Brand Sponsorship & Endorsement Agreements For Musicians
By Justin M. Jacobson, Esq.
With the evolution of the music business in today’s digital age of streaming and downloads; the ancillary income that musicians generate from brand sponsorship and endorsements have become of paramount importance to an artist’s overall earnings. For instance, “sponsorship spending on music tours, festivals and venues is expected to total $1.54 billion in 2017,” which is an increase of “4.8 percent from 2016.” In addition to this spending, many major brands have also entered into multi-year, multi-million dollar endorsements arrangements with musicians, including Pepsi and Beyoncé’s $50 million deal. With the increased frequency of these types of arrangements and the potential large sums of money associated with them, an artist should ensure that all of the endorsement deal “points” are clearly articulated and negotiated. This is typically best accomplished through the use of a written agreement. We will now explore some considerations and provisions included in many endorsement and sponsorship contracts.
Most sponsorship arrangements are similar with both the musician and brand agreeing to certain obligations in exchange for the other party’s performance. This means that the artist is responsible for fulfilling a list of stated duties known as “deliverables.” In exchange for the artist’s fulfillment of its “deliverables,” the musician is entitled to the compensation agreed upon in the agreement. This compensation could be the sponsor providing the artist with free goods, product discounts, money, or a combination of these. What an artist may receive from a sponsor differs based on a variety of factors, including the notoriety of the musician, the brand’s “ask,” and the length of the activation. In this context, the “ask” is what the artist is obligated to do (its deliverables) on behalf of the particular sponsor.
As already mentioned, an artist’s “deliverables” differ based on what the musician is contracted to do. For example, the written contract may specify the particulars, such as a certain number of shows and appearances that the artist must make on behalf of a company during the agreement’s term. The document may also list the musician’s other obligations, including potential product placement in the artist’s music video, while conducting interviews or photoshoots as well as any “branded” stage signage at any live performances or appearances. The talent may also be required to include a brand’s logo on the musician’s website, its social media platforms as well as possibly conducting “in-store” events or other personal appearances on behalf of the company. It is therefore prudent for an agreement to list the frequency and content of any published statements made by the artist on behalf of the brand. This includes the company potentially providing the musician with pre-drafted “copy” of the text for any social media posts that the artist is contracted to make.
It is also practical that any expense related to a brand promotional campaign is enumerated in the agreement. For example, if the sponsor requires the displaying of any banners or creating of specific “branded” giveaways, the contract should specify who is responsible for providing the items and at whose cost. Generally, the sponsor will be paying for these items, or at least supplying them to the artist at no charge. However, this may not always be the case, so it is essential that this information is decided in a signed writing.
When determining the deliverables an artist will provide, one important consideration for a brand is category exclusivity. This enables the sponsoring company to ensure that another competitor’s brand is not also displayed, used, or an additional sponsor of the artist. Generally, a musician can and will only have one endorsement deal for each type of product. For example this means that the artist only has one non-alcoholic beverage, one alcoholic beverage, one clothing line, and one instrument sponsor. Since the actual language utilized determines the extent and scope of the brand’s exclusivity, a musician should aim to tailor the language to be as narrow as possible to not prevent them from working with additional brands. For instance, an energy drink, such as Red Bull, could be seen as different from a non-alcoholic beverage, such as Pepsi, which could be categorized as (a juice or) soda. In addition, one brand could be your band’s official guitar while another company could be the band’s official drum provider. Thus, the actual language included is essential and any agreement should be drafted with that in mind.
Below are sample provisions listing potential artist deliverables to a brand as well as language granting the company category exclusivity.
1.1 – COMPANY desires ARTIST to publicize and where possible, mention COMPANY in advertising, books, promotional materials and products in connection with ARTIST’s work. From the commencement of the Agreement through the end of the Term, ARTIST grants to COMPANY a limited license during the Term to: (a) advertise and promote the fact that COMPANY is an “official guitar sponsor of ARTIST,” (b) use, reproduce and display the ARTIST’s likeness, image, and/or name in connection with advertising and promotion of COMPANY’s goods, and (c) promote COMPANY’s sponsorship, subject to the terms and conditions of use set forth herein.
1.2 – ARTIST agrees to use best efforts to promote COMPANY in interviews, articles, social media outlets and will notify COMPANY of any interviews and articles and expected dates of publication.
1.3 – ARTIST agrees to credit “COMPANY’s GUITAR” in any C.D. liner notes produced during the Term of this Agreement.
1.4 – ARTIST will arrange to add ARTIST’s endorsement of COMPANY and COMPANY’s logo to the ARTIST’s website and include a link to COMPANY’s website (www.sponsorbrand.com). ARTIST will also include COMPANY’s logo on ARTIST’s social media platforms, including but not limited to ARTIST’s Facebook, Instagram, Twitter and/or Soundcloud.
1.5 – ARTIST shall include the COMPANY’s trademarks and logos as designated by COMPANY and/or tag line or slogan approved by COMPANY in all advertising, publicity and promotion of the ARTIST (including, without limitation, any and all internet advertising) in a position and size pre-approved by COMPANY, and in prominence, position and size pre-approved by COMPANY for the duration of the Term of the Agreement.
1.6 – ARTIST agrees to display the COMPANY’s brand name on banners at any live concerts, appearances and/or events for the duration of the Term. COMPANY will provide this banner and any and all other COMPANY “branded” promotional materials, if necessary and required by Company, at COMPANY’s sole cost.
1.7 – ARTIST agrees to hold at least one (1) free product giveaway of COMPANY’s GUITAR during a live concert and/or event during the Term. Said GUITAR will be provided to ARTIST at COMPANY’s sole cost.
1.8 – ARTIST shall provide space in front of each venue during a live concert and/or event during the Term for COMPANY to park a “COMPANY” branded vehicle, at Company’s sole cost.
1.9 – COMPANY shall pay ARTIST a one-time fee of ten thousand ($10,000.00) Dollars for ARTIST’s obligations hereunder. In addition, COMPANY agrees to offer ARTIST a fifty-percent (50%) discount from any listed retail price on all COMPANY’s items.
1.10 – COMPANY, at its sole cost, may periodically send ARTIST promotional material such as T-Shirts, stickers, guitar picks, etc. as well as free product samples of new items in the COMPANY’s product lines. During the Term, ARTIST shall make a minimum of one (1) social media post containing a photograph of the received promotional materials on all of its Social Media platforms including but not limited to ARTIST’s Facebook, Instagram, Twitter and/or Soundcloud, within three (3) days of receipt of said materials from COMPANY.
1.11 – COMPANY, at its sole cost, may periodically send ARTIST free product samples of new items that have come into their product line for comment and review by ARTIST. Said comments and reviews may be utilized by COMPANY in any and all printed and/or digital advertisement publicly attributing said comments and/or reviews to ARTIST for the duration of the Term.
1.12 – ARTIST hereby agrees that COMPANY shall own the sole and exclusive sponsorship rights in the category of “Guitar Products” (including but not limited to guitars) for the Term and that “Guitar” shall be the “Official Guitar” used during the Term.
1.13 – COMPANY shall have the right to develop, implement and manage in-market and national advertising and publicity and promotional campaigns to promote the sponsorship with ARTIST across various media, subject to ARTIST’s prior written approval of any and all printed and/or digital promotional campaign materials, including but not limited to any promotional flyers or advertisements for the duration of the Term.
As discussed above, in addition to the unique deliverables an artist owes, the length of the term of the sponsorship agreement is also very important. In particular, the “term” or duration of the agreement is essential to determine in advance. This is true especially if the sponsorship is exclusive for a certain category. Typically, a shorter time period favors an artist as it provides them with the opportunity to explore other brand sponsors, including a potential competitor. Conversely, a brand aims for a longer period in an effort to lock the musician in and prevent them from using or promoting a competitor’s item. It is also prudent for a brand to have an “option” to extend the sponsorship for additional time.
Below are provisions looking at the term of the agreements and exploring an additional option period that may exist.
TERM – 1.1 – The Term of this Agreement shall begin on the date hereof and shall continue until the earlier of: (i) twelve months or (ii) termination pursuant to Sections 1.2 and 1.3 hereof.
1.2 – This Agreement will automatically renew for an additional one (1) year period unless otherwise terminated by either party upon written notice given to the other party at least thirty (30) days prior to the expiration of the original Term.
1.3 – Either party may terminate this Agreement upon thirty (30) days’ written notice to the other, in the event the other party breaches a material term of this Agreement and fails to cure such breach within the thirty (30) day period.
Additionally, a company may aim to include non-competition provisions in an effort to prevent the artist from working with a competitor for a specified period of time after the expiration or termination of their sponsorship agreement. Such example language is displayed below.
During the Term hereof and for a period of three (3) months after the expiration of this Agreement or the earlier termination of this Agreement by COMPANY, the ARTIST agrees that it shall not directly or indirectly perform the same and/or similar “deliverables” and/or work on behalf of any other company involved in distribution, marketing and/or promotion of the same or substantially similar product (GUITAR) as that sold, marketed and/or promoted by COMPANY throughout North America and Europe.
Another important matter that should be addressed and memorialized in a written agreement are the brand’s right to utilize the celebrity’s image and name in association with its product. This includes during the sponsorship term as well as how matters would proceed after the expiration of an existing endorsement. Generally, a brand owner prefers for its rights to be wide with minimal requirements and restrictions on them; conversely, a musician typically wishes to maintain control over the use of his image and name, so an agreement on these points is important.
Below is an example of a clause providing a sponsoring brand with the right to utilize an artist’s name and image during the sponsorship and with the company’s right terminating upon the expiration of the term.
COMPANY shall have the non-exclusive right to utilize ARTIST’s name, likeness and biography for no further payment, in any and all media now known or hereafter invented, for the duration of the Term. Upon expiration or termination of this Agreement, COMPANY shall immediately cease any and all uses of ARTIST’s name, likeness and/or biography as well as any statements of association with ARTIST.
In addition to an influencer’s deliverables on behalf of a brand and the brand’s category exclusivity, provisions relating to the potential early termination of the agreement should also be negotiated. In particular, most sponsorship agreements have a “harmful behavior” or “morals clause.” This permits a brand to immediately terminate an existing endorsement arrangement with an individual who “engages in illegal, indecent, immoral, harmful or scandalous behavior or activities.” Such a provision is often used to protect the image and reputation of the company; and enables one party to unilaterally terminate the contract if the other party engages in conduct that could have some type of negative impact upon the particular company or brand’s public reputation. In addition, many celebrities are now negotiating “reverse morals clause.” These clauses provide the musician with the right to terminate a sponsorship agreement if the brand behaves in similarly brand “damaging” way. This is meant to protect the musician’s reputation from association with a disgraced company or brand. A sample of such a clause is depicted below.
Harmful Behavior/Morals Clause – Either Party shall have the right to immediately terminate this Agreement in the event that the other Party, in such Party’s reasonable discretion, engages in illegal, indecent, immoral, harmful or scandalous behavior that brings the other party into public hatred, public disrepute, contempt, scorn, or ridicule, or that will tend to shock, insult or offend the community or public morals or decency and that may, directly or indirectly damage, such Party’s reputation or goodwill or if such party commits an offense involving moral turpitude under Federal, state or local laws or ordinances, or otherwise violates any applicable rules or regulations. In addition, ARTIST shall not engage in any act or conduct and/or make any derogatory statements which denigrate the COMPANY and/or its brand.
As we have discussed, there are many important matters related to a brand’s sponsorship of a musician. These include the particular “deliverables” or obligations that the musician owes to the brand as well as the compensation due to the artist for performing its duties on behalf of the sponsor. Category exclusivity and non-compete provision scopes are also important issues to be aware of. It is clear that as the music industry continues to shift toward a greater reliance and larger portion of an artist’s income will be generated from brand affiliations. This makes it more pressing to properly agree on the terms of these relationships. Memorializing the sponsorship terms in writing is the best way to ensure all parties are on the same page and receive the protections that they desire.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted. Some of the clauses have been condensed and/or edited for content purposes, so none of these clauses should be used verbatim nor do they act as any form of legal advice or counseling.
© 2018 The Jacobson Firm, P.C