Your Unique Services

Continuing on with my review of miscellaneous clauses found toward the end of most songwriter contracts, let’s think about how unique your songwriting services are.  There’s a saying that if you locked a dozen chimpanzees in an office with 12 typewriters, they would eventually hammer out A Tale of Two Cities.  But if you locked a group of monkeys in a room with 12 guitars, would they eventually come up with “Achy Breaky Heart?”

Maybe that’s a bad example.  The point I’m trying to make is that songwriters are not readily interchangeable.  Nor are the songs they create.  If a publisher employs a stable of writers, replacing one of those writers (if the writer dies, quits, or is fired) is not a simple matter of putting an ad in the paper and hiring an identical replacement.  You have your own peculiar style, reflected in your songwriting.  This is so true that songwriter contracts usually devote an entire paragraph of legalese to describing just how unique you are.

Here is an example of the way many of these paragraphs begin:

Writer acknowledges that his/her services are of an extraordinary, intellectual, special, unique and unusual nature, which gives them a peculiar value, the loss of which cannot be adequately or reasonably compensated in damages in an action at law.

Many songwriters, glancing over their contracts, trying to make sense of them, probably get this far and then move on to the next paragraph, assuming that this is a harmless section, simply acknowledging the great talents the songwriter is bringing to the relationship. Wrong!  This paragraph, like most, has a more sinister purpose.

Believe it or not, most songwriters, even those with songwriting contracts, are not generally wealthy. Songwriters who don’t have much money, and have entered into a publishing contract or contracts here and there over the years, may be tempted to “get out” of a bad contract by simply ignoring it and signing with another publisher, even though a prior contract is still technically in effect.  Some may express the attitude, “So what?  I’m judgment-proof.  My old publisher would never sue me.  It wouldn’t be worth the court costs, because even if the publisher won, he would never be able to get any money out of me.”

It is certainly true that most lawsuits are about trying to get money from the defendant.  It is also true that many assets of a defendant, (in Texas, one’s homestead, for example), are usually exempt from collection  But there are other remedies available at the courthouse besides money damages.  One of the most important is the injunction.

An injunction, or restraining order, is an order by the court barring a party from engaging in a specified activity, whether it be spouse beating, dumping toxic waste, or delivering songs to one publisher in violation of the terms of a pre-existing, valid contract with another publisher.

Injunctive relief is not all that hard to obtain.  In Texas, it often starts off with a 14 day temporary restraining order, or TRO, which some courts will grant without even affording the other party a hearing.  (A hearing is required to extend the TRO into a temporary injunction and, finally, a permanent injunction.)  There are, however, some special requirements.  One of the things a plaintiff must show in order to have an injunction issued against a defendant is that the defendant is harming the plaintiff in some way that cannot adequately be redressed by money damages. While we often act as though everything has its price, the law recognizes some exceptions.   For example, the law recognizes that a particular piece of land is unique and different from every other piece of land. An action for money damages may not always be appropriate when land is involved.  Therefore, injunctive relief is available to protect a landowner from harm being caused to his land by another.

With that in mind, let’s return to the “unique services” paragraph and see how it is likely to continue:

Therefore, a breach by Writer of any of the provisions of this Agreement will cause Publisher great and irreparable harm, injury and damage. Writer expressly agrees that Publisher shall be entitled to equitable relief to enforce this Agreement or prevent a breach thereof, in addition to any other remedies, for damages or otherwise.  

Again, this looks fair enough to the layperson.  What could be more right than something called “equitable relief?”  Well, the legal definition of equitable relief is any sort of judicial remedy other than money damages, i.e., injunctive relief.  By agreeing to this contract language you are helping the publisher clear a major legal hurdle in obtaining an injunction against you–the very type of court order to which you, as a starving artist, are most vulnerable.  You may not care if there is a money judgment against you if you are too broke to pay, and a publisher may not feel like spending resources on attorneys fees just to get a judgment for money damages that isn’t worth the paper it’s written on.  But an order preventing you from working with a new publisher could be disastrous, (or highly effective, from the publisher’s point of view.)  Violation of a court order is contempt of court, punishable by jail time.

Most laypersons, both songwriters and publishers, don’t realize the importance of this “miscellaneous” provision.  In fact, an unsophisticated publisher may eliminate it if you ask, (especially if the publisher, and not his or her lawyer, is handling the negotiations).  Even if it is eliminated, you can be sure that the publisher will try and introduce evidence at an injunctive hearing to prove how unique your services are, but at least you won’t have helped the publisher out by agreeing ahead of time.  And now you know this clause is not just a compliment.  Realistically, the most you or I will probably be able to negotiate is a re-wording of the paragraph so the publisher has the right to seek equitable relief.  Everyone has the right to seek all sorts of relief at the courthouse, so you haven’t really given too much away then.