“breaking up is hard to do”: conceptualizing the artist ... · pole, josh graber, and kate...

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“BREAKING UP IS HARD TO DO”:CONCEPTUALIZING THE ARTIST-MANAGER RELATIONSHIP AS AMARRIAGE FOR PURPOSES OF

ALTERNATIVE DISPUTE RESOLUTION

Gillian Sloane*

I. INTRODUCTION

The people who I grew up making music with, we’ve all becomesuccessful in different ways. My manager supported me since Iwas 16 and believed in me as a musician. He’s been there sinceDay 1, and there’s so much to be said about doing somethingwith people that you love.1

If you want to make it in the music industry, industry profes-sionals will tell you “it’s not what you know, but who you know!”2

When it comes to success or failure for an artist, the most impor-tant person for them is their manager.3 In the music industry, suc-cess is built on lasting relationships and out of all the relationshipsan artist will develop during their career, the relationship they havewith their manager is one of the most crucial to making it big.4 It isthe manager’s job to shape the artist’s career and ensure the artistachieves his or her maximum potential.5 On its face, the relation-ship between artist and manager is considered a business partner-ship—“[a]n association between individuals entered into for a

* J.D. Candidate, 2020, Benjamin N. Cardozo School of Law; B.S., 2016, Syracuse University.I would like to thank Professor Marc Ostrow for his invaluable guidance, insightful comments,and steadfast assistance during the development of this Note. I am extremely grateful to theeditors of the Cardozo Journal of Conflict Resolution for their support, in particular John Wal-pole, Josh Graber, and Kate Wollman. Finally, I would like to thank my family and friends, whoprovided unwavering encouragement and support throughout this process—especially mymother, Diana Sloane, for being my mentor, my confidant, and my biggest supporter.

1 Skrillex, Skrillex Quotes, IMDB (last visited Feb. 8, 2019, 3:43 PM), https://www.imdb.com/name/nm4776432/bio?ref_=nm_dyk_qt_sm#quotes.

2 RUSS HEPWORTH-SAWYER & CRAIG GOLDING, WHAT IS MUSIC PRODUCTION? 64 (1st ed.2011).

3 XAVIER M. FRASCOGNA, JR. & H. LEE HETHERINGTON, THIS BUSINESS OF ARTIST MAN-

AGEMENT 3 (4th ed. 2004).4 PETER M. THALL, WHAT THEY’LL NEVER TELL YOU ABOUT THE MUSIC BUSINESS 3 (3rd

ed. 2016).5 DONALD S. PASSMAN, ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS 28 (9th ed.

2015).

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726 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 21:725

commercial purpose and sometimes formalized with a legal con-tract or agreements.”6 However, the nature of the relationship andaffiliation between the parties strongly resembles a marriage7—a“social and legal contract between two individuals that unites theirlives legally, economically, and emotionally.”8

Artists and managers enter into a relationship with one an-other due to a shared goal. The trust and understanding instilled inthe relationship create a unique bond between the two parties; themanager has even been said to be “the single most important per-son in [an artist’s] professional life.”9 With nearly 50 percent ofmarriages in the United States ending in divorce or dissolution,10

commitment and devotion are sometimes more prominent betweenartists and managers than spouses. Elvis Presley was introduced tohis manager, Tom Parker, at age seventeen and their relationshiplasted until the singer’s death.11 Peter Grant managed LedZeppelin up until John Bonham’s death, at which point he retiredfrom the music industry completely.12 The band U2 basically con-siders their manager of over 40 years, Paul McGuinness, the band’sfifth member.13

Even the development of the artist-manager relationship isanalogous to that of a marital relationship. The parties are intro-duced through a mutual acquaintance that believes they’d be com-patible, or the parties meet naturally, and the relationship ensuesdue to the organic connection between them.14 Then the partiesbecome more familiar with other another to test their suitability aspartners.15 The commitment to one another comes only after the

6 Business Relationship, BUS. DICTIONARY, http://www.businessdictionary.com/definition/business-relationship.html (last visited Nov. 21, 2018).

7 This Note will consider and analyze the characteristics of relationships and marriage. Forpurposes of this analysis, and in consideration of the precedent set in United States v. Windsor,marriage is a universal right under applicable law and marriage of straight, lesbian, gay, bisexual,transgender, and queer individuals is recognized as equal.

8 Sheri Stritof, What is the Definition of Marriage?, SPRUCE, https://www.thespruce.com/def-inition-of-marriage-2303011 (last updated Nov. 18, 2019).

9 PASSMAN, supra note 5.10 Can You Tell When a Marriage Will End?, HG.ORG, https://www.hg.org/legal-articles/can-

you-tell-when-a-marriage-will-end-49403 (last visited Nov. 21, 2018).11 PAUL ALLEN, ARTIST MANAGEMENT FOR THE MUSIC BUSINESS 48 (3rd ed. 2015).12 Helienne Lindvall, Behind the Music: When Artists and Managers Fall Out, GUARDIAN

(Mar. 19, 2009, 1:08 PM), https://www.theguardian.com/music/musicblog/2009/mar/19/artist-man-ager-relationship.

13 Id.14 Kim Forrest, The Ultimate Relationship Timeline That Leads to Marriage, WEDDINGWIRE

(Oct. 25, 2018), https://www.weddingwire.com/wedding-ideas/relationship-timeline.15 Id.


2020] “BREAKING UP IS HARD TO DO” 727

parties have established that their long-term goals and objectivesalign.16 Once committed, each party takes on specific obligationsand authority for the betterment of the partnership.17 At thispoint, a couple would generally start thinking about marriage, thusentering into a legally binding contract with one another. It is ex-tremely uncommon for two people to marry immediately aftermeeting one another.18 This is because it leaves no time for theparties to consider the viability of the relationship before making alife-long commitment to one another—just ask Ariana Grande andPete Davidson.19

So why does a relationship that so closely resembles a mar-riage require a legally binding agreement before the essential as-pects of the relationship are even formed? The answer is because,in the music managerial business, that’s the industry norm. In or-der to achieve success in this everchanging industry, an artist typi-cally requires the assistance of a third party to help navigate theircareer and guide their talent.20 This is where the manager steps in.From the start, the artist and manager are faced with the challengeof conforming to an industry environment that does not acknowl-edge the personal nature of the artist-manager relationship—thiscreates a problem.

The problem is not that the artist-manager relationship is ahighly personal one. The problem is, that due to the present stateof the music industry and current legislation, the nature of the rela-tionship is given no weight when disputes between the parties oc-cur. The constraining designation of the artist-managerrelationship and ineffective legal remedies provided when disputesarise, negatively affect the viability of the relationship and essen-tially guarantee dissolution of the relationship.

This Note addresses that problem. Instituting different formsof alternative dispute resolution (“ADR”) processes, commonly

16 Theresa E. DiDonato, How Long Should You Date Before Getting Married?, PSYCHOL.TODAY (Oct. 26, 2017), https://www.psychologytoday.com/us/blog/meet-catch-and-keep/201710/how-long-should-you-date-getting-married.

17 Id.18 Nathan Yau, The Stages of Relationships, Distributed, FLOWINGDATA, https://flow-

ingdata.com/2019/03/26/relationship-stages/ (last visited Mar. 6, 2020).19 See Callie Ahlgrim, Here’s a Complete Timeline of Ariana Grande and Pete Davidson’s

Whirlwind Engagement and Sudden Split, INSIDER (Nov. 22, 2019, 12:56 PM), https://www.insider.com/ariana-grande-pete-davidson-relationship-timeline-2018-6 (Ariana Grande andPete Davidson began dating in May 2018 and got engaged just 24 days after initial reportsclaimed they were “casually dating.” The couple subsequently split less than five months aftertheir impulsive engagement.).

20 FRASCOGNA, JR. & HETHERINGTON, supra note 3, at 12.



applied in divorce and family law, at different stages of the artist-manager relationship could prove beneficial to the artist and man-ager, as well as the music industry at large. Substituting alternativemeasures in place of litigation provides the artist and manager witha more favorable opportunity to preserve the relationship.

Part II of this Note first illustrates the unique personal natureof the artist-manager relationship by examining the distinct charac-teristics and role of the personal manager and the formation of theartist-manager relationship. It then identifies the state and federalstatutory schemes governing artist representation that impact theartist-manager relationship, with special attention given to Califor-nia Labor Code § 1700(4), commonly referred to as the TalentAgencies Act, and N.Y. General Business Law § 171. Part III willdiscuss disputes and challenges that commonly arise between art-ists and managers throughout the relationship, and examine the ef-fect insufficient legislation and disregard for the personal nature ofthe relationship has on courts and the Labor Commission whenaddressing artists’ and managers’ claims. Part III then explainshow implementing methods of alternative dispute resolution couldincrease the longevity of artist-manager relationships and decreasethe number of disputes effectuating termination of the manage-ment agreement. Part IV presents alternative dispute resolutionmethods effectively implemented in the practice of family and do-mestic relations law, and proposes a new paradigm for resolvingartist-manager disputes out of court by implementing these meth-ods and providing greater consideration to the similarities betweenthe artist-manager relationship and marital relationship. Thisframework aims to construct a strong initial foundation for the art-ist-manager relationship in order to ensure fewer disputes arise andthat the parties are provided with the opportunity to maximize thelongevity of the relationship. Finally, Part V concludes with rec-ommendations and analysis.

II. BACKGROUND

A. The Artist-Manager Relationship

1. The Personal Manager

The manager is essentially the artist’s chief of staff, performingthe most influential role in planning, executing, and handling the



artist’s day-to-day responsibilities and overall career trajectory.21

The term ‘personal manager’ has been said to have “no distinctivedefinition of its own”22 because a manager can perform variousroles depending on the needs of an artist. While each managermay tailor their services to meet the specific needs of different cli-ents, every manager’s overarching purpose is to advance their cli-ent’s career by supporting the artist personally, guiding themcreatively, and representing them professionally within theindustry.23

The most effective managers look out for the artist’s best in-terests, have a strong belief in the artist’s potential, and a sophisti-cated understanding of how to cultivate the artist’s career.24 A keyfunction of a successful manager is bargaining power: the man-ager’s ability to negotiate with third parties and manipulate peoplein favor of the artist.25

However, the artist must be cautious of the manager’s bar-gaining power to ensure that manager manipulation does not occurwithin the artist-manager relationship.26 Manager manipulationcomes in many forms, but commonly occurs when the managertakes advantage of the artist’s lack of knowledge of the music in-dustry and uses it for personal gain by exploiting certain provisionsof the management agreement in his or her favor. Another impor-tant responsibility of the manager is to assist the artist in develop-ing his or her public image.27 Image is extremely important to theartist’s career path;28 thus, the manager must carefully help the art-ist develop this public persona to meet the artist’s target marketand create benchmark goals and strategies to achieve them.29

The prerequisites for becoming a manager do not include anMBA requirement, nor do they require experience in the musicindustry. Commitment to the artist-manager relationship and trust

21 THALL, supra note 4, at 66.22 Lloyd Zane Remick & David Spenser Eisen, The Personal Manager in the Entertainment

and Sports Industries, 3 U. MIAMI ENT. & SPORTS L. REV. 57, 57 (1986).23 Christiane Cargill Kinney, Managers, Agents & Attorneys, LEXISNEXIS (Nov. 15, 2015),

https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/archive/2015/11/25/managers-agents-amp-attorneys.aspx.

24 ALLEN, supra note 11, at 53.25 THALL, supra note 4, at 76 (“A good manager must have the ability to energetically and

effectively market [the artist] to the public and to the music industry. He or she must take aproactive role, particularly via-a-vis the record company, and must be tenacious.”).

26 See Part III for common artist and manager disputes.27 See THALL, supra note 4, at 66.28 Id.29 Id.



between the parties are the key elements to success.30 Lou Pearl-man, N’Sync’s manager, originally worked in the aviation indus-try.31 Joe Simpson was a psychologist, a Baptist minister, andtelevision producer before managing his daughter, Jessica Simp-son.32 Peter Grant, lifelong manager of Led Zeppelin, demon-strates that even a professional wrestler can transition intobecoming one of the most distinguished managers in musichistory.33

The artist-manager relationship is grounded in qualities typi-cally associated with a marital relationship rather than a businesspartnership.34 In a marriage, mutual growth and success are gener-ally not instantaneous and can take years to develop. Similarly, itmay take time for an artist to see substantial success in his or hercareer, and the manager must be committed enough to get to thatpoint.35 Spouses enter into a life-long relationship with one an-other where they implement goals and make decisions that foster astronger marriage.36 Artists and managers enter into a relationshipwhen they share similar beliefs and aspirations.37 This shared be-lief along with the parties’ commitment to the relationship is whythe artist-manager relationship is recognized as one of the strong-est bonds in the music business.38

2. When and How the Artist-Manager Relationship is Formed

Many artists believe having a manager is necessary from theget-go. They yearn to acquire a manager like one might covet adesigner accessory. Generally, the more established party is theparty being sought after.39 For example, if an esteemed artist isunrepresented, managers are likely to come flocking.40 On theother hand, and more commonly, if an artist is just starting theircareer and is undiscovered, it is likely that the artist is pursuing themanager.41 Moreover, the type of manager an artist is able to at-

30 ALLEN, supra note 11, at 59.31 Id. at 58.32 Id. at 54.33 Id. at 52.34 Lindvall, supra note 12. See also ALLEN, supra note 11, at 59.35 See FRASCOGNA, JR. & HETHERINGTON, supra note 3, at 11–12.36 Terry Gaspard, Enriching Your Marriage by Creating Shared Meaning, GOTTMAN INST.

(Nov. 30, 2017), https://www.gottman.com/blog/enriching-marriage-creating-shared-meaning/.37 ALLEN, supra note 11, at 52.38 Id. at 53.39 SHANE SIMPSON & JULES MUNRO, MUSIC BUSINESS 76 (4th ed. 2012).40 See id.41 PASSMAN, supra note 5, at 30.



tract is conditioned on the artist’s professional standing at the time.There are two identifiable types of managers in the industry: exper-ienced, connected managers and young inexperienced managers.An artist must balance the compromise of power and clout versusattention and enthusiasm.

It is unlikely for experienced managers to take on undiscov-ered artists as clients.42 Even if an influential manager were to re-present a new artist, the artist would most likely receive lesspersonal attention than the manager’s other more high-profile cli-ents.43 It is more common for artists to acquire young less exper-ienced managers.44 Many times, working with a young managerdoes not disadvantage the artist because what young managers lackin industry connections they typically make up for in drive anddedication. For example, the Rolling Stones signed with managerAndrew Loog Oldham when he was a mere nineteen years old.45

Oldham was business savvy and his influence over the band playedan integral role in their historic success.46

Moreover, young driven managers are more likely to seek outundiscovered talent. Manager Braden Merrick discovered TheKillers on a local music website that featured bands from the LasVegas area.47 According to Merrick, he drove 9 hours to Las Vegasto watch The Killers perform before a meagre crowd of twenty.48

Merrick was convinced the band could produce quality music andarranged for transportation, lodging, and recording studio time forthe band in San Francisco, all at no cost to them.49 The Killerswent on to receive a record deal with Island Def Jam MusicGroup50 and acquired earnings from royalties, touring, and mer-chandising sales that grossed in excess of $25 million.51

It is also common for developing artists to initially hire a closefriend or family member to manage them.52 Sometimes, this is be-

42 Id. at 40.43 Id.44 Id. at 41.45 ALLEN, supra note 11, at 57.46 Eamonn Forde, Oh Lorde, Pray Leaving Your Manager Wasn’t a Mistake, GUARDIAN

(May 19, 2015), https://www.theguardian.com/music/musicblog/2015/may/19/oh-lorde-pray-leav-ing-your-manager-wasnt-a-mistake.

47 Amended Complaint at 3, From the Future, LLC v. Flowers, No. CV-S-06-00203-RCJ (D.Nev. Apr. 20, 2009), 2009 WL 10709083.

48 Id.49 Id.50 Id. at 4.51 Id.52 PASSMAN, supra note 5, at 16.



cause the artist believes the people closest to them have their bestinterests in mind, while other times, it is simply due to the fact thatthe artist cannot afford to hire anyone else.53 While the artist’sfamily members and close friends are inevitably committed to theartist, some of these associations tend to increase the possibility ofconflicts arising.54 This holds especially true when the manager isthe artist’s parent.55 LeAnn Rimes, the renowned Americansinger, best known for her hit song, “How Do I Live,” was alleg-edly deceived by her father, who in his role as her manager, spent$7 million of her earnings on personal expenses.56

On the other hand, when the manager is a spouse, the resultsare surprisingly different and often very positive.57 Narvel Black-stock managed his wife, Reba McEntire’s music and acting careerseamlessly.58 Rene Angelil and Celine Dion wed 13 years afterthey started working together as artist and manager; he managedher career until his death in 2016.59 The marital relationship andartist-manager relationship are so close in form that the nature ofthe two relationships complement one another.60 Sharon Os-bourne, wife of Ozzy Osbourne, managed Ozzy’s career from thebeginning, representing him from his first solo album.61 SharonOsbourne shared her experience of managing her husband in aFortune magazine interview where she spoke about the philosophybehind her management experience, expressing that a key point ofsuccess is to “marry your job.”62

53 SIMPSON & MUNRO, supra note 39, at 74.54 ALLEN, supra note 11, at 49.55 Id.56 Destiny Lopez, 7 Celebs Whose Parents Decimated Their Fortunes, BUS. INSIDER (Apr. 2,

2014, 5:47 PM), https://www.businessinsider.com/7-celebs-whose-parents-decimated-their-for-tunes-2014-4.

57 ALLEN, supra note 11, at 50.58 Id.59 Alex Ungerman, Celine Dion & Rene Angelil’s Romance Remembered: A Timeline, ET

(Jan. 14, 2016), https://www.etonline.com/news/180062_celine_dion_rene_angelil_most_roman-tic_moments_a_timeline.

60 Larry King, I Was Never With Another Man: Celine Dion, YOUTUBE (Sept. 18, 2013),https://www.youtube.com/watch?v=rcaO73Gt_qQ (In a 2013 interview with Larry King, whenCeline Dion was asked about Rene Angelil as her husband and manager she stated, “I’m in lovewith him. . .he’s my manager, and especially now my husband. We were always together, hetaught me music and passion and how to bring the best of myself. I needed him all theseyears.”).

61 See ALLEN, supra note 11, at 60 (Ozzy Osbourne’s first solo album, “Blizzard of Ozz,”sold over 4 million albums in the United States alone.).

62 Id.



In a perfect world, once the artist and manager decided towork together, the manager stays with the artist throughout his orher entire career. In order for artists to ensure they are enteringinto a long term and meaningful relationship with someone whowill provide substantial support to their career, they must decidewhat he or she is looking for in a manager.63 Yet, even when bothparties take precautions, conflicts and disputes are bound to arise,and unfortunately, unlike dating, artists and managers typically donot have the luxury of being able to walk away from the relation-ship free of liability if disputes arise.

3. Managers are not Agents

As an artist develops their career, it is common for them toacquire a Pro Team.64 While most Pro Team members have strictlydefined roles, there is a fine line between the responsibilities of amanager and an agent within the music industry.65 Agents andmanagers provide the two services that most significantly affect theartist’s career: procuring employment opportunities for the artistand fostering and developing the artist’s career. Legislatures havemade a point to distinguish managers from agents by expressly reg-ulating agents under state statute but not managers.66

An agent, or “booking agent,” is responsible for seeking outemployment opportunities for the artist67 and negotiating the em-ployment contracts with the artist’s best interests in mind.68 Typi-cally, agents are paid for their services only if they secureemployment for the artist. Once an agent confirms a booking, they

63 See THALL, supra note 4, at 74 (Common manager functions an artist may seek include: aneducated manager with experience in live music and performance, a manager who studied musicand has the ability to support the curation of the artist’s work, an attentive and aggressive man-ager with a business background and a good understanding of numbers, or a creative managerwho thrives in the spotlight and knows how to handle public relations disasters—these are justsome common qualities of the countless managers in the music business).

64 See Kenny Kerner, Where Management Ends and Friendship Begins, TAXI TRANSMITTER

(July 2018), https://www.taxi.com/transmitter/0807/artist-manager-relationship.htm (An artist’sPro Team consists of the fundamental professionals an artist relies on throughout his or hercareer. Members of the Pro Team typically consist of the artist’s personal manager, businessmanager, agent, attorney, record label, and publisher.).

65 Jason Boyarski et al., The Fine Line: Legal Issues Surrounding the Procurement of Em-ployment by Agents and Managers, CARDOZO L., https://cardozo.yu.edu/fine-line-legal-issues-surrounding-procurement-employment-agents-and-managers#foot8 (last visited Oct. 15, 2018).

66 For further discussion on the relevant state statutes that regulate agents, see infra Part IISection 6.

67 See PASSMAN, supra note 5 (Common employment bookings include live performanceappearances, commercials, endorsements, tour sponsorship, television specials.).

68 M.WILLIAM KRASILOVSKY ET AL., THIS BUSINESS OF MUSIC 332 (10th ed. 2007).



collect the fee on behalf of the artist and deduct a portion for theirservices in the form of a commission percentage.69 Since an agent’scommission is based on the volume of employment they secure forthe artist, agents are highly incentivized to procure as much workas possible for the artist, quality aside. For this reason, agents arehighly regulated.

State agency law governs employment representation and pro-curement in the entertainment business, requiring individuals toobtain a license prior to engaging in employment activities.70 Inaddition to state regulations, agents are also regulated by unions.71

Moreover, agents are restricted from acting as the artist’s represen-tative and employer simultaneously,72 which means agents are pro-hibited from producing an artist’s work73 or participating in therecording and songwriting process of an artist’s music.

Conversely, the manager’s services generally fall outside thescope of state statute, and unlike agents, managers are not regu-lated by unions.74 However, state agency law still has a limitingeffect on managers by way of a licensing requirement. This re-quirement, which affords agents the authorization to procure, ne-gotiate, and book employment opportunities for artists,simultaneously precludes managers from doing so;75 that is, unlessthey obtain a license themselves—doing so would allow the man-ager to legally adopt the role of both manager and agent.76 Absent

69 Id. (Booking agents typically earn between 10 and 15 percent commission of the artistsgross earnings.).

70 See Talent Agencies Act, Cal. Lab. Code § 1700 (Deering 1986) (providing that any activ-ity related to procuring employment for an artist is subject to regulation and requires a license,even if no commission were ever received for that service); N.Y. Gen. Bus. Law § 171 (Consol.2012) (requiring that anyone acting as an agent or procuring employment must obtain a licenseunder the Employment Agency Law).

71 See KRASILOVSKY ET AL., supra note 68 (If an agent is represented by a union, the unionhas the authority to put restrictions on the agent, such as the agent can only use contracts ap-proved by the union. The union also has the ability to put a cap on how much an agent cancharge an artist for his services. The most common unions in the music business are AFM(American Federation of Musicians) and AFTRA (American Federation of Television and Ra-dio Artists)).

72 Id.73 David Zelenski, Talent Agents, Personal Managers, and Their Conflicts in the New

Hollywood, 76 SOUTHERN CAL. L. REV. 979, 980 (2003).74 See KRASILOVSKY ET AL., supra note 68.75 See Talent Agencies Act, Cal. Lab. Code § 1700 (West 1986); N.Y. Gen. Bus. Law § 171

(McKinney 2012).76 For further discussion on managers procuring employment and violating agency law, see

infra Part II Section 6 (Managers do not obtain a license, yet some still procure employment fortheir artists. Managers are precluded from procuring employment without a license, which in-cludes negotiating, booking, and providing employment services for the artist. Otherwise, the



a license, if a manager engages in any employment-related servicesfor the artist, they run the risk of violating state statute and poten-tially invalidating the management agreement.

Both the manager and agent play an integral role in planningand overseeing key aspects of the artists’ career.77 The primary dis-tinction between the role of the manager and the role of the agentis evident through their relationship with the artist. The artist-manager relationship is highly personal by nature, whereas the art-ist-agent relationship is substantive and profit oriented. Most art-ists do not solicit the services of an agent prior to obtaining amanager and signing the management agreement.78 The managergenerally assists the artist in seeking out an agent once the artistreaches a point in their career where an agent’s services becomenecessary.79 The in-depth and personal involvement a manager hasin the artist’s well-being and career causes the artist to rely on themanager in ways they do not with any other individual involved intheir career.80

4. The Manager’s Duties, Obligations & Authority

A manager’s duties are as broad as the definition of ‘personalmanager’ itself.81 The scope of these duties is a point of negotia-

manager is violating a statutory regulation. Although the legislature has tried to differentiateartists and managers through regulation, the commonality of this violation demonstrates thattheir efforts have not expunged the conflict. This violation is the central issue of most artist-manager disputes and is frequently asserted as a defense by an artist being sued by his or hermanager).

77 For example, if an artist is planning to go on tour, both the manager and the agent will beheld responsible to make it happen. It is the agent’s responsibility to negotiate and contract withthe venues where the artist will be performing. While the manager is accountable for everythingfrom tour scheduling, to booking hotels, to confirming equipment rentals, and designing tourmerchandise. Without the agent, the artist would have nowhere to perform. Whereas, withoutthe manager, the artist would essentially have no tour. See Edwin F. McPherson, The TalentAgencies Act: A Personal Managers Nightmare, L.A. LAW., May 1994, at 17.

78 Hal I. Gilenson, Badlands: Artist-Personal Manager Conflicts of Interest in the Music In-dustry, 9 CARDOZO ARTS & ENT. L. J. 501, 510 (1991).

79 Id.80 Id.81 THALL, supra note 4, at 66 (Common professional and advisory duties include: consulting

with a licensed booking agent to arrange the artist’s live performance bookings, including thesize and nature of the venues and the manner in which the live performance will be presented,working with the artist’s record company on approvals of album artwork, location of recording,establishing a recording budget, promotional appearances, press and publicity, assisting the art-ist’s attorney in negotiating record, publishing, and merchandising agreements, approving alloca-tions of monies expended on advertising the artist, and providing informed advice and counselon all decisions regarding the artists ultimate choices of producer, agent, accountant, bookingagent, video director, and attorney).



tion within the management agreement and an artist must decideif, and to what extent, they want the manager controlling aspects oftheir career. Beyond the duties and responsibilities prescribed tothe manager, the parties owe one another specific obligations.These obligations come about by virtue of the inherent attributesof the artist-manager relationship, and due to the similarities be-tween the characteristics of the artist-manager relationship and themarital relationship, there is a striking similarity between the obli-gations of these relationships.

In both relationships, the obligations and duties each partyowes to one another include mutual respect, confidential communi-cations, and acting in the best interest of the relationship as awhole. For spouses, these obligations are invoked under federaland state statute upon marriage.82 The obligations of the artist andmanager are instilled and legitimized through the managementagreement.83 Shared income is also an obligation that is central tothe artist-manager relationship. When an artist hires a manager,they are obliged to share a percentage of their gross earnings withthe manager.84 Similarly, in a marriage, combined earnings of in-come are generally shared by the spouses and all property accruedduring the marriage is considered marital property.85 Spouses havethe ability to authorize and empower their significant other to acton their behalf.86 Artists also have the power to authorize themanager to act on behalf of them; because an artist vests consider-able responsibility in the manager, it is not uncommon for the artistto also provide the manager with power of attorney.87

5. The Management Agreement

The management agreement is crucial in determining the typeof relationship that the manager and artist will have once the

82 What Rights and Obligations Arise Due to Marriage, FREE ADVICE LEGAL, https://family-law.freeadvice.com/family-law/marriage/marriage-obligations.htm (last updated Feb. 20, 2013).

83 SIMPSON & MUNRO, supra note 39, at 77.84 Id.85 Julia Kagan, Marital Property, INVESTOPEDIA, investopedia.com/terms/m/marital-

property.asp (last updated May 22, 2019).86 See Marriage Rights and Benefits, NOLO, https://www.nolo.com/legal-encyclopedia/mar-

riage-rights-benefits-30190.html (last visited Feb. 1, 2019) (In a marriage, spouses have the rightto authorize their significant other the authority: to open a joint bank account; to sue thirdparties for wrongful death or loss of a spouse; the ability to make medical decisions on behalf ofa disabled spouse; the power of attorney; and the joint parenting rights of stepchildren).

87 THALL, supra note 4, at 39.



agreement is signed.88 The agreement describes the expectationsand obligations of the artist and the manager, setting out the termsof the relationship and the rights of each party.89 Managementagreements are generally structured like business contracts and in-clude terms commonly found in partnership agreements such asterm, obligations of the parties, and commission, but also provi-sions not so common to business contracts, ones that are distinct tothe music industry.

An exclusivity provision can be found in almost every manage-ment agreement, which provides that the artist will acquire the ser-vices of no other manager and if the artist does, they must obtainthe manager’s express approval prior to obtaining the service.90

For managers, this is an important restriction within the agreement,as their commission depends on it. If an artist begins to gain noto-riety and is not restricted from working with other managers, theoriginal manager’s commission would quickly decline, and battlesover management territory would ensue. Conversely, the typicalmanagement agreement expressly states the manager may provideservices to multiple clients at one time; this is to provide managersthe ability to better control their costs across a greater incomestream, as it is unlikely managing one client will be economicallysustainable for the manager.91

Sunset Clauses are also common within management agree-ments, which allow managers to receive commissions earned butnot received prior to expiration or termination of the managementagreement. Also known as a phase out clause, this provision pro-vides managers the right to their justly earned commission basedon their services during the artist-manager relationship; theamount received decreases over time until the manager receivesthe full amount of income they are entitled to.92

Some managers might try to include a 360 provision, whichprovides the manager with a commission based on all of the artist’srevenue streams.93 The inclusion of a 360 provision would allow amanager to receive commission on revenues he or she normally

88 While standard form agreements are now the norm, some managers and artists used toagree through handshake deals. See SIMPSON & MUNRO; PASSMAN.

89 SIMPSON & MUNRO, supra note 39, at 77.90 Id.91 Id.92 KARASLOVISKY ET AL., supra note 68, at 335.93 Heather McDonald, How 360 Record Deals Work in the Music Industry, BALANCE CA-

REERS, https://www.thebalancecareers.com/how-360-deals-in-the-music-industry-work-2460343(last updated Aug. 18, 2019).



would not have, like endorsement deals, tour merchandise, andcommercial and digital sales.94

While all management agreements will generally include thesame provisions, that does not mean any two management agree-ments will produce the same relationship. The principles of con-tract law apply to management agreements, but the artist andmanager are held to no legal guidelines or parameters when nego-tiating the agreement.95 This lack of regulation is a blessing and acurse; it gives artists and mangers the freedom to adapt the agree-ment to the individual needs of the artist, but it also opens the doorfor the parties to negotiate unrestricted and potentially take advan-tage of one another.

6. Current Legislation Affecting the Artist-ManagerRelationship

There is no federal regulation of entertainment industry pro-fessionals nor any federal statutes that regulate their services. Al-though many music industry representatives have strictly definedroles, there exists no federal guidelines. Some states have recog-nized the hazard of the nonexistent federal regulation and havetaken a more active role in instituting state regulations that estab-lish role-specific rules which clarify and designate the professionalparameters of entertainment industry representatives. Moreover,many of the state regulations currently in place do not expresslyregulate managers, but they do constrain the scope of the man-ager’s services.

The California legislature governs the representation and em-ployment procurement of artists through the Talent Agencies Act(“TAA”).96 Both the TAA and its New York State counterpart,New York General Business Law Article 11 (“Article 11”)97 wereinstituted to protect artists from potential unethical actions by theirfellow industry representatives.98 The purpose of these state regu-lations is to protect artists interests by preventing improper personsfrom acting as agents and to enforce such requirements on individ-uals acting within the scope of such activity.99 These state regula-

94 Id.95 See infra Part II Section 7.96 See Talent Agencies Act, Cal. Lab. Code § 1700 (West 1986).97 See N.Y. Gen. Bus. Law, Article 11 (McKinney 1988).98 Such as: prohibiting business managers from receiving double commission, prohibiting

agents from providing artists with misleading or false information, or arranging unlawful em-ployment for minors. See Zelenski, supra note 73. See also ALLEN, supra note 11.

99 McPherson, supra note 77, at 17.



tions define the activities of a talent agent and stipulate that anindividual must obtain a license from the Labor Commission priorto performing any of these acts.100 By allowing only licensedagents to procure employment and by regulating their activities,the substantial distinction between agents and managers is clearlydiscernable.

This distinction is further delineated by the absence of any di-rect statutory, administrative, or licensing requirements clearly de-fining the role of, or regulating, managers.101 The TAA and Article11 have no statutory language including the term “personal man-ager.” Moreover, on their face, the laws would appear to addressmanagers only to the extent of requiring them to obtain an agencylicense if they wished to procure employment for their clients.While in fact, both the TAA and Article 11 actually incorporateprocurement exceptions which allow managers to avoid the licenserequirement and expand rather than constrain their activity.102

The TAA permits managers to procure recording contracts fortheir clients, stating, “The activities of procuring, offering, or prom-ising to procure recording contracts for an artist or artists shall notof itself subject a person or corporation to regulation and licensingunder this chapter.”103 This exception is said to be included be-cause not only does procuring recording contracts fall outside of anagent’s typical obligations, it helps the manager preserve one oftheir most important responsibilities in the role of developing long-term growth and essential connections for their client.104 Article 11is even more broad with its exception; it contains an incidental pro-curement exception.105 Under New York law, managers may en-gage in incidental employment procurement for their clients

100 The TAA defines ‘talent agent’ as “a person or corporation who engages in the occupationof procuring, offering, promising, or attempting to procure employment or engagements for anartist or artists.” The Act then states, “No person shall engage in or carry on the occupation of atalent agency without first procuring a license therefore from the Labor Commissioner.” SeeTalent Agencies Act, Cal. Lab. Code §. 1700.4(a) & 1700.5 (West 1989). According to Article 11,an ‘employment agency’ is, “any person who, for a fee, procures or attempts to procure: (1)employment or engagements for persons seeking employment or engagements, or (2) employeesfor employers seeking the services of employees.” Similar to the TAA, Art. 11 § 172 defines thelicense requirement as, “No person shall open, keep, maintain, own, operate or carry on anyemployment agency unless such person shall have first procured a license [issued by the commis-sioner of labor].”; See N.Y. Gen. Bus. Law § 171(2)(a) & 172 (McKinney 1988).

101 See Gilenson, supra note 78.102 See Talent Agencies Act, Cal. Lab. Code § 1700 (West 1986); N.Y. Gen. Bus. Law § 171

(McKinney 1988).103 Cal. Lab. Code § 1700.4(a).104 ALLEN, supra note 11, at 70.105 N.Y. Gen. Bus. Law § 171(8).



without obtaining a license. Under this exception, managers arepermitted to procure employment opportunities for their client solong as it is “ancillary to the primary task of managing the artist’scareer.”106

III. DISCUSSION

The artist-manager relationship is a unique one, as managerstailor their services to meet the specific needs of each client. Be-cause managers are more involved in their client’s life and careerthan any other Pro Team member, it makes sense that disputes be-tween artists and managers are just as personal in nature. The mu-tual dependency between artist and manager is a fundamentalaspect of the relationship as it is the essential element to the suc-cess of both parties. If the parties stop relying on one another, therelationship starts to disintegrate, and with current legal remediesproviding no support to salvage it, many times, it is beyond repairand separation is inevitable.

Given the nature of the music industry, it is common for artiststo engage in disputes with managers, record companies,107

agents,108 attorneys,109 and other industry professionals. However,

106 Roger Armbrust, In L.A. and N.Y., Managers May Lose Commissions, BACKSTAGE (Apr.6, 2005), https://www.backstage.com/magazine/article/laand-ny-managers-may-lose-commissions-26640/.

107 Like most business deals involving long-term contracts, provisions of the initial agreementare a common point of debate between artists and record companies. Points of conflict generallyinclude term, creative control, advances, and ownership. The majority of artist-label disputesarise from artist complaints where artist’s allege inequitable recording contracts. An artist’s at-torney will usually negotiate with the record company to make the provisions more favorable tothe artist; if the parties cannot compromise, disputes are generally litigated. See Kaleena Scam-man, ADR In the Music Industry: Tailoring Dispute Resolution to the Different Stages of theArtist-Label Relationship, 10 CARDOZO J. OF CONFLICT RESOL. 269, 273–78 (2008).

108 Similarly, within the initial record agreement, artists may encounter disputes regardinginitial deal provisions when signing with an agent. The most common terms artists can negotiatefor are term, scope, and certain commissions. Agents are regulated by the musician’s union,generally, the American Federation of Musicians. The AFM puts a cap on how much an agentcan charge commission and requires all union agents to use union approved contracts. See PASS-

MAN, supra note 5, at 57–60.109 The most common disputes between artists and attorneys arise from conflicts of interest.

Generally, conflicts of interest occur when one artist wants to sue another and they share thesame attorney or when two artists who share the same attorney initiate a business deal with oneanother. For the most part, these disputes are handled easily and without any detrimental effectto the attorney-client relationship. Typically, conflicts of interest issues are resolved withoutjudicial interference in one of three ways: (1) each client gets another attorney, (2) one of theclients hires another attorney to represent them for the conflicting deal, or (3) the clients work



artist-manager disputes are distinct for two reasons. First, thepoints of conflict that arise between artists and managers are inher-ently more personal.110 Second, the success of an artist’s career isdirectly correlated to his or her relationship with their manager.111

The demise of an artist-manager relationship is the mostequivalent portrayal of a music industry divorce. It involves theseparation of two parties that shared all personal and professionalaspects of their day-to-day life, a subsequent disentanglement ofassets, and the inevitable legal action initiated once the detachmentappears irreparable—but rather than custody and spousal supportbattles, the disputes concern profit sharing and illegal employmentprocurement.

In order to understand the challenges inherent to the artist-manager relationship and identify the prevalent issues and pointsof conflict between the parties, substantial consideration must begiven to the nature and progression of the artist-manager relation-ship. In light of these considerations, the artist-manager relation-ship will be discussed, bearing in mind its similarities to a maritalrelationship. For purposes of analysis, the artist-manager relation-ship will be divided into three distinct stages which mimic the mar-tial life cycle: (1) courtship/pre-management agreement: the periodof time before the parties fully commit to one another; (2) mar-riage/during the management agreement: the period of time duringwhich the parties are committed to one another and their mutualsuccess; and (3) divorce/dissolution of the artist-manager relation-ship: the period of time during which one or both parties under-mine their commitment to one another to the extent that therelationship appears unsalvageable. Discussing the disputes thatarise at each stage of the relationship provides insight into why theartist-manager relationship shares the same fundamental featuresas the marital relationship, yet artists and managers are less likelyto recover from a breach of commitment.112

out the agreement among themselves and the lawyer draws up the paperwork, representingneither client. See PASSMAN, supra note 5, at 55.

110 Caroline Antonacci, Mediation: A Solution For Resolving Interpersonal Conflict, 257 N.Y.L. J. (Mar. 20, 2017), https://www.jamsadr.com/pdf-viewer.aspx?pdf=/files/uploads/documents/articles/antonacci_nylj_mediation-a-solution-for-resolving-interpersonal-conflict_2017-03-20.pdf#.

111 FRASCOGNA, JR. & HETHERINGTON, supra note 3.112 Explained further infra Part III Section A-E.



A. Disputes Prior to and Upon Signing the ManagementAgreement

The way you pick your professional team will either set up yourcareer and finances for life, or assure you a place on the nextElectric Prunes tour . . . If you pick the right people, you can setyourself on automatic pilot and just check up on it periodically.If you pick the wrong people and set it on automatic pilot, you’llsmash into a mountain before you know what happened.113

1. Compatibility Issues

The management agreement itself is often a point of conten-tion in the artist-manager relationship and identifies the prevalentissues. In the past, it was common for managers to have no writtenagreement with the artists they represented, supplying their ser-vices solely on a handshake deal.114 The reasoning behind thispractice was that the relationship between the artist and managermeant more than a piece of paper.115 This gave artists the opportu-nity to assess their compatibility with the manager and providedthem with the ability to choose to stay in the relationship or walkaway. If they stayed, the agreement was assumed to be a contrac-tual one where the parties were committed to one another—theartist needed the manager as much as the manager needed the art-ist.116 If they chose to leave, the belief was that no contract, nomatter how stringent, could force two people to effectively worktogether if they did not wish to do so.

This more recent concept encourages the parties to get toknow one another and determine their compatibility before com-mitting. However, a shift in the music industry has made thesehandshake deals essentially taboo. Artists and managers are nowexpected to enter into binding management agreements beforeeven having the opportunity to assess their connection with theother party. This expectation creates challenges for artists and

113 PASSMAN, supra note 5, at 12–13 (The Electric Prunes gained notoriety in the late 1960’swhen they release a single titled, “I Had Too Much To Dream Last Night.” They recorded andreleased an LP a year after releasing the single, which was the beginning of the end for the band;members of the band left, management didn’t understand the bands vision, and the public wasn’ttaking to the band’s new sound. The band could not retain the initial recognition it receivedfrom its first single and was soon forgotten. See The Electric Prunes, CLASSICBANDS.COM,https://www.classicbands.com/electricprunes.html (last visited Mar. 8, 2020).).

114 See PASSMAN, supra note 5, at 39 (However, today the protections provided in writtendocumentation have made written contracts the currently accepted standard.).

115 Id.116 SIMPSON & MUNRO, supra note 39, at 77.



managers because even though how the relationship is formalizedchanged, the characteristics and nature of the relationship did not.

Entertainment industry professionals and relationship psy-chologists alike have proposed certain questions individuals shouldask of themselves prior to entering a relationship, whether it bepersonal or professional. The first set of five questions waspresented to an artist in the process of hiring a manager;117 the lastset of five questions was proposed to an individual consideringmarriage.118

(1) What is the manager’s conception on money? Are they will-ing to invest money into planning for the future? (2) How con-nected is the manager in the music industry, are theseconnections applicable to you? (3) Does your manager under-stand and share the same short-term and long-term vision? (4)Are you and the manager based in the same city? (5) Can yourmanager provide you with the services you need out of therelationship?119

(1) What is important to each of you to spend money on? Howdo you think about and plan to save money? (2) Which rela-tionships are important to you and your partner? How will theyinteract with your marriage? (3) How do you and your partnerthink about culture? What kind of culture do you want to createtogether? (4) What is important to you and your partner inthinking about location? (5) Are you honest with your partnerabout what you need in a relationship?120

While there is an evident parallelism between the attributesconsidered when entering either relationship, the inception of eachof these legally binding relationships could not be more different.On average, couples are spending 4.9 years together prior to mar-riage.121 This period allows couples to develop the foundation for amore stable long-lasting relationship, providing them with the op-portunity to build strong connections to one another.122 Both themarital relationship and the artist-manager relationship are

117 See PASSMAN supra note 5; THALL, supra note 4.118 Shara M. Brofman, Ask a Psychologist: The 5 Most Important Things to Discuss Before

Getting Married, A PRACTICAL WEDDING (Feb. 9, 2015), https://apracticalwedding.com/things-to-discuss-before-getting-married/; Randi Gunther, Ten Important Questions You Should Ask aPotential Partner, PSYCHOL. TODAY (Dec. 17, 2014), https://www.psychologytoday.com/us/blog/rediscovering-love/201412/ten-important-questions-you-should-ask-potential-partner.

119 See PASSMAN, supra note 5, at 39.120 See id.121 Bridebook.co.uk Marriage Report 2017, BRIDEBOOK, https://bridebook.co.uk/article/

bridebook-co-uk-marriage-report-2017 (last visited on Feb. 9. 2019).122 Id.



grounded in qualities that foster commitment between compatibleand dedicated individuals. Yet, artists and managers enter into re-lationships much faster. This puts the artist and the manager atrisk both personally and professionally.

If the artist does not vet a potential manager before hiringthem or a manager fails to investigate a potential client prior tosigning, both individuals will be bound to a contract with poten-tially damaging circumstances. This controversy is sometimescalled the “love-at-first-sight curse,” and occurs when the partiesimpulsively or carelessly enter into a management agreement.123 Ittypically arises in two scenarios: first, when an artist and managerare not compatible with one another but entered into the relation-ship carelessly; and second, when an artist hires a manager only tofind out the manager cannot provide the artist with the services heor she needs.124 For example, a manager having prior experiencewith acoustic country artists would most likely not have the knowl-edge, industry connections, or desire to represent a budding younghip-hop artist. Artists and managers must be cautious when enter-ing into management agreements because one fateful signature canbind them to an unfavorable agreement for years.

The primary issue here is that if an artist and manager want towork together, they are forced to be legally bound to one anotherbefore doing so. Industry norms require the artist and manager toput the cart before the horse. The artist and manager are essen-tially entering into an arranged marriage in the sense that they arelegally bound to one another without knowing if they share thesame values, aspirations, desires, or expectations, all of which areessential to the relationship’s success. This potential incompatibil-ity can lead to a wide variety of issues during the relationship.

2. Manager Manipulation

The contents of the management agreement are highly negoti-ated between the parties and are frequently the source of artistcomplaints. It is not uncommon for managers to take advantage ofbudding undeveloped artists by manipulating provisions of theagreement in their favor. With an absence of regulation surround-ing management agreements, managers are rarely held to specificstandards when entering agreements with new artists. When draft-ing the management agreement, there are certain provisions themanager will try and exploit in their favor.

123 THALL, supra note 4, at 67.124 Id.



Term, or the length of time the manager will represent the art-ist, is typically between 3 and 5 years.125 Artists usually prefershorter terms with the option to add on additional terms because itallows them freedom to exit the relationship after a short period oftime if it is not working out.126 While managers will insist onlonger terms in order to lock down the artist; this is especially trueif the manager takes on a new undeveloped client since it will taketime to groom the artist’s career, and therefore, take longer torecoup the maximum gain on their investment.127

The inclusion of a Sunset Clause is also a common point ofcontention when negotiating the management agreement.128 Dueto the significance of this clause within the agreement, both partiesare highly incentivized to negotiate this provision in a manner mostfavorable to them. Artists will typically do everything in theirpower to cut back this provision as much as possible.129 If they areunsuccessful, the manager can potentially receive payments up to10 years after he or she finished rendering service.130 However, ifthe artist has bargaining power and is able to negotiate a favorableclause, the manager may be exploited and he or she might receivelittle to no payment for their services in connection with the de-ferred income.

Commission is one of the most commonly disputed provisionwithin the management agreement. Generally, managers are paidon a commission basis—payment is based on a combination of de-ductions from the artist’s various income streams and is usuallybased on a percentage of the artist’s gross income.131 The percent-age of earning the manager receives is typically in the 15 to 20 per-cent range.132 The theory behind this payment structure is that themanager’s commission is constructed on a contingency basis ac-cording to the success of the artist.133 This compensation structure

125 PASSMAN, supra note 5, at 33.126 ALLEN, supra note 11, at 69.127 Id.128 KRASILOVSKY ET AL., supra note 68, at 335.129 ALLEN, supra note 11, at 73.130 Id.131 There are two basic methods a manager can be paid through: (1) commission based, and

(2) by a flat fee. Nowadays, it is uncommon for a manage to get paid a flat fee as percentage-based payments are considered better investments. See THALL, supra note 4, at 78.

132 Id. (Exceptional circumstances can result in a manager’s commission being much higher orlower than the norm. Managers have received as low as 11.5 percent of artist’s gross income,while other situations have given rise to managers receiving a gluttonous 50 percent of artist’sgross income.).

133 SIMPSON & MUNRO, supra note 39, at 79.



creates a collaborative revenue model that promotes mutual suc-cess. However, this concept of reciprocity can easily be disruptedwhen a party prioritizes their own interests over the parties’ mutualinterests, which can induce conflict between the parties and con-tribute to the relationship’s inevitable breakdown.

Inexperienced artists are often subject to unfair commissionterms as they are eager to start their career and blindly assumemanagers have their best interests in mind.134 Their mindset is oneof idealism over practicality, casting aside the agreement provisionsthat lay the groundwork for their career, for the fantasy of sold outarenas and Grammy nominations. This type of exploitation alsotakes place because many artists are simply inexperienced in busi-ness and legal matters and do not understand the material terms ofthe agreement.135

The primary reason this type of exploitation occurs is becausemany artists enter into their management agreements without firstseeking independent counsel.136 American icon Elvis Presley wasthe victim of multiple unfavorable management agreements withmanager Tom Parker. In 1965, the management agreement was re-newed and Parker’s commission increased from 25 percent of over-all earnings—an already high percentage—to a whopping 50percent of overall earnings.137 At the time, Presley was young andhad been working with Parker for some time, which suggests he didnot review the contract, solely relying on Parker to act in his bestinterests.138 That year, Parker earned $300,000 more than Presley,for a commission totaling to $1.3 million, equivalent to over $10million today.139

When an unscrupulous manager manipulates an artist into anunfair management agreement the artist has few viable options. Itis much more difficult for an artist to argue that a provision withinthe agreement was “unfair” or “one-sided” than it is to point to aspecific provision and explain how exactly the manager breachedtheir duty. Additionally, an artist would find it very challenging tobring a claim against the manager when he or she signed the agree-ment of their own will and free of undue influence. Further, whilean artist might claim the agreement is unconscionable, “American

134 Id. at 76.135 Id. at 75.136 Gilenson, supra note 78, at 508.137 ALLEN, supra note 11.138 Id.139 Id. at 48–49.



courts have rejected claims of unconscionability in the artist-man-ager context, holding that [some management] contracts, thoughsubstantially one-sided and lacking negotiation, were consistentwith industry norms.”140

Artists are not the only victims of pre-agreement coercion. InSimeone v. Simeone,141 Frederick Simeon, a 39-year-old neurosur-geon with an annual income of $90,000, presented his soon-to-bewife, Catherine Simeone, a 23-year-old unemployed nurse, with aprenuptial agreement the night before their wedding. The prenup-tial agreement limited Catherine’s right to receive spousal supportto $200 a week.142 Nevertheless, she signed the agreement withoutassistance of counsel and without any informed advice regardingthe rights she waived by signing the agreement. In determining thevalidity of the agreement, the court considered criteria includingfree will to enter the agreement, fairness, disclosure, and opportu-nity to obtain counsel.143 The court in Simeone upheld the prenup-tial agreement finding it valid because there was full and fairdisclosure between the parties and Catherine had voluntarily givenup the right to counsel.144

Features of manager and spousal exploitation are one and thesame: there is an imbalance of power between the parties; oneparty uses that influence for self-serving purposes; the more sus-ceptible party submits because they are eager to enter into the le-gally binding relationship, and then the inequality of the agreementcreates distance between the parties while the exploited party isleft with limited legal recourse or without a viable resolution. Thecourts tend to uphold the validity of such agreements, whether itbe a management agreement or prenuptial agreement. However,the basis for the court’s decision of upholding the managementagreement is misplaced for two reasons.

The court’s reliance on industry norms in upholding the valid-ity of management agreements is outdated and inapplicable to themodern artist-manager relationship. First, the court fails to recog-nize that industry norms are not always directly applicable to theartist-manager relationship because the relationship itself is uncon-ventional in the industry. Artists are receiving more legislative and

140 Gilenson, supra note 78, at 517.141 Simeone v. Simeone, 525 Pa 392, 581 A2d 162 (1990).142 Id.143 Id.144 Id.



judicial protection in other industry relationships145 than in the art-ist-manager relationship since other music industry professionalsare expressly regulated by federal statute, state law, or unions.Second, the courts are assessing these claims by looking to the in-dustry for guidance when they should instead be assessing suchclaims on a case-by-case basis; looking to the material aspects ofthe specific relationship. The attributes and features of the rela-tionship are consistent with those of a marital relationship, yetcourts do not assess disputes between spouses by looking to thecurrent standards and marital landscape of the United States. Fur-thermore, lack of support from the courts compels artists and man-agers to rely on one another for viability; however, when disputesarise between the parties, improper judicial application of the lawand lack of understanding of the relationship by the courts leavesthe artist and manager with no legitimate solution.

B. Disputes During the Management Agreement

Disputes between the artist and manager can occur during theprocess of executing the management agreement, but these con-flicts rarely result in termination of the agreement prior to execu-tion. The rationale being that issues between the two individualsdo not outweigh the potential future achievements and goals whichare only achievable by keeping the relationship intact.

Unfortunately, these future achievements are put at risk whenthe parties are influenced either by external factors or the prospectof fame and stardom. The synonymous nature of the marital rela-tionship and artist-manager relationship remains prevalent even af-ter the parties become legally bound to one another. Thesimilarities can even be exemplified in the factors contributing todissolution of the relationship. It is only when the manager andartist turn their back on one another that the relationship willdeteriorate.

145 Agents are regulated by unions, such as the American Federation of Musicians (“AFM”).The AFM sets a cap on how much agents can charge for their services (the current cap is 10percent commission) and requires agents to use union-approved contracts. See PASSMAN, supranote 5, at 57–58. All attorneys are bound by the Canon of Ethics in addition to numerous statelaws dictating acceptable legitimate behavior from unethical illicit behavior. See PASSMAN,supra note 5, at 52. Generally, record companies are controlled by copyright law, business law,and contract law; additionally, some state legislatures have enacted specific laws to monitor re-cording artists contracts. See also Cal. Lab. Code § 2855 (West 2007).



A study published by the U.S. National Institutes of Healthreported the most common major contributors to divorce are lackof commitment, arguments, and infidelity.146 Commentators andentertainment attorneys have identified two conflicts which occurduring the artist-manager relationship that involve all three majorcontributors to divorce and also account for the majority of artistand manager disputes.147

1. Breach of Contract & Procuring Employment

The first conflict that contributes to artist-manager relation-ship disputes is when artists allege the manager violated agency lawby procuring employment opportunities for the artist. Similar tohow the process of negotiating the management agreement pro-vides managers the opportunity to exploit artists, agency laws, suchas the TAA provide artists with a sword against managers duringlegal disputes.148 Typically, the artist will file a petition with theLabor Commission alleging their manager engaged in procuringemployment for them as an unlicensed talent agent, and then theartist will request the court invalidate the management agree-ment.149 This allegation is the most common claim made by artistsagainst their managers.150 Entertainment attorney Jonathan E.Stern explains: “The classic case occurs when . . . the artist fires themanager, the manager sues for commissions, and the artist thenseeks to void the contract . . . .”151

An allegation of unlicensed employment procurement is es-sentially an artist’s “get out of jail free card.” Some may ask: whywould an artist jeopardize their relationship with an individual whohas helped build their career and bring them great success? Theanswer is simply because artists frequently can do so without anyrepercussions. Due to how the legislatures constructed and

146 Shelby B. Scott, et al., Reasons for Divorce and Recollections of Premarital Intervention:Implications for Improving Relationship Education, in 2 COUPLE FAM. PSYCHOL. 131, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4012696/.

147 See infra Part III Section 1.148 Eriq Gardner, Personal Manager Group Sues to Stop Enforcement of the Talent Agencies

Act, HOLLYWOOD REP. (Nov. 13, 2012, 9:57 AM), https://www.hollywoodreporter.com/thr-esq/personal-managers-group-sues-stop-389786.

149 Id.150 Additional breaches of contract include: sealing the artists funds, mixing funds among

manager and artists bank accounts, making themselves totally unavailable during key momentsin the artists career, participating in activities that are direct showings of conflicts of interest, amanager utilizing others to do his job, thus, breaching the exclusivity clause, chooses to leave thecontract before termination. See THALL, supra note 4, at 87.

151 Armbrust, supra note 106.



worded the applicable agency and employment laws, the relevantstatutes essentially create a loophole for artists to get out of themanagement agreement. When an artist wants to end the relation-ship with their manager, the artist can intentionally breach themanagement agreement meanwhile knowing they can assert theLabor Code. By showing an unlicensed booking by the manager,the agreement can be invalidated and the artist can walk awayfrom the agreement scot-free.152

Many artists breach their agreement once they have built areputation in the industry. The artist believes they have outgrowntheir original manager, and it is time to move on to bigger andbetter things. Other artists breach due to a conflict in the relation-ship they believe cannot be resolved. Sometimes, artists breachsimply because they do not want to continue paying the manager apercentage of their gross income.153 The Los Angeles-based elec-tronic dance music duo, LMFAO, breached their managementagreement with manager Rene McLean in order to retain a greatershare of their income revenue.154 To fill the newly vacant manage-ment position, LMFAO hired two of McLean’s employees.155

Upon termination of the agreement, McLean filed a complaint al-leging LMFAO failed to fully account and pay commissions.156 Healso alleged LMFAO hired McLean’s employees in order to takeadvantage of their expertise and experience gained from workingunder McLean, while simultaneously reaping the benefits of payingthem a relatively low salary compared to the commission payableto McLean pursuant to the management agreement LMFAO hadwith him.157

In response, LMFAO filed a petition with the California LaborCommission alleging McLean violated the TAA by landing them a“Pepsi marketing campaign and setting up multiple performancesas clubs and parties in New York and Los Angeles.”158 The LaborCommission ruled in favor of LMFAO, finding that McLean vio-

152 McPherson, supra note 77.153 Id.154 Eriq Gardner, LMFAO Takes Ex-Manager to the California Labor Commissioner,

HOLLYWOOD REP. (May 3, 2013, 7:52 AM), https://www.hollywoodreporter.com/thr-esq/lmfao-takes-manager-california-labor-451573.

155 Complaint at 32, RPMGRP, Inc. v. “LMFAO”, No. SC116427 (Cal. Super. Ct. filed Jul.11, 2012).

156 Id. at 29 (McLean’s complaint stated, “The fair and reasonable value of the service pro-vided to Defendant for which Defendant have not paid Plaintiff exceeds $7,000,000. . .”).

157 Id. at 32.158 Gardner, supra note 154.



lated the TAA. The Commission ordered repayment of $60,000 infees to LMFAO and rendered the management agreement illegal,void, and unenforceable.159

The outcome of this case presents two differing opinions sur-rounding the most litigated conflict between artists and managers.Addressing LMFAO’s allegation, the artist duo’s attorney stated,“This case presents exactly the kind of situation that the TalentAgencies Act absolutely forbids.”160 Conversely, upon judgementMcLean explained that even if he violated the TAA, “The viola-tions do not support termination of the management agreement inits entirety because of the overwhelming amount of permissiblework [I] did as [LMFAO’s] manager.”161

Taking an impartial view on Labor Code disputes, there is nodenying that the enacted legislation and the courts’ current ap-proach to these conflicts is only adding to the number of estrangedartist-manager relationships. Problematically, when conflicts arisewithin the relationship, artists and managers have no neutral forumwhere they can address the conflict together. The judiciary en-dorses termination of the management agreement whereas thestate legislatures construct regulations that encourage artists tobring claims against managers.

2. Tortious Interference

The second issue that substantially affects the viability of theartist-manager relationship is also a leading cause of break ups anddivorce: infidelity. In a marital relationship, the most common actof infidelity is cheating.162 In the artist-manager relationship, it istortious interference.163 Tortious interference occurs when a non-contracting party interferes with the performance of the contractbetween the contracting parties.164 In the context of the artist-manager relationship, tortious interference generally occurs whena third party interjects themselves into the artist-manager relation-

159 Ashley Cullins, LMFAO Wins California Labor Commissioner Fight with Ex-Manager,HOLLYWOOD REP. (Sept. 5, 2017, 5:51 PM), https://www.hollywoodreporter.com/thr-esq/lmfao-wins-california-labor-commissioner-fight-manager-1035408.

160 Gardner, supra note 154.161 Id.162 Scott, supra note 146.163 See CAL. CIV. JURY INSTRUCTIONS No. 2201.164 Law Office of James Falcone, A California Interference with Contract Claim Requires a

Stranger to Contract to Interfere—But the Stranger May Have an Economic Interest in the Con-tract (Mar. 26, 2018), https://www.calrealestatelawyersblog.com/california-interference-contract-claim-requires-stranger-contract-interfere-stranger-may-economic-interest-contract/.



ship, trying to coax the artist away from the manager and persuadethem to terminate the relationship.

Tortious interference can occur in many different forms, suchas offering the artist a better commission rate and record deal ifthey leave their current manager; persuading the artist they haveoutgrown their current manager, or discrediting the artist’s currentmanager and promoting other industry professionals. In somecases, the third party’s presence might not initially present a risk tothe relationship, but later becomes one when either the artist gainsnotoriety or the third party sees an opportunity that they can bene-fit from.

Third party interference not only poses a threat to the man-ager’s job security, but also to the artist’s career. Young artists canbe easily influenced by people close to them and are likely to com-ply with the requests of a third party. This is especially true if thatthird party is a parent,165 which is exactly the case of Taylor Swiftand ex-manager Daniel Dymtrow. In response to the Swift fam-ily’s accusation against him,166 Dymtrow filed a claim alleging tor-tious interference, stating, “Scott Swift, [Taylor’s father], began tosystematically and wrongfully discredit [my] efforts on behalf ofArtist, and interfere with [my] management of Artist, includingthreatening Artist to disaffirm her [management agreement] with[me], or else lose all economic support from him for her career.”167

Dymtrow and Swift cut ties after this dispute.The influence a third party can have over the artist-manager

relationship is similar to a third party interjecting in a marriage. Inboth scenarios, one partner is threatened by the presence of thethird party, and the other partner is easily be influenced by thethird party—but also has the power to determine in which direc-tion the relationship will go. The issue for artists and managers isthat the music industry is a competitive environment, and conse-quently many professionals are looking out for their own best in-terests rather than those of the artist and manager.

165 See ALLEN, supra note 11, at 49 (Aaron Carter trusted his parents during his career as achild and subsequently sued his parents later in life relating to their actions pertaining to hiscareer).

166 The Swift family claimed Dymtrow did not get court approval of the management agree-ment between himself and Taylor Swift, which was necessary as she was a minor at the time, andthus the contract was dis-affirmed. See Jeanette Torres, Taylor Swift Being Sued for Millions byFormer Manager, ABC NEWS RADIO (Oct. 10, 2011, 7:14 AM), http://abcnewsradioonline.com/entertainment-news/2010/10/11/taylor-swift-being-sued-for-millions-by-former-manager.html.

167 Complaint and Jury Demand at 14–15, Dymtrow v. Swift, No. 07-CV-11277 (S.D.N.Y Dec.14, 2007), 2007 WL 4840150.



C. Disputes After the Agreement & Lasting Effects

After the artist-manager relationship ends, disputes regardingmonies between the parties are likely to still arise. As expressed inthe management agreement, artists likely owe commissions to theirformer manager for the contractual commitments made betweenthe two parties during the term of the former relationship.168 Post-relationship payments are also common in marital relationships inthe form of spousal support.169 While payments between artistsand managers are based solely within the four corners of the con-tract and contingent on the services provided, spousal support isguided by state statute and awarded by the court in an amount thatis determined fair based on the circumstances.170 However, dis-putes regarding post-relationship payments arise in both caseswhen one party refuses to pay their required share.

Many managers file suit against previous clients in order toreceive their rightful earnings. Pitbull’s ex-manager, Charles Cha-vez, alleged that when the two parted ways, Pitbull owed him overone million dollars because the artist stopped paying Chavez com-missions and royalties generated from albums on which heworked.171 Not only is it detrimental to the manager’s career andlivelihood because they are unable to access money that may berightfully theirs, but also the legal process they must go through inorder to obtain the money is time consuming and expensive.

The consequences of these post-relationship disputes betweenartists and managers can leave a lasting impact on the relationshipbetween the artist and the manager as well as both of their careers.The first lasting impact is the likelihood of bad publicity and un-wanted public exposure resulting from the dispute. The music in-dustry is built around fan engagement, and journalists capitalize onexposing sensitive and private issues to the public at large. For ex-ample, the Page Six website lists current legal disputes within the

168 THALL, supra note 4, at 85.169 Spousal support is court-ordered money paid to support a spouse. See Spousal Support or

Maintenance, LEGAL ASSISTANCE OF WESTERN N.Y., INC., https://www.lawny.org/node/15/spousal-support-or-maintenance (last visited Feb. 9, 2019).

170 Elliot Polland, Maintenance (Spousal Support), N.Y.C. B. LEGAL REFERRAL SERV. (Jan.2015), https://www.nycbar.org/get-legal-help/article/family-law/maintenance-spousal-support/.

171 Ex-manager Sues Pitbull for 10 Percent of a Whole Lot of Money, L.A. DAILY NEWS (Aug.3, 2016, 12:58 PM), https://www.dailynews.com/2016/08/03/ex-manager-sues-pitbull-for-10-per-cent-of-a-whole-lot-of-money/.



entertainment industry, giving readers the juicy, up-to-date detailsof their favorite celebrity’s current case.172

Negative ramifications caused by the public’s involvement inthe relationship’s issues are exemplified in the suit between rapperCardi B and former manager Klenord “Shaft” Raphael, who suedfor breach of contract and defamation. During the initial dispute,Cardi B took to Instagram’s live broadcasting service to disparageShaft.173 The video was posted on a popular Instagram gossip blog,TeaTenders, where Cardi B’s “fans and members of the public hadreasonably understood” the video to mean that “Shaft and his busi-ness were stealing from [Cardi B] and otherwise not serving herbest interests.”174 The highly publicized video and ongoing litiga-tion contributed to a slew of negative comments directed towardsRaphael, which damaged his public image and reputation.175 Thefollowing comments were left by Cardi B fans and readers of theTeaTenders gossip blog in response to Cardi B’s video:

PEACEFULSOUL2 Honestly, you really cant trust nobody! Thisindustry is wicked. . .GLOW_G_ Dam! That’s f[*]cked up smh . . . how you do that tosomeone making you $$$$$ #No LOYALTY OR RESPECTANYMORE. . .. . .FAVEN_ Omg wow shaft been working with her for alonnnnggggg time. . .TAVION._ Damn that so f[*]cked up. That whole managementteam was on a come up thanks to Cardi and they got the nerveto steal $$$$ from her. SMFH. . .XOPRETTYLEXX Sooo shaft was stealing from her? Smh. . .MOUNTAINHIGH_7887 That’s a damn shame. Money changespeople. Good she discovered before the stealing got worse. Adamn shame.176

Responding to the disparagement, Raphael stated that CardiB’s public statements had, “materially sullied and damaged [his]

172 See Celebrity Lawsuits, PAGE SIX, https://pagesix.com/tag/celebrity-lawsuits/ (last visitedMar. 9, 2020).

173 Complaint and Demand for Jury Trial at 9, Worldstar Mktg. Grp., Inc., v. Almanzar, No.1:18-CV-03710 (S.D.N.Y 2018).

174 Id. at 9.175 Id. at 9–11.176 Id.



image and reputation in the music industry and the businessthrough which he provides entertainment services, including as amanager . . . .”177

When conflicts between an artist and manager become publicknowledge, managers are not the only parties to encounter conse-quences: “[M]any artists simply choose not to complain, presuma-bly worried that if they do speak out, it will make it difficult toobtain future representation.”178 For obvious reasons, managersare reluctant to represent troublemaking or combative clients whomight sue, or worse, allege the manager procured employment forthem without a license.179

The second lasting impact is that many artists never fully re-cover from the separation from their original manager and in fact,may even experience a decline in their career.180 Likewise, “statis-tics have shown that in the U.S. . . . 67% of second [marriages] and. . . 73% of third marriages end in divorce.”181 Divorce in secondand third marriages is more common because ex-spouses have dif-ficulty rebounding without their original partner.182 During a firstmarriage, couples generally establish their life together,183 whilesecond and third marriages generally lack the foundation inherentto first marriages.184

The same can be said for artist-manager relationships. Whenrock band Snow Patrol transferred from Big Life management toQ Prime management, their first album under Q Prime, “A Hun-dred Million Suns”, was extremely underwhelming.185 Snow Pa-trol’s last album before transferring to Q Prime, “Eyes Open” soldover 2.3 million copies in the United Kingdom, while “A HundredMillion Suns” only sold about half a million copies, to the band’sdisappointment.186 Artist Lorde experienced a similar career de-cline after parting from her long-time manager, Scott Maclachlan.Maclachlan signed Lorde as an undiscovered artist, turning herinto an international superstar after dedicating five years to her

177 Id. at 11.178 Zelenski, supra note 73, at 998.179 Id.180 See Forde, supra note 46.181 Mark Banschick, The High Failure Rate of Second and Third Marriages, PSYCHOL. TODAY

(Feb. 6, 2012), https://www.psychologytoday.com/us/blog/the-intelligent-divorce/201202/the-high-failure-rate-second-and-third-marriages.

182 Id.183 For example, they purchase a house, have children, establish their careers, etc.184 Id.185 Forde, supra note 46.186 Id.



career.187 Under new management, Lorde’s 2018 tour was a flop,with undersold shows and discounted ticket sales just to incentivizepeople to attend the show.188

D. Current Judicial Resolutions

The personal nature and inherent characteristics of the artist-manager relationship present challenges for the artist and managerthat are not experienced by individuals in any other relationship inthe music industry.189 There are options in court for artists andmanagers when disputes arise, but this “solution” subjects the par-ties to an expensive, timely, and very public resolution.190 Evenmore disconcerting is that these remedies are provided by courtswhich categorize the artist-manager relationship as strictly busi-ness, often providing artists and managers with no solution thatwould allow them to continue their relationship rather than termi-nate it. The most common solution that the courts offer involvesterminating or invalidating the management agreement and pro-viding judgments with monetary awards.191 None of these solu-tions promote the longevity of the artist-manager relationship orallow the parties to address disputes together, rather than as op-posing parties.192

However, the courts are not solely to blame. The legislature’svague wording of the TAA and Article 11,193 directly causes thejudiciary to improperly categorize and analyze artist-manager dis-putes, thus leading to the demise of the relationship. Overall, thelegal system establishes a lose-lose situation for the artist and man-ager. The legislature fails to provide clarity on what is considered“procurement” and the California Labor Code lacks a clear defini-tion for “procurement of employment.”194 The degree to which amanager assists their client with employment opportunities may or

187 Id.188 Id.189 FRASCOGNA, JR. & HETHERINGTON, supra note 3, at 11.190 Jeffery Grubman, Taking Advantage of ADR in the Entertainment Industry, INSIDECOUN-

SEL.COM (Apr. 16, 2013), https://www.jamsadr.com/publications/2013/taking-advantage-of-adr-in-the-entertainment-industry.

191 SIMPSON & MUNRO, supra note 39, at 95.192 See id., at 95. See also THALL, supra note 4, at 85–86.193 See Talent Agencies Act, Cal. Lab. Code § 1700 (West 1986); N.Y. Gen. Bus. Law § 171

(McKinney 1988).194 Remick & Eisen, supra note 22, at 73–74. See also Talent Agencies Act, Cal. Lab. Code

§ 1700 (West 1986).



may not require the manager to obtain a license—but to what ex-tent can a manager support an artist on this basis? What is consid-ered an employment opportunity? How involved can the managerbe in the booking process? What if the manager has provided thisservice before without alleged illegality by the artist? All of theseare common questions that the legislature has failed to answer, re-sulting in the courts having too much discretion on where to drawthe line. Howard E. King, entertainment attorney, expresses howineffective the current regulations are and how the vagueness ofthe TAA allows for inaccurate and inconsistent rulings:

What’s happened over the years is we’ve had all kinds of casesin which stars were able to terminate contracts with personalmanagers by claiming that the managers booked them a date.It’s very effective if you want to get out of a contract. Let’s sayyou manage an artist and you take a call from the Jay Lenoshow and they express an interest in booking your artist - in theeyes of the California Labor Commission, you’ve already vio-lated the California Talent Agencies Act, because you’re not alicensed talent agent . . . Every artist in the world, if they want tofire their manager, always bring this act before the LaborCommissioner.195

As common as Labor Code claims are, courts have providedmanagers no parameters explaining what might or might not beconsidered employment procurement. This can leave managerscautious of their actions, which could potentially affect the qualityof their work and support for the artist. For example, in 2003 alow-level assistant of Atlas/Third Rail Management, the manage-ment company that represented Weezer, booked the band “to playtwo small club shows under a different name.”196 Because of theassistant’s actions, the band was able to void their managementcontract with Atlas.197 The management company “was forced toreturn to Weezer all of the commissions it had earned from theband’s activities following the unlawful booking.”198 In many cir-cumstances, especially if the client is a new undiscovered artist, themanager will handle the bookings.199 Further, courts have “rou-tinely refrained from interfering with standard industry prac-

195 Joe Bosso & Michael Leonard, EXCLUSIVE: Killers Lawsuit Attorneys Speak,MUSICRADAR (Feb. 27, 2009), https://www.musicradar.com/news/guitars/exclusive-killers-law-suit-attorneys-speak-198332.

196 KRASILOVSKY ET. AL., supra note 68, at 338.197 Id.198 Id.199 ALLEN, supra note 11, at 70.



tice.”200 This creates a problem for artists and managers because,when assessing an artist-manager claim, courts that defer to stan-dard industry practice may be unwilling to consider the substanceof the artist-manager relationship when ruling.201

E. ADR in the Music Industry

Many artists and managers have learned the hard way that it istypically in both of their best interests to remain in the relation-ship. In order to promote lasting committed relationships betweenartists and managers, the resolution for disputes between the par-ties must complement the personal nature of the relationship andcompensate for the lack of proper judicial decisions. While the useof alternative dispute processes has been substantially growingwithin the U.S., ADR is rarely taken advantage of in the musicindustry.202 Yet, “entertainment matters are at the top of the list ofpractice areas for which ADR is ideally suited.”203

Using alternative resolution processes would allow the partiesto work through conflicts outside of court giving the artist-managerrelationship a higher probability of lasting. ADR would be highlyapplicable as it provides the parties with privacy in addressing theconflict and the expertise of a mediator well versed in the industry,both of which are valued greatly in the world of entertainment.204

IV. PROPOSAL

Methods of ADR are widely implemented in the practice areaof family law.205 Specifically, in cases of divorce, fewer couples arerelying on the courts and instead are turning to ADR for re-course.206 Spouses that turn to the courts for a resolution, unfortu-

200 See Gilenson, supra note 78, at 504.201 Id.202 Toni L. Wortherly, There’s No Business Like Show Business: Alternative Dispute Resolu-

tion in the Entertainment Industry, 2 VA. SPORTS & ENT. L. J. 162, 172 (2002).203 Grubman, supra note 190.204 Id.205 Archer Law, Why Divorcing Couples Are Choosing Alternative Dispute Resolution Over

Litigation, PHILLYVOICE (Sept. 12, 2019), https://www.phillyvoice.com/why-divorcing-couples-are-choosing-alternative-dispute-resolution-over-litigation-0599944/.

206 Id.



nately, find litigation to be time consuming and expensive.207

Generally, in litigation, the first few months are spent in discovery,during which the attorneys are writing and responding to motions,submitting and answering requests, and scheduling depositions.208

There is little, if any, talk of settling.209 Not only is this processtime consuming and expensive, but it deprives the parties of theability to control the outcome and discourages the parties from col-laborating with one another.210

Many couples have been turning to ADR as a remedy as itoffers flexibility and greater control over the resolution.211 Ex-plaining that many couples choose ADR because it is a more cus-tomizable path to dissolve the marriage, William J. Thompson,Esq., a shareholder at Archer & Greiner, states, “Mediation aidsthe parties in directly working through the issues in a less formalsetting, but requires open communication, candor, and a willing-ness to compromise. Arbitration, although more formal that medi-ation, nevertheless allows the parties to streamline the factfinder’srole allowing a quicker result than a court trial.”212 Additionally,with the practice of ADR expanding and more alternatives beingoffered to interested parties, there is likely a way to customize theresolution method to meet exactly what each party needs.213

While timing, efficiency, cost, and customization are all advan-tages of ADR, dispute resolution processes are also applicable inthe practice of family law because of the fundamental characteris-tics and nature of the marital relationship.214 According to Caro-

207 Id.208 Lisa Taylor, Why You Should Mediate Your Divorce Instead of Litigating It, MEDI-

ATE.COM (Dec. 2019), https://www.mediate.com/articles/Taylor-mediate-divorce.cfm.209 Id.210 Id. (“[In divorce litigation] opposing attorneys look for ways to weaken your spouse and

instruct you not to talk with each other about any substantive decision-making but instead, totalk through attorneys.” The parties also lose a substantial amount of control in their ability totailor the process and proceedings to their specific needs. For example, “attorneys [often] havetemplates they use, which they send out in almost every case, not necessarily tailored for [eachclient’s] specific needs, sometimes 20 to 30 pages long.” This limits the attorney’s ability andwillingness to customize the proceedings to each client.).

211 Law, supra note 205.212 Id.213 See Dispute Resolution Processes, AM. B. ASS’N, https://www.americanbar.org/groups/dis-

pute_resolution/resources/DisputeResolutionProcesses/ (last visited Feb. 10, 2020) (The Ameri-can Bar Association website lists twenty-two different dispute resolution processes. The listincludes the more widespread processes like mediation and arbitration, but also identifies anddescribes a number of lesser known dispute resolution processes like private judging, parentingcoordinator, divorce coaching, and early neutral evaluation.).

214 See Taylor, supra note 208.



line Antonacci, Esq., a full-time mediator, arbitrator, and specialmaster at JAMS, “The dynamics and tensions underlying cases in-volving interpersonal conflict are generally different in nature thanother types of disputes.”215 Antonacci further explains that the,“[a]dversarial litigation process is not designed to meet the needsthat must be met to optimally resolve interpersonal conflict. Liti-gation is a long, public, emotionally and financially burdensomeexperience that regularly leaves its participants . . . scarred.”216

Parties in an interpersonal dispute generally “live or work to-gether,” which “results in a heightened personal connection to theconflict.”217 Interpersonal disputes are often “time and economi-cally sensitive” and require a resolution that addresses not onlyboth parties’ psychological needs, but also their emotional needsdue to the personal nature of the relationship.218 The proposal toimplement alternative dispute processes in artist-manager disputesis only logical as the artist-manager relationship portrays such simi-lar characteristics to the marital relationship.

The success of ADR in artist-manager disputes is promisinggiven its effectiveness in the area of family law. The use of ADR inmarital disputes is increasing, and there is a growing trend towardsresolving divorce out of court.219 “The US divorce statistics showthat nearly 90 percent of mediated divorce cases have settled suc-cessfully.”220 Research has shown that “more than two-thirds ofmediating couples were found satisfied with the outcome of thewhole process.”221 Parties that successfully resolve their divorceoutside of court are likely to recommend the process to others.222

Moreover, it is more efficient for parties to implement alternativedispute processes at the outset because over 95 percent of all di-vorce cases filed in court, settle, thus making it counterproductivefor parties to even initiate a court proceeding.223

The resolutions proposed to resolve artist-manager disputesare prescribed based on the type of conflict and period in the artist-

215 See Antonacci, supra note 110.216 Id.217 Id.218 Id.219 Karin Price Mueller, 5 divorce trends in New Jersey, NJ.COM (Feb. 3, 2020), https://

www.nj.com/advice/2020/02/5-divorce-trends-in-new-jersey.html. See also Law, supra note 198.220 Everything About Divorce Mediation Process, DIVORCE STATS., https://www.divorcestatis

tics.info/everything-about-divorce-mediation-process.html (last visited Feb. 10, 2020).221 Id.222 Id.223 Taylor, supra note 208.



manager relationship life cycle. Special consideration is given todispute resolution processes that are exclusive to marital disputesdue to the likelihood of success in resolving disputes between theartist and manager.

A. Disputes Prior to and Upon Signing the ManagementAgreement

Ideally, for artists and managers to truly feel confident andsecure when establishing a relationship with one another, the par-ties should not be obligated to immediately enter into a bindingcontract. But such a proposal would be considered obsolete andextremely unconventional by industry professionals. Therefore, itis suggested that artists and managers take alternative precautionsin order to ensure they safeguard against incompatibility and ma-nipulation within the negotiation process.

1. Incompatibility

Incompatibility between the parties is common when artistsand managers enter into a management agreement too quickly.Due to the manager’s significant impact on the artist’s career andlevel of success, both parties must take adequate time when consid-ering if they can commit to one another long-term. The most effec-tive way to ensure the long-term viability of the artist-managerrelationship is to initially have the parties enter into a managementagreement with a short initial term of six months to a year thatincludes a roll-over provision providing automatic renewal of theagreement for three to five years, the typical term of a manage-ment agreement, if the artist and manager decide to continue therelationship after the initial term.

Beginning the artist-manager relationship with a short initialterm provides the artist and manager with a “try before you buy”period. This initial contract term could be perceived as the datingperiod; the stage of the relationship where the parties familiarizethemselves with one another, consider their compatibility and as-sess their suitability as long-term partners. By observing the otherparty’s conduct and effort put into the relationship during the ini-tial term, each party would have the opportunity to determine ifentering into a long-term relationship would be a sensible careerchoice.



The roll-over provision would ensure that all material termsagreed upon during the initial term of the management agreementare effective for the following term, should the artist and the man-ager decide to continue the relationship. For example, the roll-over provision might state that, “if the Manager’s services produceX amount of income for the Artist and the Artist provides Xamount of studio, promotion, and songwriting hours within Xmonths, and if during that time the Parties cordially, honorably,and harmoniously work together, then all material terms of theagreement in effect during the initial term will control and holdeffective during the three to five year term automatically followingthe initial term of this Agreement.”

If utilized properly, the initial term of the management agree-ment could be a comprehensive tool for the parties to evaluateeach other’s talents, personalities, and compatibilities. This will al-low the parties to assess the type of management that is needed fortheir relationship, and what will be expected from the parties in thelong-term.224 By preserving material terms, the artist and managerare not obligated to renegotiate terms that might have been a pointof contention between the parties, thus decreasing the opportunityfor possible conflict to arise. This short initial term would give theartist and manager the opportunity to reevaluate risks, reconsidermaterial aspects of the relationship, and renegotiate provisionsprior to entering into a typical long-term management agreement,all of which will create a stronger foundation for the artist-managerrelationship.

Moreover, in order to further effectuate a strong foundationbetween the parties, an ADR clause should be included in themanagement agreement. It is suggested that the ADR clause in-clude the dispute resolution methods illustrated in Part IV of thisNote. However, the scope of the ADR clause should be drafted tobest suit the parties’ needs, whether that means specifying thetypes of disputes covered by the clause or the different resolutionmethods implemented. By including this clause, the artist andmanager will be held accountable to address disputes in a way thatpromotes longevity of the relationship and mitigates the considera-tion of terminating the agreement. An ADR clause guaranteesthat the artist and the manager are provided with viable optionsthat facilitate collaborative problem solving if conflicts arise.

224 See FRASCOGNA, JR. & HETHERINGTON, supra note 3, at 11.



2. Manager Exploitation and Manipulation

If the artist and manager decide to continue their relationshipafter the initial term of the management agreement, the partiesmust continue to safeguard the relationship in order to encouragemaximum mutual growth with minimal conflict. It is suggested thatboth parties have the opportunity to consult with and be repre-sented by counsel, if he or she so chooses, prior to executing themanagement agreement. If the parties obtain counsel prior to ne-gotiating the agreement, the attorneys can provide contract exper-tise, industry knowledge, and negotiation skills that maximize theequity and legitimacy of the agreement.

Encouraging the parties to obtain counsel would decrease thenumber of unsuspecting artists that are manipulated by managerswhile negotiating the management agreement. For example, in thelawsuit between the rapper, Cardi B, and her former manager, Kle-nord “Shaft” Rafael, Cardi B alleged that Shaft made her sign over50 percent of her royalties to him.225 When she asked him if thiswas a standard percentage he responded, “this is an absolutelystandard percentage for a recording artist to receive and repeatedlytold her other famous artists were paid far smaller percentages oftheir record royalties.”226

Retaining an entertainment attorney that specializes in con-tract negotiation and drafting at the outset is the most effectiveway to ensure that litigation counsel is never needed.227 For bud-ding new artists or young inexperienced managers that don’t be-lieve they can afford counsel, solutions are available. Thesesolutions include, law school clinics228 that are tailored to aidingindividuals in matters of entertainment law or volunteer organiza-tions such as Volunteer Lawyers for the Arts229 who provide artistsand managers with valuable resources that should be utilized dur-ing the negotiation process.

225 Nancy Dillon, Cardi B’s Ex-Manager Asks Judge to Dismiss Her $15 Million Counter-Lawsuit Against Him, N.Y. DAILY NEWS (Sept. 4, 2018, 8:40 PM), http://www.nydailynews.com/news/ny-news-card-b-manager-seeks-lawsuit-dismissal-20180904-story.html#.

226 Id.227 FRASCOGNA, JR. & HETHERINGTON, supra note 3, at 47.228 See Indie Film Clinic, CARDOZO L., https://cardozo.yu.edu/indie-film-clinic (last visited

Feb. 10, 2020) (“The Indie Film Clinic is a not-for-profit clinical program that provides free legalservices to filmmakers . . . and artists.”).

229 See Our Mission, VOLUNTEER LAW. FOR THE ARTS, https://vlany.org/our-mission/ (last vis-ited Feb. 10, 2020) (Volunteer Lawyers for the Arts (“VLA”) is an organization comprised ofvolunteer lawyers who provide their services free of charge to the local arts community.).



B. Disputes During the Management Agreement

The disputes that arise between the artist and manager duringthe management agreement can be extremely detrimental to theartist-manager relationship and both of their careers. Disputes canarise at any time during the management agreement and the inten-tions of each party are not always apparent. In order to truly un-derstand each party’s objective and desired outcome during adispute, it is suggested that the artist and manager engage in a se-ries of ADR processes until the artist and manager are satisfiedthat the dispute has been resolved. The recommended series ofprocesses promotes joint problem solving and encourages resolu-tion of the dispute rather than dissolution of the relationship.

1. Breach of Contract, Procuring Employment& Tortious Interference

Whenever an artist alleges breach of contract or unlicensedemployment procurement230 by the manager, there is almost al-ways an unspoken motive behind the allegation, whether it bemoney, fame, or third-party involvement. In order to resolve thedispute while keeping the artist-manager relationship intact, theparties should first enlist the help of a facilitator.

Marriage counseling is a popular and effective tool often uti-lized to strengthen a couple’s relationship and resolve inter-maritalissues by encouraging spouses to collaborate with one another.231

The counselor is responsible for helping the couple identify theirissues and understand the cause of them through joint counselingsessions with the parties.232 Similarly, “[f]acilitation is the processin which a trained facilitator assists two or more individuals to dis-cuss relevant issues and points of conflict between the parties.”233

Imagine if an artist alleged their manager engaged in unli-censed booking, but instead of filing a petition with the LaborCommission, the artist and manager met with a facilitator. Thefacilitator promotes open communication and a safe environment,which prompts the artist to explain that they think the manager isineffective, and the artist is fed-up with the relationship. Further

230 See supra Part II Section 3.231 Marriage Counseling, MAYO CLINIC, https://www.mayoclinic.org/tests-procedures/mar-

riage-counseling/about/pac-20385249 (last visited Feb. 10, 2020).232 Id.233 Facilitation, AM. B. ASS’N, https://www.americanbar.org/groups/dispute_resolution/re-

sources/DisputeResolutionProcesses/facilitation/ (last visited Feb. 10, 2020).



enhanced communication reveals that the artist is disappointedwith their manager’s performance, but the artist was only alleging aLabor Code violation because they didn’t know of any other wayto resolve this conflict. The facilitator is now able to identify thetrue motive behind the artist’s allegation and work with the partiesto analyze the manager’s performance and develop strategies thatresolve the conflict and preserve the artist-manager relationship.Meanwhile, if the artist had petitioned to the Labor Commission,the parties would never have had the opportunity to speak can-didly to one another and there is a high likelihood the managementagreement would have been invalidated and the relationshipdissolved.

The above hypothetical displays how common dissolution ofthe artist-manager relationship can be when artists and managersare not provided with the proper resources or resolution channelsnecessary to advocate for the artist-manager relationship. The pro-cess of facilitation will serve as a better forum than the courts be-cause it allows the artist and manager to talk through the allegationand with the support of the facilitator, get to the root of the prob-lem and develop reparative measures to resolve the dispute andstrengthen the artist-manager relationship.

If facilitation is unsuccessful in resolving the dispute, the nextresolution process the artist and manager should utilize is media-tion. “Mediation is a private process where a neutral representa-tive, the mediator, assists the parties in addressing, discussing, andresolving the dispute.”234 The mediator “encourages the parties to“describe the issues, discuss their interests, understandings andfeelings;” as a neutral party, the mediator does not have the legalauthority to make any determinations relating to the dispute, butshould assist the parties in developing a mutually acceptable reso-lution.235 The resolution can then be drawn up by the mediator asa written contract legally enforceable by the courts if the partieswish.236

Mediation provides the artist and manager with the ability tocollaboratively work through the dispute together without the in-fluence of third parties, the court system, or other industry profes-sionals. In an industry where personal information is always beingpublicized, mediation provides the parties with a private outlet to

234 Mediation, AM. B. ASS’N, https://www.americanbar.org/groups/dispute_resolution/re-sources/DisputeResolutionProcesses/mediation/ (last visited Feb. 10, 2020).

235 Id.236 Id.



resolve the dispute without the fear of information getting leakedor becoming public record, unlike court rulings which, upon filing,become accessible to the public.237 Another benefit of mediation isthat it is non-binding, meaning artists and managers can opt out ofthe process at any time.238

Even if the artist and manager are unable to resolve the dis-pute through mediation, there is another promising dispute resolu-tion process the artist and manager should consider calledCooperative Practice. Cooperative Practice is a more structuredresolution process that involves attorneys rather than neutral rep-resentatives, while still providing the artist and manager with aflexible resolution process. Cooperative Practice, not to be con-fused with Collaborative Practice,239 is the process by which “theparties and their lawyers make a common commitment to cre-atively settle all conflicts jointly, and go to court only if they cannotreach a reasonable settlement.”240 The parties and their attorneysdraft a cooperative negotiation agreement, which describes howthe negotiation process will work.241

Cooperative Divorce of Cooperative Practice is a new methodof alternative dispute resolution being implemented to enhance thedispute resolution process for divorcing parties.242 Cooperative Di-vorce provides the parties with a less formal and more flexible pro-cess than Collaborative Divorce because it allows parties to retainthe option to open the negotiation process to neutral fact finders,mediators, financial specialists, and even litigation if the parties arefinding the negotiation process challenging.243 In utilizing Cooper-ative Practice for artist-manager disputes, it is recommended that,if the parties retain counsel to assist in negotiating the management

237 Grubman, supra note 190.238 Scamman, supra note 107, at 288.239 Collaborative Law, AM. B. ASS’N, https://www.americanbar.org/groups/dispute_resolu

tion/resources/DisputeResolutionProcesses/collaborative_law/ (last visited Feb. 10, 2020) (“Col-laborative Law of Collaborative Practice is an out-of-court settlement process where parties andtheir lawyers try to reach an agreement satisfying the needs of all parties . . . [i]f the partiesengage in contested litigation, their Collaborative lawyers cannot represent them in court.”).

240 Cooperative Practice, AM. B. ASS’N, https://www.americanbar.org/groups/dispute_resolu-tion/resources/DisputeResolutionProcesses/cooperative_practice/ (last visited Feb. 10, 2020).

241 Id.242 James Skirbunt, Cooperative Divorce, CLEVELAND METRO. B. J., July–Aug.2012, https://

webcache.googleusercontent.com/search?q=cache:pDRpATsoe-YJ: https://www.bestlawyers.com/Content/Downloads/Articles/2962_1.pdf+&cd=4&hl=en&ct=clnk&gl=us&client=firefox-b-1-d.

243 Id.; see also Cooperative Practice, supra note 240.



agreement, they request the attorneys to also draft and execute thecooperative negotiation agreement at that time.

By executing the negotiation agreement prior to any disputearising, any vindictive or emotionally driven decisions caused bythe conflict between the parties will not affect how the parties ne-gotiate the dispute or the resolution process. Cooperative Practicealso promotes the use of multiple alternative resolution processesprior to turning to a court for resolution, which helps shield theartist and manager from a potentially detrimental ruling by a courtthat could negatively affect both parties’ careers after therelationship.

C. Disputes After the Management Agreement & Lasting Effects

When an artist-manager relationship is unsalvageable and theparties terminate the agreement, there are still resolution measuresand safeguards that the parties can take advantage of in order toensure a successful transition into the post-relationship period.

1. Unpaid Commissions

When the artist and manager engage in a post-relationship dis-pute, the goal of the resolution process shifts from relationshippreservation to finding an effective and equitable resolution thatleaves both parties in a suitable position. Both mediation and Co-operative Practice are suggested as potential ADR processes forunpaid commission claims. However, if the parties are unable toresolve the dispute through those channels, they should utilizearbitration.

Arbitration is “the private, judicial determination of a dispute,by an independent third party.”244 In the artist-manager relation-ship, arbitration should be viewed as one of the final alternativesbefore going to court. The current court system does not considerspecific aspects of the artist-manager relationship which are inte-gral in assessing disputes regarding issues such as unpaid commis-sions. Arbitration provides the finality of a court decision as wellas the privacy of mediation.245

Another benefit to arbitration is that it allows the parties tochoose an arbitrator with expert knowledge and experience in the

244 What is Arbitration?, MEDIATE.COM, https://www.mediate.com/articles/grant.cfm (last vis-ited Feb. 9, 2019).

245 Id.



specified field.246 This could benefit the artist and the managersince courts are unlikely to stray from industry norms, which couldlead to a potentially adverse ruling for artist and manager. By se-lecting an expert in the field, parties can save time and money byworking closely with someone who is educated on the applicableregulations, industry developments, and legal history rather than ajudge or attorney with little knowledge of the industry.247

2. Career Challenges Post-Agreement

Given the difficulty of ending such a personal relationship,parties coming out of a divorce or artist-manager relationshipsometimes struggle to get back on their feet and move forwardwith their personal and professional careers post-relationship.While there are a few resources artists and managers can take ad-vantage of in the music industry, offering more services to artistsand managers post-relationship that are comparable to divorcecoaching could really increase the viability and career potential forboth parties. The American Bar Association (the “ABA”) definesdivorce coaching as “a flexible, goal-oriented process designed tosupport, motivate, and guide people going through divorce to helpthem make the best possible decisions for their future, based ontheir particular interests, needs, and concerns.”248

Divorce coaching is an innovative resource for newly divorcedpeople because it provides the parties with non-legal support onissues that commonly arise post-divorce.249 Lawyers are increas-ingly opting to work with divorce coaches because they recognizethe benefits coaches can offer “their clients in areas from emotionand communication to organization issues and helping them getthrough and beyond divorce successfully.”250 Coaches come fromdifferent professional backgrounds, which allows the client tochoose their coach based on the type of support and assistance theyare looking for during the early stages of the post-divorce pe-riod.251 For artists and managers, a coach could help them estab-lish both short-term and long-term goals post-relationship and

246 Grubman, supra note 190.247 Id.248 Divorce Coaching, AM. B. ASS’N, https://www.americanbar.org/groups/dispute_resolution/

resources/DisputeResolutionProcesses/divorce_coaching/ (last visited Feb. 10, 2020).249 Tonda R. Bian, What Role do Divorce Coaches Play During the Divorce Process?, DI-

VORCE MAGAZINE.COM, https://www.divorcemag.com/blog/what-role-do-divorce-coaches-play-during-the-divorce-process (last updated Aug. 7, 2019).

250 Id.251 Divorce Coaching, supra note 248.



provide them with the necessary encouragement and advice theyneed. As an independent third party, coaches could contributelargely to the viability of each party’s career after the artist-man-ager relationship.

V. CONCLUSION

The artist-manager relationship is based on long-term partner-ship and is one contingent on trust, commitment, and honesty. Thesignificance of the artist-manager relationship in the music industryis acknowledged, yet the fundamental characteristics that make therelationship so unique are overlooked. Artists and managers havelimited resolution options when disputes between the parties arise,and generally, a determination by a court results in termination ofthe management agreement rather than rehabilitation of therelationship.

The current regulations and legal system in place naturallycontribute to unstable and short-lived artist-management relation-ships. In order to promote preservation of the artist-manager rela-tionship and to encourage collaborative resolution practices, theremust be an industry shift towards accepting alternative dispute res-olution processes in cases of conflict within the music industry, es-pecially those between artists and managers.

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