“Tik Tok”: Exclusive Deals’ Time Restrictions in the Music Industry

Kesha—whether you’ve heard her music, haven’t heard it, or wish you never heard it, one thing rings true—you haven’t heard a new song from her in at least a year. Now, many people assume that she has gone the route of one-hit wonders or entertainers who’ve retired or just couldn’t produce another hit song. However, this isn’t the case with Kesha (who is famous for songs such as “Tik Tok”). Currently, Kesha is swamped in a legal battle at the Los Angeles County Superior Court with music producer Dr. Luke on the allegations that he sexually assaulted her. Dr. Luke has also countersued. Dr. Luke’s company is responsible for many artists’ hits, including Rihanna and Katy Perry, and his record company is “housed” by Sony.

Under Kesha’s contract, she has agreed to a six album deal with Dr. Luke’s record company. Because of this contract, Kesha is effectively not allowed to make any music with any other music producer. As a result of her contract and the law suit, she has been unable to produce new music, tour or promote any of her merchandise. This is especially a problem for her because the majority of artists make most of their money from merchandise and tour sales. While some people may not be upset about not hearing new music from her any time soon, this raises an interesting legal question about the restrictions placed on artists’ recording contracts, specifically restrictions regarding time and the number of albums an artist must produce with a company.

Essentially, there are three types of recording contracts in the music industry, which include a development deal, a licensing deal, and an exclusive deal. The development deal is a contract where the record company will help to develop the artist, and the artist agrees to record around five tracks. Unlike the other two types of contracts, an album here is unlikely to be recorded, and the company is unlikely to support a new artist for a tour or music video, unless another type of contract is formed. Like the other two types of deals, the licensing deal gives the record company copyright for the artist’s tracks for a set amount of time.

The exclusive deal is basically what most artists want in the industry. However, this type of deal restricts the artist to recording for only a certain company for a set period of time. This is the type of deal that Kesha is involved in.

Exclusive deals or contracts aren’t rare in the United States. They aren’t rare throughout the rest of the world either. In fact, versions of these types of contracts have caused many problems in South Korea’s music industry. Many of the recording deals in South Korea require the artist to only work for the company for a long period of time, and these deals can be incredibly restrictive on the artist. For example, one South Korean pop group named Dong Bang Shin Ki sued its management company because their contract required the group to only work for their management company for thirteen years, because the contract was very restrictive, and because they made little profit. The court in that case agreed with the group, and South Korea’s Fair Trade Commission then set out a model contract for the music industry.

Exclusive deals tend to greatly favor the record company over the artist. This raises an ethical concern about the period of time that the company can require an artist to exclusively work for that company. Record companies should consider making these types of deals fairer to the artists, with respect to potential legal issues and time constraints. However, it seems very unlikely that a company would do this. After all, who would want to lose such a superior bargaining position? In Kesha’s case, she is unable to work because of the lawsuit, while Dr. Luke’s production company is continuing to produce hits for other artists. Frankly, this type of control is more concerning in comparison to artists who are not nearly as wealthy and who do not have as much money to fall back on as Kesha. While this type of contract restriction is unlikely to change in the near future, music companies should consider placing lower time or album-number constraints on artists in exclusive deals.

 

Kelci Scirrotto is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


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