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Ailish McKenna, Solicitor, Bray & Krais Solicitors, poses the question: What restrictions can brands reasonably impose on artists?
The word “partnership” can be used to describe a whole range of relationships in varying settings. In the area of brand endorsements, the word is commonly used to define the nature of the relationship between the Brand and the Artist chosen to endorse certain goods and services under that Brand. Both parties entering into a media partnership have their own interests to serve. The hope and the intention is of course that a mutually beneficial and fruitful alliance will unfold. To achieve that result, there needs to be a careful balance of rights and obligations in the media partnership agreement. Usually, the first stage of the collaboration will include the negotiation of the terms that govern the relationship and the putting in place of a contract which incorporates those terms. Some examples of areas which often lead to protracted discussions and complications, which can be avoided, include the length and breadth of the arrangement; also in a commercial arrangement, it is of course reasonable for a Brand to seek to impose restrictions such as exclusivity provisions on the Artist. However, unless these provisions are reasonable in terms of sector, duration and area, they will not be welcomed and can be problematic – sometimes even unenforceable. The Artist’s representatives will carefully consider whether the Brand is paying enough to take the Artist out of the relevant market altogether for the life of the campaign. ‘Good behaviour’ clauses are often controversial. Every Brand needs to protect the reputation of their goods or services which will have taken considerable time and resources to build. As a chosen ambassador for the Brand, understandably there is an expectation that the Artist will uphold, and not tarnish, the reputation of the relevant goods or services. It is reasonable to impose penalties for a situation where an Artist intentionally does something in public during the life of the campaign which has a direct and serious negative impact on the Brand. No-one has a crystal ball to enable them to predict the headlines of the future, so the partnership will always be a leap of faith to some extent. However, there are also practical considerations which should offer Brands some comfort outside the legal framework. An Artist will be accustomed to being at the forefront of the creative process in all aspects of their career. When it comes to endorsement partnerships, an Artist will expect to be treated in the same way. Whilst materials which go into the public domain are of course promoting and endorsing the Brand, they are still using the Artist’s image and public profile. Usually, the Artist will want to contribute to the process by way of approvals over materials using the Artist’s name, image or performance. Whilst the Artist does deserve some input, it would not be fair for the Brand to be put in a position where they are left high and dry with no campaign materials because of a stalemate over approvals. A practical solution is for the contract to offer reasonable approvals to the Artist (which can include short turnaround times, for example). Brands are well advised to conduct sufficient due diligence when collating the rights package. The Artist will usually have other contractual commitments, restrictions and obligations already in place which will need to be taken account of. For more information, contact Ailish McKenna - This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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