The superstar environment
A superstar, as defined by the Cambridge Dictionaries, is a highly famous actor, singer, musician or sports player. He is a
A superstar is not limited to his core competencies. A football player might be a sought model for still photo shooting. A musician might be performing a role in cinematic films. A singer might be the crowd puller in television movies. And all of them will have advertising contracts, Youtube channels, and other side businesses.
A superstar needs a super agent. A 70% share of the Thai entertainment industry is managed by GMM Grammy, the largest media conglomerate entertainment company in Thailand. This local hero is involved in the lion share of all concert productions, artist managements, film and television productions, and publishings. The “big six” of international media conglomerates (The Walt Disney Company, 21st Century Fox, Time Warner, CBS Corporation, Viacom, Comcast) hold a surprisingly small market share in Thailand.
The agent pretends to be the friend of the superstar. In the cold beam of the headlights, he is quite the opposite, a co-signatory with the intention to squeeze more and more out of the human labor of the artist as long as he/she has superstar status. In Thailand, having one dominating market player, it is no surprise that the artist agreements have a miserable standard – from the viewpoint of the artist.
Contractual arrangements to be a superstar
Generally, the artist has three income sources: From his performance, the selling of existing (digital) IP rights and income from advertising agreements. In a comprehensive artist management agreement, the agent is legally entitled to enter into any performance agreement on behalf of the artist and the artist is legally bound by these arrangements. The contract deals with digital rights and advertisement engagements as well.
The artist should be clearly aware that a not negotiated artist contract, drafted by the agent‘s legal department, would not be a fair agreement, but sweating and exploitation of the artists’ talent, very near to the border of illegality because of unconscionability and lawlessness. The legal department of the agent company is working hard to optimize the profitability of the agent‘s performance – for the benefit of the agent only.
How to negotiate the parties‘ contractual obligations
Artist agreements can be concluded for three, five or more years. They might include an automatic renewal clause. It is a business decision and the evaluation of the artist whether he prefers a short contract because he is in development to become a superstar, or a long contract because his artist career is already phasing out. For obvious reasons the agent has an opposite interest, and the yearly payments will be negotiated in direct combination with the duration of the artist agreement. It is not a bad idea to think about an exit clause which gives the artist the option to terminate the contract for a pre-defined amount of relief money for additional flexibility.
The core of the artist agreement is the cardinal clause which defines the contractual obligations of the agent. The agency typically provides a draft with a flowery description of something that is in lawyer speak explicitly or implicitly a „best efforts approach.“ This means the artist belongs to a pool of artists, placing the artist in a fishbowl-type waiting room in the uncertain hands and fully at the mercy of the agent.
Instead, it is badly required to define the tasks and duties of the agent in an accountable manner, based on numbers, amounts, and digit. Depending on the artists type of performance, this could be numbers of events, the amount of marketing exposure or equal treatment with the top 3 or top 10 artists of the agency. Needless to say that a certain degree of uncertainty and vagueness will always remain. However, such an approach gives much more than a handful of nothing and opens the door for serious negotiations if the contract does not perform as expected by the artist.
Start early to become a superstar
Experience shows that it is typically too late to initiate negotiations on this deal point when the agency has delivered the draft of the artist agreement. Therefore, this deal point has to be the first negotiation position when the first contact with the agency has taken place. The first meeting does not have to focus on the remuneration and financial arrangements, but on the scope and size of promotion and support, the artist will obtain during the terms of cooperation. The promises and covenants have to be carefully noticed, documented and set out in writing, to be carefully implemented later.
While the agent will do his best to avoid clear and explicit obligations on his own site, he will draft not only a list of comprehensive duties for the artist‘s performance and continuous availability for marketing and advertising purposes but also a strict code of conduct for the artist‘s private life. The „artist agrees to fully and strictly comply with the following obligations“ section of the artist agreement has to be carefully reviewed to avoid severe gagging throughout the terms of the contract.
The dos and dont’s in an artist contract
The unqualified obligation that the artist presents, shows or performs any and all engagement works following any schedules and places as directed by the agent, should not be accepted. Even the exploitation under an artist agreement should respect certain limits. These are
- the performance has to generate a certain, predefined profitability for the artist.
- There have to be carefully defined limits on nudity, sexual level, violence and politically exposed statements.
- There have to be certain recovery phases. The artist should not be bummed.
- Additional ethical and compliance requirements should be carefully negotiated and agreed.
About the artist‘s private life, exemplary aspects are health and fitness, alcohol and narcotics, scandals and criminal behavior. The contract might include clauses regarding weight limits, esthetic surgery, and (non-) pregnancy. The artist should avoid accepting a termination and/or compensation right of the agent in non-defined cases of vague misbehavior. And he should not accept to fully comply at all times with each and every rules and procedure stipulated in the agent‘s own discretion.
Copyright issues: Ownership and responsibility for infringements
Under the Copyright Act of 1978, Thailand protects the author’s intellectual property. This covers works of authorship in the categories of literary, dramatic, artistic, musical, audiovisual, cinematographic, sound recording, sound and video broadcasting work or any other works in the literary, scientific or artistic domain, whatever may be the mode or form of its expression. Under the law, the copyright owner has the exclusive rights to
- reproduction or adaptation,
- communication to the public,
- letting for hire of the original or the copies of an audiovisual work, a cinematographic work and a sound recording, and
- giving benefits accruing from the copyright to other persons.
Copyright can be licensed or assigned. Copyright licensing allows the artist as the copyright owner to give permission to the agent to temporarily use, reproduce, or otherwise commercialize the copyrighted material. Assignments are permanent transfers of ownership. Employment contracts have typically so-called „IP protection clauses“ under which the employer establishes IP ownership from the work of the employee („work for hire“).
As a result, the artist agreement can stipulate that the work created by the artist results in copyright ownership of the agent. It can instead have a clause to transfer the ownership to the agency. And it can provide for just a license of the artist to his agent. It is obvious that the agent prefers full, unlimited and unrestricted ownership of the copyrights. This does not mean that the artist should accept this. The law firm advises superstars how to become not only famous but also rich.