‘Commercial Mediation – Music disputes.’

Music disputes are pregnant with litigation risk because they are multifaceted and legally complex. A case theory may hinge upon persuading a judge, on the facts, that an evolving doctrine of law avails the claimant of a remedy. Equitable remedies are discretionary. Consequently, there may be a high degree of uncertainty about legal merits and chances of success. Spiralling costs in litigation also create a power imbalance between an artist and a record company.

The range of claims is illustrated in a Table under the heading – ‘Deal Making Zone’ on the ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk, and include:
·       Band splits/departure of a member.
·       Breach of confidence.
·       Breach of Contract e.g. of a Booking Agency Contract, Management Contract, Music Publishing Contract, or Recording Contract.
·       Breach of fiduciary duty under a Management Contract – which is linked to claims for equitable compensation, rescission, and contract vitiation on the grounds of Undue Influence and the doctrine of Restraint of Trade.
·       Image rights (also known as ‘personality rights’ or ‘publicity rights’) i.e. an artist’s proprietary rights in their personality, which is linked to branding and endorsement. In England and Wales these rights are not codified. Unauthorised use of a person’s name and image is litigated by claiming for breach of contract; infringement of a Trade Mark; passing off; defamation and malicious falsehood; breach of confidence; breach of advertising rules; or breach of privacy.
·       Infringement of copyright, plagiarism and sampling without consent.
·       Violation of Moral Rights.
·       Passing Off.
·       Royalties – Calculation and deductibles.
·       Share of royalties – Claims by session musicians.
·       Songwriter split disputes.
·       Trade Mark infringement – e.g. the Band’s name, which is linked to ownership of ‘goodwill’ in the name.
Unless either the relationship between the Participants in Mediation [‘P’s’] has irretrievably broken down or the will does not exist to collaborate and ‘do a deal’, then as in the words of the late and great George Michael, commercial Mediation can not only – ‘Heal the pain’, it can also liberate the P’s, by enabling them to work out a creative deal to their mutual advantage. This can be achieved by maximising joint-gains in a way that furthers each P’s individual interests. For all P’s this requires a ‘paradigm shift’, whereby they each decide to apply their talents to a creative endeavour, instead of engaging in litigation – thereby avoiding the costs, risks, stress and publicity of going to war. In Mediation the P’s can also agree a commercial framework for settling a dispute on terms that a court has no power to order.
Google – ‘Commercial mediation of music disputes | Law Gazette.’