Balancing scales in contracts and agreements for creatives- A Mohbad Memoriam

By Omoruyi Edoigiawerie, Esq

The world is shaken by the death of Oladimeji Aloba, also known as Mohbad, and while questions abound as to the circumstances surrounding his death, there is a consensus that he grappled with the fact that he was unable to fully benefit from and exploit his intellectual property.

Today our playlists are booming with all his songs, from Ask About Me to KPK, Peace, Pariwo, Account Balance, and a host of others. His songs are not only topping the charts, but they also show without any shadow of a doubt, how talented and ornately blessed Mohbad was. There is no doubt that the creative entertainment world is poorer without him.

In the dynamic world of creativity, where ideas are transformed into music, art, design, literature, and innovation, contracts and agreements play a pivotal role. So, it’s only expedient that we take a cursory look at the principal tools that regulate the professional life and relationship of creatives – Agreements.  

This legal document is meant to protect the rights and interests of both creatives and their clients or collaborators. However, the scales of power in contract negotiations often tip unequally, with creatives sometimes finding themselves at a disadvantage. I will try to delve into the intricacies of contracts and agreements in the creative industry, explore the challenges creatives face, and discuss strategies for achieving a more balanced and fair approach.

*The creative industry: A complex landscape

Creativity is an elusive force, a wellspring of ideas, emotions, and expressions. It is the driving force behind art, music, literature, design, and countless other forms of human expression. Creatives invest their hearts and minds in their work, and their creative process is deeply personal and often guided by intuition, inspiration, and emotion.

So, who are creatives, the term “creatives” encompasses a broad spectrum of professionals, including artists, writers, designers, photographers, musicians, filmmakers, and innovators. What unites them is their ability to transform ideas into valuable and often emotionally resonant products or experiences.

The creative process is not linear; it ebbs and flows, responding to the artist’s state of mind, life experiences, and external influences. As such, it can be challenging to fit the artistic process neatly into contractual frameworks, which are inherently structured, legalistic, and often rigid.

*The contractual dilemma

Contracts and agreements are essential in the creative world. They serve as the foundation for collaboration, protection of intellectual property, and defining the rights and responsibilities of all parties involved. However, the process of negotiating, drafting, and adhering to contracts can pose a dilemma for creatives. Major considerations account for this challenge:

1.           Power imbalance

Established clients or companies often have greater bargaining power, dictating contract terms that may not align with the creative’s best interests. This power dynamic can stifle creativity and limit financial gains for creatives.

2.           Lopsidedness of information

Creatives lack legal expertise, leading to an information gap that favors clients or collaborators who have access to legal counsel. This can result in creatives accepting unfavorable terms.

3.           The fear of losing out (The golden opportunity syndrome)

Creatives often fear that asserting their rights or negotiating vigorously will lead to missed opportunities, damaging relationships with clients or collaborators

4.           Exploitative practices

Some contracts may exploit creatives by demanding excessive work for minimal pay, extended copyright ownership, or unreasonable non-compete clauses.

5.           Ambiguity and vagueness

Contracts in the creative industry can be notoriously vague, leading to misunderstandings or disputes. Lack of clarity about intellectual property rights, royalties, and project scope can cause issues down the line.

6.           Artistic freedom vs. commercial viability: Creatives may struggle to reconcile their artistic vision with commercial expectations outlined in contracts. Commercial viability is important for livelihood, but it can stifle artistic expression if not carefully balanced.

7.           Intellectual property rights: Defining ownership and usage rights is critical, but it can lead to conflicts when creative work evolves or branches into uncharted territories.

8.           Creative control/monopoly: Contracts may specify levels of creative control, which can oftentimes eventually clash with the artist’s desire for full autonomy.

*Navigating a balanced approach to creative contracts

As I often say, highlighting the problem is an incomplete route towards a resolution if no solution is offered. So, I will highlight a few simple solutions that will encourage a balanced approach to the creative contracts:

1.           Clear communication

Effective communication is the linchpin of balancing creativity and contracts. Artists and collaborators should openly discuss their expectations, concerns, and visions before drafting agreements.

2.           Bespoke contracts

Tailor contracts to fit the specific project and the unique needs of the creatives involved. A one-size-fits-all approach rarely works in the creative world. It is imperative that talent management companies and record labels, stop using templates that suit them but rather prepare intentional contracts for each creative they seek to manage.

3.           Define boundaries

Delineate boundaries regarding artistic freedom, intellectual property, and creative control. Address potential conflicts upfront by including balanced clauses on how these conflicts can be resolved by the parties.

4.           Flexibility clauses

Include flexibility clauses that allow for adjustments in case the creative process takes unexpected turns.

5.           Legal Counsel

Seek legal advice from professionals experienced in the creative industry. They can help navigate complex contractual language and protect the artist’s interests. I will advise every creative to have a lawyer on retainer from the onset. Your present status is immaterial, what matters is your focus and growth projection.

6.           Royalties and licensing

Creatives must now seriously take into cognizance alternative compensation structures, such as royalties or licensing arrangements, to align the proposed financial incentives with artistic success.

7.           Termination provisions

Inclusion of clear unambiguous termination provisions that outline circumstances under which the contract can be ended by either party, providing an exit strategy if creative differences become insurmountable.

*Uyilaw’s advice to budding creatives

For budding creatives, here are three things they must keep in mind as they start their creative journey:

1.           Educate yourself

You should take the time to educate yourself about the legal aspects of your chosen field. This includes understanding copyright, intellectual property, and contract law basics.

2.           Seek legal counsel

Flowing from the first advice, seeking legal counsel, engaging an attorney who specializes in the creative industry can level the playing field for you. Legal professionals will help you review contracts, negotiate favorable agreements on your behalf, and provide valuable guidance and when it gets tough, they will help you tackle the challenges.

3.           Clear communication

Open and honest communication with collaborators/talent managers is essential. Ensure that everything is defined, from the project scope, deadlines, and deliverables to your mutual expectations from the outset to avoid misunderstanding.

*Conclusion

Contracts and agreements are the foundation of creative collaborations, providing clarity, security, and fairness for all parties involved. However, the creative industry has long grappled with imbalances in contract negotiations.

Balancing the scales in contracts and agreements for creatives is an intricate dance. It requires a deep understanding of the creative process, a willingness to communicate openly, and a commitment to upholding artistic integrity. Creatives and their collaborators/talent managers/ record labels should remember that, ultimately, a well-negotiated contract should enable, rather than hinder, the creative journey.

Ultimately, achieving balanced contracts is not just about securing a better deal for creatives, it’s about preserving the integrity of the creative process and ensuring that artists can continue to enrich our world with their unique talents and innovations.

May the soul of Oladimeji Aloba (Mohbad) Rest in Peace and may we find enduring justice not just for him, but for all those whose intellectual property continues to be exploited and plundered. Amen.

Omoruyi Edoigiawerie is the Founder and Lead Partner at Edoigiawerie & Company LP, a full-service law firm offering bespoke legal services with a focus on startups, established businesses, and upscale private clients in Nigeria.  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. His firm can be reached by email at hello@uyilaw.com