It feels good to be told you’re special and unique. However, much like everything in the music industry, what you’re told and what’s on paper typically comes with a disconnect. Oddly, “special” and “unique” within a contract can be a pure death sentence. Unless it’s your Mom saying it, kick out the language – here’s why:
In most standard industry agreements, you’ll see terminology such as, “You acknowledge that your services hereunder and granted to the Company are of a special and unique character.” You may even see phrasing such as “peculiar value” or “irreplaceable talent.” On the surface these can be easy to ignore because they’re supportive remarks, but it’s the legal undercurrent that becomes detrimental. The terminology is strategically crafted to connect to legal remedies. In short, legal remedies help enforce the rights for the party being wronged, or even help impose a penalty against the breaching party. Legal remedies come in many forms, but the two most concerning to entertainers signing “special” and “unique” agreements should “damages” and “injunctions.”
Acknowledging you’re special and unique on paper solidifies the legal remedy. It sets the stage for punitive damages – which is a game you don’t want to play. Damages are typically calculated based upon what makes the non-breaching party whole again – unless there’s a unique situation……enter the strategic legal language. Take a record contract for example. If Artist X signs a recording agreement and then fails to meet the recording deadline, Artist X is now in breach of contract. If the label decides to sue Artist X, damages would be calculated (a) based upon the monetary figures lost by the label at that time, and (b) based upon the “potential” loss by the label given the fact the Artist was so unique that their services couldn’t be duplicated by any other act. The punitive damages essentially serve as a harsh penalty to detour the situation from happening again. Worse, the label could enforce injunctive relief, which could stop Artists from signing with future labels, etc. Either scenario would be a career killer.
The language seems so innocent but it’s used as a sword, and believe me, it is used often. To combat the terminology, either (a) ask to have the feel good language removed, or (b) have the other party acknowledge that their services are also unique and special.
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