you want repeat business with an artist, donâ€™t let the artist see ads show up on pirate sites.
So whatâ€™s a pirate site?Â Big Tech would like you to believe that it is only sites that have been adjudicated an infringer in a final, nonappealable judgement before the highest court in every country of the world.
Thatâ€™s obviously bunk and designed to makeÂ you feel helpless because only Big Tech can afford that kind of litigation, so naturally thatâ€™s the bright and shiny object they want you to focus on.
Rememberâ€“you are talking about a private contract.Â Your private contract.Â How and where your show is marketed is a function of how much you trust your promoter to market your nameâ€¦your brandâ€¦so it is absolutely reasonable for you to want to control how you are presented to your fans and to the general public when you permit someone else to make decisions about that marketing, just like you would decide that the headlinerâ€™s name came first in billing.
Meaning that if you are making a private contract, you are in control of your marketing (at least generally) and you can negotiate those terms.Â The list of sites you want to excludeâ€“if anyâ€“is up to you, a subjective decision.
You could also decide that you want the promoter to be able to refer to an objective list, that is, a list determined by a third party who you both agree will reasonably set the standard.Â The USC-Annenberg Innovation Labâ€™s Transparency Report uses the Google Transparency List.Â This is a good list, but Google has some pretty large exclusions from that report.Â So the language that Camper and Cracker like also includes the US Trade Representatives Notorious Markets List, which is much shorter than the Google list, but uses US Government resources in its determination.
Suggested Contract Language
If you decide you want to go this route, the Camper/Cracker antipiracy clause covers three bases, which I think are probably good enough:Â The USTR List, the Google List, and whatever list the artist may come up with that isnâ€™t on either of those lists.Â (The artist doesnâ€™t have to give a list, but reserves the right to do soâ€“the artist may also add back sites that USTR or Google would exclude.)
Hereâ€™s the language (â€œBUYERâ€ usually refers to the talent buyer or promoter):
â€œTHE BUYER WILL NOT, AND WILL NOT AUTHORIZE THIRD PARTIES TO, ADVERTISE THE SHOW ON ANY WEBSITE THAT IS LISTED ON THE CURRENT US TRADE REPRESENTATIVEâ€™S NOTORIOUS MARKETS LIST (currently http://www.ustr.gov/sites/default/files/121312%20Notorious%20Markets%20List.pdf), OR THAT IS LISTED IN THE CURRENT GOOGLE TRANSPARENCY REPORT (currently http://www.google.com/transparencyreport/removals/copyright/domains/?r=last-month), OR THAT THE ARTIST HAS INFORMED THE BUYER IS A SITE ON WHICH THE ARTIST DOES NOT WISH THE BUYER TO ADVERTISE THE SHOW.â€
Obviously, this is not meant as legal advice and you should confirm with your own lawyers how this language might affect your rights under the particular agreement, but it should be a good starting place for any show agreement that is based on the American Federation of Musicians â€œOne Nighterâ€ agreement or the equivalent.This language could be included in a watermark on any pdf version of a show agreement, or placed in the artistâ€™s rider.
Flow Down Language
In more complex situations, you may wish to consider adding it as a flow down provision in a promoter agreement that requires the promoter to include the language in any show agreements.Â A flow down provision is a clause that anticipates the other side will be empowered to make many contracts with third parties that give effect to the principal two-party agreement, and one side wants to control certain aspects of those third party contracts without negotiating or signing them.
For example, a US promoter might buy a 50 city tour and have an overall deal with the band.Â The US promoter then goes out and contracts with local promoters for each of the 50 shows.Â The artist may want to get the US promoter to promise the each of these 50 contracts will have certain clauses to protect the artist often relating to staging, insurance, venue sales and advertising.Â Thatâ€™s a good place to put the antipiracy clause, but the artist is not necessarily a party to those agreements.
Artists Helping Artists
It is easy to see how this language could be adopted in sponsorship or event agreements, and iÂ t would go a long way to raising awareness of the situation and incentivizing all concerned in the right way.
Itâ€™s nothing personal, itâ€™s just business.