In recent news, Chocolate City served Brymo with an injunction, restraining him from recording, releasing or promoting any new music other than on the Chocolate City label. Brymo is reported to be under contract to the label until 2016. There will be a further hearing where Brymo gets to tell the court why the injunction should be lifted while the lawsuit – most likely for breach of contract – is ongoing. Until the suit is finally decided, here are a few lessons that upcoming artistes can take away from the squabble.
1. PACTA SUNT SERVANDA (or Agirriment issi Agirrimenti o!!)
This latin maxim, that promises must be kept, is the lifeblood of commerce. The assurance that mutual promises will be kept is the reason for putting them down on paper in the first place. A contract is just a piece of paper with words, until things go wrong and one of the parties to the contract decides to ask the court to enforce what agreed. You are bound by what you have freely signed to.
Photocredit: fanpop.com
If it is true, as Brymo reportedly alleges, that Chocolate City were remiss in their contractual obligations to him, his recourse would have been in the text of his contract. This leads us nicely into our second point.
2. LAWYERS ARE YOUR FRIEND
Lawyers and taxmen are loved by only a few. But it is absolutely important that a budding artiste seeks legal advice before signing that first deal. In fact, many of the contracts in circulation have a clause in which the artiste expressly states that he has sought legal advice before signing the contract. A lawyer – a good one, anyway – will ensure that a minimum set of obligations is required to be met by the label at various milestones, that a procedure for the artist to exit if the label defaults is outlined and, occasionally, that a buyout fee (as in football) is agreed so that if the chemistry between the label and artiste is truly bad and the artiste can afford it, he invoke the clause and leave.
But new artistes never have any money, you say. How will they pay for legal advice? If they truly have no learned friends, they could ask the label for an advance (recoupable by the label, obviously) to cover that cost.
3. WHEN A COURT ISN’T A COURT
Unless it’s part of some intricate PR strategy, there’s no point subjecting a matter to the court of public opinion that can only really be decided on by a court of law. No amount of public sympathy for you, however justified, can relieve you of your contractual obligations. Only the party you are bound to or a competent court of law can.
If you were failed, why did you not invoke the relevant clauses in your contract and seek proper termination. Since when did a unilateral public declaration terminate contracts? (Sidebar: I forget myself. I am a Nigerian after all. And our government has unilaterally cancelled innumerable contracts.)
So, before publicly announcing that you have left your label (which could be a breach of contract and entitle the label to damages in some cases), make sure that you either have a letter of release from the label or an order of the court to quash the contract. Otherwise, you’ll make your label angry – and you won’t like them when they’re angry.
4. HOTEL CALIFORNIA
One of my favourite songs of all time ends with the line “You can check out anytime you like, but you can never leave.” Even without the interim injunction in place, this limboville is where an un-released Brymo would have found himself. Recording contracts are usually an exclusive business. This means that while the contract is in force, the artiste cannot record or perform music except as arranged by the label. To do otherwise would be an infringement on the rights of the record label and the law has these cute devices called “damages”, “accounts” and “destruction”. Damages – the court “fines” you for your infringement; Accounts – the court orders you to hand over all the profit from the sales of the infringing music to the plaintiff; and “Destruction” or, more correctly, obliteration on oath, the court asks you to destroy all copies of the infringing music. Or all three!
So you’ve left the label, but have you, if they still get the money from your music?
5. THE THEORY OF RELATIVITY
Time passes faster in the arms of a beautiful woman than in a prison cell serving time, was how one movie character explained E=MC2. The next 3 years could seem like 30 (for Brymo) if the parties concerned are unable to resolve this issue quickly.
One way to sort this all out might be for Brymo to jejelly hand over the masters for the new album and claim back all recording and associated costs from Chocolate City. If they’re going to “own” the music, one could argue that they assume the burden for making it.
Conflicts will arise in the course of commerce and resolving them speedily is inextricably tied to the document creating the relationship.
Related articles
- Jesse Jagz Don Kum Out To Defend Brymo For Choc City Wahala + See The Court Injuction Papers (proudlymumu.wordpress.com)
- “Brymo must honour the contract” – Chocolate City vice president, M.I, speaks on Brymo’s feud with the label (famouspeoplenews.wordpress.com)
- Chocolate City gets a Court Injunction against Brymo (phlastgirl.wordpress.com)
- The Court Injuction Chocolate City Filed Against Brymo “Leaked” | Pictures (coolhayden.wordpress.com)
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TexTheLaw posted: “In recent news, Chocolate City served Brymo with an injunction, restraining him from recording, releasing or promoting any new music other than on the Chocolate City label. Brymo is reported to be under contract to the label until 2016. There will be a fu”
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Pingback: 5 Things New Artistes Should Learn From Brymo vs Chocolate City – Y! Opinion
There are so many things to say here, I think I’ll do it through multiple comments.
Let’s start with a story. The last time I was interviewed on FM radio in Cotonou, I was asked who the first person a young artist/band should “hire” or contract with. My answer was “a lawyer”, and I could see the journalist’s face change… “Why?” he said… “well, to read the contracts htey might be offered”. “Shouldn’t they first hire a manager to start with?” he added. “Surely not. I’ve seen so many bad contracts for recording, publishing, touring that artists from everywhere in the world signed without understanding what they meant, that the lawyer, or at least someone who reads and tries to understand what’s written, is a real need.”
I later learnt that the journalist was an artists manager too. I know why he was so “sad”
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To conclude on my previous comment, why start with a lawyer and not a manager? Because you’ll need the lawyer to check the manager’s contract… 😉
Going back to points 1 & 2: a contract, any contract, any business, it not meant for the “good days”, when everything works smoothly. A contract comes alive only when one of the parties doesn’t follow the rules to advance the common business. This means that you can have as many pages as you like in a contract, the most important part is : how to we end the relation created at the time it was signed?
Then artists really need a lawyer with demonstrated real knowledge of the Music Business and Intellectual Property, to “proofread” and give advice on any contract. Don’t ask any lawyer, as they usually are (and should be) specialized.
And I can tell you that finding IP-focused lawyers in SSA at the moment, seems like a quest.
If I understand the matter here, the artist probably signed an exclusive contract for many years (5? 2011-2016 if what I read online connects the dots). Seems unbelievable… Is it a recording contract only? or does include management? What else? What advance did the artist get, that would have validated this exclusivity? Anyway an exclusive record contract, if any, shouldn’t be for an artist/band as a “project” or a “brand”, but for 1 or 2 recordings, with options if desired for more recordings. If the contract is about the artist/band then it’s a management contract… And mixing a management and recording contract seems, at least, odd… (we could talk 360-degrees contracts, but not now 😉 )
BTW, on a side note, when a band is signed, all “founding” members should/must sign an agreement between each of them, to define their “rights” to many aspects of the band’s life, and mainly what would happen if they split: how a member can be replaced, who keeps the name (depends if it’s trademarked too)? can new song be released under the band’s name? Previous and future copyrights management (relations with publishing agency)…
On point 3, I totally agree. If there was a breach of contract on the label’s side, you have to (try to) terminate as stipulated by the contract. Not by email. And not through Twitter…
I read on other sites, that the artist had problems with the way accounting was done. The contract should have a section explaining when and how to do an audit.
BTW, the recording industry (as well as the film industry) has been known for decades worldwide for what’s called “creative accounting”. If you never audit your royalty payments vs any advance, what’s positive and negative in the balance… or wait till it’s too late, then it’s too bad for you.
My last advice: when signing a recording contract, negotiate when you’ll be able (and how much it might cost) to reclaim your masters… if you own you’re own music, you’ll feel better for the next part of your career.
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To conclude: many African artists based e.g. in Europe showed me their recording/touring/management contracts and I know a lot of “horror” stories (creative accounting, publishing thieves…).
There’s quite a lot of work to do to train & coach artists on Intellectual Property, the music business as a whole, and specifically the recording industry (if it survives) and what the digital future will be.
There’s a full ecosystem to build, and that can’t be achieved with only a few people understand what it’s all about…
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Many thanks for the insight Didier. Hopefully, as more of these test cases come up and as people in the know (like you) share more and more knowledge, we should see this ecosystem begin to develop.
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It’s not knowledge per se… I don’t have answers, just questions I want to ask…
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Nice article. Comments…even better!
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Nice article… Great contribution from Didier
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