Unschooled about music law? Don’t let the industry exploit you

Unschooled about music law? Don’t let the industry exploit you
04 May 2018

When musicians Ray Phiri and Paul Simon collaborated on Graceland, it’s unclear whether there was a contract signed that allowed Phiri to earn royalties from his input. Nearly at the end of his life, Phiri claimed that Simon had cheated him of his royalties.

Phiri is not alone. At the beginning of their careers, most musicians are unaware of how the music industry works. Eager to put signatures on life-changing contracts, they are likely to overlook their rights. This is especially true of musicians from rural areas, says music and entertainment lawyer Ryan Tucker.

“Some of the artists that have come to me are from rural Eastern Cape. They don’t have access to entertainment lawyers like people in the city do. They don’t have access to the type of information that they need in order to make the proper decisions.”

Unschooled about music law and contractual issues, obtaining legal advice is a costly challenge. With no one to help them, young musicians are likely to entrust the all-important issue of contracts and royalties to record companies.

While the companies are not in the habit of taking advantage of the vulnerabilities of “naïve” musicians, says Tucker, they are businesses and will always try to craft contracts tilted in their favour. Fledgling musicians often find they cannot challenge these contracts.

“The record company comes to them and promises them the world and says, ‘Let’s just build this thing together. It’s gonna be amazing’,” Tucker says.

Graceland has always had controversy and problems. It was recorded by a white musician (Simon) and black musicians (Ladysmith Black Mambazo and Phiri) as SA was being punished for apartheid by a global cultural boycott.

The less reported problem is the allegation that Phiri wasn’t properly credited for the music he made and he “hardly got any royalties” from his work on Graceland — an allegation that garnered much attention when Phiri passed away last July.

In defence of the exploitation of musicians, industry experts say that were it not for chances afforded to them, these musicians would not have progressed in their careers.

Richard Mitchell, a sound engineer and friend of Phiri, thinks that were it not for Simon and Graceland, Phiri wouldn’t have had a chance to perform in New York City at the prestigious Madison Square Garden, a “once-in-a-lifetime experience for any musician, especially one from Nelspruit”.

Graceland was a life changer for Phiri, who “came from the townships”, says Mitchell.

Phiri owned a car when his band mates could not afford one. After recording sessions, Mitchell would drop them in town so they could get taxis back home to the townships. Days later, these musicians would be on planes and picked up in limousines once they were in New York.

When musicians form bands, they often have a passion to change the world. In their optimism and euphoria, they are less likely to focus on contractual issues, duties and compensation structure.

Jon Savage, a former musician and friend of Phiri, says there’s nothing like passion to pull artists in one direction. But after the band mates taste success and make a big hit, newfound money can become a bone of contention.

“When projects of passion come together, everyone is gung-ho and everyone is putting everything on the table. And then when a project becomes successful, it’s very easy … everyone is so cool and happy,” Savage says. “But when there’s money involved, if that song becomes a big hit or that album becomes a big hit — suddenly everyone is asking for their piece of the pie.”

This poses a huge risk when musicians disband. No longer bonded by their erstwhile optimism they will take each other to court to solve their differences in cases that are akin to divorces, says Tucker.

These are issues that could have been dealt with at the start. These cases become costly and their intensity can destroy whatever is left of the friendship between the feuding band members. This might explain why the Phiri-Simon royalty dispute case never made it to the courts. A ruling would have examined Phiri’s allegations.

Should record companies take the blame when their artists are cheated or should they educate their musicians? Tucker is adamant it should be every artist’s responsibility to take care of themselves. Whatever contracts the musicians sign and whatever deals they get into, it is the individual musician who should take the blame when things go wrong, he says.

“It’s still incumbent upon the musician to understand the contents of the agreement. You are signing at the other end of the agreement. Once you sign there, you are obliged to comply with obligations and terms of that agreement,” he says.

What motivated Phiri to share his grievances with the world after years of silence? Journalist Nikki Temkin believes he thought “he deserved more and Paul Simon actually never thought he did”.

Temkin believes that South African musicians are more naïve than their international counterparts. American musicians place much faith in lawyers and contracts; not so in SA. “Everything here is a little bit more informal,” she says.

Times have changed since Graceland was made in the 1980s. Legal advice is free on the internet. Musicians, especially at the start of their careers, should know at least the legal basics.

They should also consider music and entertainment lawyers, says Tucker.

Article written by Lungile Sojini.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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