Capitol Records and Coldplay as Mephistopheles

(photo from Flickr user maubrowncow)

(Update: See post here and gripping conclusion here)

“I get so tired of listening to the way everyone treats music. I keep feeling they’re selling out.”
~Johnny Mercer, songwriter, on his founding of Capitol records

And you thought that we were faking
That we were all just money making
You do not believe we’re for real
Or you would lose your cheap appeal?
~Johnny Rotten, songwriter, on Capitol’s owner, EMI

As I mentioned in my previous post, I recently touched base with old friend Brian Bergeron, who brought this story to my attention via the blog post of fellow artist The Everyday Visuals. The story also made grumblings on LemmingTrail today.

Capitol Records has decided to hold a contest to select openers for Coldplay’s latest tour for shows in San Jose, Philadelphia, Chicago, Hartford, DC, and Boston. Bands may submit a video to YouTube of their best song, and the winner gets a chance to take the stage before the headliner and play to no-doubt sold out audiences of tens of thousands, assuredly launching them into superstardom and earning the love and respect of one of the largest rock bands of our time.

Below the cut is the terms and services of this agreement, outlining the very worst contest rules and conditions I have ever seen. Seriously, Faust would be loving this.

The German legend of Faust has always been an easy crossover to American blues, folk and rock music. The idea of making a pact with Lucifer to become the greatest and strongest musician alive has been popular legend since Routes 61 and 49 crossed in Clarksdale Mississippi. The harsh realities of the music industry has made skeptics of us all, and to some extent we should be grateful. Bands are more cautious about signing into pacts for fame, be it with Mephistopheles or Warner. Young adults such as I have been educated in how the industry tries to get to you, and where you can push back. While pacts in blood have been replaced with controlled composition clauses and cross-collateralization, fewer Fausts live among us than did in the early days of Rock ‘N’ Roll.

Still, seems the devils keep coming, and this year’s model bears the name Capitol Records.

What seems like an innocent enough contest bears a burden in the fine print worthy of any deal Robert Johnson may or may not have signed. Here’s what you give up in exchange for opening for Coldplay:

• You are allowed one submission, and “inappropriate submissions” as deemed by Live Nation (you didn’t think a story this bad wouldn’t mention these guys, right?) are immediately disqualified. No user checks, no superseded votes – just the sole discretion of a company. And if there’s anything the history of popular music in the US should illustrate, it’s that companies almost never get it right on the first go-round (think of the Decca audition of the Beatles). But that’s just bad for the vitality of quality rock music – that says nothing of the cruelty of the contest, and is largely understandable from the angle of Capitol.
• You grant Capitol unlimited, unrestricted, royalty-free license to use your submission (and your name, address, and likeness) in any way they deem fit. Naturally, Capitol doesn’t want the trouble of having to find you guys to pay royalties when using your song and likeness to promote the contest or the tour, but nothing here prevents Capitol from doing other things, such as sell all of the contest submissions in a CD and give you nothing, or license your song for a car commercial and pocket the profits.
• The next sentence after you give away your hit song? Capitol can change it. Directly from the terms and conditions, Capitol may, “in Capitol’s sole discretion, may edit, adapt, composite, mix, remix, morph, scan, duplicate, alter and/or otherwise modify and commercially exploit your submission, in whole or in part, without any restrictions as to changes.” Your song becomes not your song. You no longer have input into how it is used. You have lost all control over your work. Now bear in mind the previous point about unlimited use. They can (and no doubt will) remix, sample, modify, alter and change any element of the song that they deem appropriate (or test market as such).

And then we get to the really meaty stuff. Capitol reserves the right, upon entry of the contest, to hold the “irrevocable and exclusive option (the ‘Recording Option’) to enter into an agreement with you (‘Recording Agreement’) that will provide for an option on Capitol’s part to record demo recordings with you and/or enter into a long-term exclusive artist agreement with you.  The Recording Option may be exercised by Capitol giving you written notice at any time before the end of the Option Exercise Period.” The Option Exercise Period is 60 days after the end of the contest. For 60 days, Capitol holds the right to enter you into a recording agreement (and, by extension, you cannot enter a deal with another company for 60 days). By entering into the contest, you agree to the terms. And what are the terms? Let’s take a peek:

• You get a fixed budget of either $5,000 (for a demo) or $100,000 (for an album), and are subject to “certain royalty provisions and other terms and conditions commensurate with those contained in Capitol’s standard Recording Agreement for new artists.” These terms will no doubt include recouping clauses, controlled composition clauses, and other forms of old-guard provisions engineered to screw with artists.
• “As part of the Recording Agreement you must agree to and must irrevocably assign and transfer to Capitol, all rights, title, and interest in your submission, including without limitation, all sound recording copyrights therein, pursuant to any demo recording contract as executed between or among the parties, and to forever waive and agree never to assert any and all so-called moral rights they may have or be entitled to in respect of your submission.” I wonder if Snidely Whiplash is their contract attorney. The moral rights part is especially interesting, as by nature they are inalienable, so Capitol could never force you to waive them.
• They don’t even take care of you while you’re out there recording. Once again from the terms and conditions: “Travel to production studio facilities, including all travel expenses, are your sole responsibility, and each of its respective members, and will not be reimbursed to you under any circumstances by Capitol.” Now, I will be one of the first to criticize the “old model” of record contracts, with artists wasting millions in days of gluttonous indulgence forever recouped afterward. But these artists are counting on music for their bread and butter. It’s their job. Travel for work is traditionally covered by work in jobs, especially jobs that have employers making millions of dollars a year.

Oh yes, and what happens if you do in fact shoot the moon and win that opening slot?

The winning band will be given the opportunity to play for up to 20 minutes in the opening slot for the Coldplay concert in their market.  The winning band will also be awarded $2,000 and receive ten (10) tickets to the Coldplay concert in their market for family and friends, to be divided equally among the members of the band.  The winning band is solely responsible for transportation to the concert and must provide their own instruments (24 channel inputs maximum).  Material to be performed by the winning band and all other show elements are subject to review and approval by [Live Nation].

They review and approve your performance. You are limited to 24 Channel Inputs (on boards which can hold easily double that without interfering with Coldplay’s setup). You are not even given the courtesy of a limousine ride. You are given a fee usually reserved for mid-range wedding bands. You play for 20 minutes, with no guarantee as to where physically or on the time line the band gets to play (and with 1-2 other openers, you can be sure it will be within minutes of opening the doors, and long before anyone makes it through security). Oh, and I hope each member of the band wasn’t planning on inviting both their parents and a boy- or girlfriend, as those 10 tickets will go by quick.

All contractual analysis aside, Christopher Pappas of The Everyday Visuals may put it better, playing out the scenario of a winning band a la “Good Will Hunting”:

After they make their record (with the song that won the contest as the new single) the label, in a ’surprise’ move, decides to shelve the record. I mean, did the label ever really intend to release it anyway? Not only that, but they own the rights to the songs – yes, even that song, the hit single, the one that won them the contest in the first place. Now the label sells the song to GM, and between war profiteering and human rights violations, they find time to slip it into a commercial for a new series on NBC. Huge licensing and sync fees abound – all going to the label, with the band sitting at home with nothing left but the phrase: “Hey, did you know I wrote that tune?” (A party conversation starter, at best).

Now, let’s just imagine this song was called “Yellow”.

This is a foul example of how bad our industry has become. This contest disguising as pro-artist is the antithesis. I call shame onto Coldplay and Boston’s WFNX for associating themselves with such a backhanded contest – this Devil’s bargain of a promotion goes far beyond the normal corporate buzz shill; it’s downright evil. I honestly expected better of a station like WFNX. I sincerely hope Capitol records never finds the gall to claim they are “supportive” or “nurturing” of artists ever again. Any thread of decency the late, great Johnny Mercer had when he started the company is gone by the decades of greed and corruption best captured by Johnny Rotten. I strongly advise any self-respecting artist to never enter into a contest like this. I fear some good band out there won’t read the fine print and lose all the rights to their material to a company that clearly is only interested in the business side of music business.