ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Friday, March 11, 2016

Who to “Look to” for Royalty Payments

If a recording artist enters into a personal services agreement with a record company that, among other things, contains a promise that the artist will “look solely to [a corporate version of the music band] for the payment of my fees and/or royalties … and will not assert any claim in this regard against [the record company],” has the artist then waived his/her right to sue under the contract if the band’s corporated version does not do so? Probably not, according to the Ninth Circuit Court of Appeals. At least this is a factual inquiry that cannot be resolved on a 12(b)(6) motion. The case is Dale Bozzio v. EMI Group Limited, et al. 41H230CGE9L

In the 1980s, Dale Bozzio was the frontwoman of the band Missing Persons. The band incorporated as “Missing Persons, Inc.,” as is normal in the entertainment industry, so that any contracts with entertainment companies would be signed by one legal entity and not all the individual band members. The corporation, however, was suspended under California law. Bozzio recently sued Capital Records for royalties that she believed were still owed to her notwithstanding the suspension issue. Capitol Records argued that Bozzio waived any right to sue Capitol – including the right to sue as a third-party beneficiary – by signing the “look solely to” artist declaration mentioned above. This in spite of other contract clauses stating, for example, that if the band corporation should case to exist, the individual artists would assume the corporation’s contractual obligations. The contract also stated that Capitol Records had agreed to “pay Artist all royalties and advances required to be paid….” Bozzio argued that the “look solely to” clause was intended to prohibit an artist from asserting a claim against Capital Records only in cases of a dispute among individual band members over the internal allocation and distribution of royalties that have already been paid for by the record label.”

The court found that nothing in the record foreclosed this latter argument and that the issue should be resolved by a trier of facts. Under California law, third-party beneficiaries to a contract “made expressly for the benefit of a third party, may be enforced by him[/her] at any time before the parties thereto rescinded it.” This quite clearly seems to cover Bozzio’s case. The argument that artists should look to their own companies for royalty payments from the entertainment companies with which they have “signed” is not only highly circular, it also flies in the face of logic. This again goes to show the craftiness of litigating attorneys and their client’s willingness to try almost anything to win a case whether warranted or not.

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