The following is an OPINION piece.
Business negotiations can be stressful and hazardous. Many factors can influence the outcome: the status and notoriety of each Party; their history with one another; the history their reps have with one another; the amount of time allotted; the number of decision-making tiers; everyone’s temperament and (im)patience; their financial resources and priorities, etc.
Negotiating generally involves balance and compromise. Ideally, the outcome is a win-win for everyone – if not, the losing Party had rep who was too distracted by beating their score on WordBlitz, or the winning Party had no real intention of negotiating.
Obviously, not all battles can be won. You must enter negotiations with realistic expectations. An artist with no commercial history, nor concrete experience in the industry, can hardly expect a record label to advance them the funds they need to buy the loft of their dreams.
That said, artists have a right to demand that the other Party consider their requests instead of rejecting every one of them under baseless, robotic, and irrelevant pretenses.
Of the truly lowest of low pretenses, in my opinion, is this: this is our model and we won’t change it.
— Okay, but could you at least explain why?
Below is a list of the three (worst) arguments I hear on a regular basis. If you encounter them, I strongly encourage that you (i) tread carefully with the proposed contract, (ii) avoid using it; (iii) always question it.
* For the sake of clarity, I will be continuing with the example an artist negotiating a record deal. ** I do however encounter these types of arguments in all sorts of negotiations.
1. It’s our model – it has always been this way and always will.
The Queen of them all.
- This type of argument has no real basis in reality, except that the person using it is making no effort to find a compromise, or worse, to understand the particulars of the situation.
- Chances are that this model was written more than a decade ago, in a completely different industry and commercial mindset, and is partially outdated and out of step with contemporary usage.
- A model is precisely that; a model – it is made to be used as a base and adjusted to the context.
I find this argument even more worrisome as it implies that the label is behind the times: how can we expect it to be innovative, creative and flexible when it negotiates its most foundational contract with an antiquated approach?
2. It’s our model – all our other artists have the same conditions.
How honourable. But how are third party negotiations relevant to these circumstances? Every negotiation is different. Were the other artists (well) represented? Did they have the same negotiating power? Was their context similar?
If the concern is wanting to avoid creating a precedent, this can addressed by subjecting the parties to a firm and clear confidentiality clause.
Lowest of the low: citing an artist of greater notoriety to justify a refusal. “Even X does not have these conditions.” (!)
3. It’s our model – we can’t put it in writing, but it’s what we do in practice
Then what is the point of a negotiating a contract?
The main purpose of a contract is to formalize an agreement and avoid as many grey areas as possible. Remember, the contract could potentially later be assigned, exploited by new parties and interpreted in a thousand different ways: why not take advantage of the time and money currently being spent during the negotiation phase to put our best foot forward?
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The fact of the matter is that negotiation require time, money and emotion; three things that are usually sensitive topics for many artists. Again, not every negotiation can lead to full satisfaction; but there should at least be a minimum of respect and transparency!
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Translated by Emily Alberton