There is no question that the music industry as a whole has an indelible effect on people across the world. While individual preferences and genre favorites may differ, music is a beloved pastime and source of entertainment for almost everyone, and this is not likely to change anytime in the foreseeable future. This industry, however, is not without its fair share of problems. Disputes and disagreements occur in any business, and these conflicts need to be handled with extra care when they happen in industries with significant media coverage.
When musicians, producers, and recording labels have disputes, “music blogs and news outlets scramble to provide breaking coverage of all the ugly details,” states Joseph George, a certified mediator, and music industry negotiator. No one wants their private affairs to become a public battle, especially when it can lead to a brand or image being tarnished. That’s why alternative dispute resolution (ADR) is the best tool for resolving music industry disagreements. By using ADR methods like arbitration, mediation, and negotiation, private disputes can remain private and be solved efficiently.
Typically, disputes among music industry professionals and artists revolve around breach of contract, fraud, or copyright infringement. If an artist sues for breach of a publishing, recording, or management agreement, litigation can be costly in more ways than one. Financial costs can become exorbitant in these situations, but more importantly, the cost to the artist’s reputation and brand can be challenging to overcome.
Gossip sites and companies like TMZ, E!, and omg! will often go to great lengths for a story, even if it means exploiting and sensationalizing what is otherwise a minor disagreement. Being forced to publicly defend something that was intended to stay private is a difficult burden to bear, but this is almost guaranteed to happen once litigation commences.
It is also worth noting that celebrity culture draws in prying eyes and cameras, and this attention isn’t limited to the artists or industry executives themselves. This intense media coverage often extends to family members and loved ones, which is even more motivation to keep disputes confidential and quiet. ADR methods such as mediation and arbitration can provide a way to keep conflicts private and avoid the spectacle of going to court.
In order to get ahead of these potential difficulties, music industry professionals can negotiate a contract that includes a binding arbitration provision. Such provisions can prevent disputes from ending up in court, and there are many variations that can be tailored to the parties involved. Often, an arbitration provision will state something like the following:
Sample Arbitration Clause
“All disputes arising under this agreement shall be resolved by binding arbitration before one arbitrator in Ponte Vedra, FL. The Award of the arbitrator shall be final and can be enforced in any court in the State of Florida. The prevailing party will be entitled to recover reasonable attorney’s fees.”
Additionally, a contractual provision for binding arbitration can specify the arbitrator or private arbitration company that will be used in the event of a dispute. Private companies like JAMS and ARC, for example, provide retired judges to act as arbitrators and mediate disputes, as well as private conference rooms to conduct the proceedings. These contract clauses can be added to address numerous types of disputes, including those that deal with contracts, licensing, and intellectual property infringement.
Because relationships are the cornerstone of a successful media career, divisive encounters should be avoided at all costs. Litigation can be the source of irreparable ruptures in business connections, but ADR techniques like mediation and arbitration can resolve disputes while maintaining the delicate relationships between parties.
What Is Arbitration?
Arbitration is the most formal of all ADR processes. It puts the final decision into the hands of an arbitrator who, like a judge, hears arguments and evidence before deciding on the outcome of the dispute. There is often a little discussion between the parties regarding a reasonable solution, as the outcome of the dispute is decided by the arbitrator alone.
The two main types of arbitration are known as binding and non-binding. In binding arbitration, both parties waive their right to a trial and are bound to abide by the arbitrator’s decision. This decision is final, and the parties cannot appeal. Non-binding arbitration is similar in process, but the crucial difference is that either party may request a trial if they do not accept the arbitrator’s decision.
What Is Mediation?
Mediation is more informal than arbitration. This process allows the parties to have more control over the outcome, while a neutral third party facilitates productive, results-oriented discussions. This impartial party is called a mediator, and their ultimate goal is to assist everyone involved in the dispute in reaching a mutually acceptable solution. This method is especially beneficial in situations where the preservation of their working relationship is critical.
What Is a Business Negotiator?
A business negotiator is a professional negotiator who uses their knowledge of the business world and the process of negotiation to settle disputes. The disputes involving a business negotiator usually center on business issues amongst a company or stakeholders. The parties agree to allow the business negotiator to determine the most mutually-beneficial outcome.
Joseph George is a Florida Supreme Court Certified County Mediator with extensive experience mediating music industry disputes involving claims for breach of contract, copyright infringement, civil rights, consumer product liability, and private lab disputes.
Q & A with Joseph George
Q) How do alternative dispute resolutions benefit the music industry specifically?
JG) While it’s true that methods like arbitration and mediation can be beneficial for professionals in any industry, people involved in media-centric careers and fields that have a high level of public scrutiny are even more likely to find ADR advantageous. Privacy and confidentiality are of the utmost importance, especially when they are scarce, which they often are in the music industry.
Q) In your experience, is there a high satisfaction or success rate in these cases?
JG) Absolutely, people are often very motivated to reach a resolution when their careers and reputation are on the line. Any hint of trouble brewing can be disastrous for music artists, so using these ADR methods can help them keep the details private and hurry the process along to an agreeable close.
Q) What specific types of disagreements are most common?
JG) Creative differences are incredibly common, as you can imagine. When you have multiple people working together on a project, and each of them feels emotionally connected or especially invested in the final product, there are bound to be disagreements. These conflicts can cause disputes in areas like breach of contract, copyright infringement, and intellectual property rights.
Q) Do you think that contractual arbitration provisions are the best option versus just relying on the arbitration process if a dispute arises?
JG) The arbitration process is a solid method for reaching resolutions, but I’d suggest using a contractual provision instead of just crossing your fingers and hoping for a great outcome. Getting ahead of a problem and thinking proactively is always a good idea. No one likes to enter into a business deal or an agreement planning for the worst, but this approach gets a bad reputation. I don’t see it as pessimistic or self-defeating at all; instead, I’d call it good business practice.
Q) What would you say is the most important takeaway from this discussion?
JG) Well if I had to sum it up, I’d say the one thing I’d want people in the music industry to understand is that you have options. Litigation isn’t the only way to resolve problems; you don’t have to put your business out into the world like that. Even in the context of ADR methods, there are options.
Mr. George has negotiated countless contracts, mergers, and acquisitions for corporate companies. Mr. George can be reached at his firm www.georgeandgeorgeadr.com.
Disclaimer: This article is not intended to be specific legal advice for any particular case. You should retain an experienced entertainment attorney to advise you about the best method to resolve your dispute.