Martin Frascogna: 5 ways to challenge the “Industry Standard”

Martin Frascogna

“Industry Standard” is an erratic expression, overused in today’s music industry. In the ‘old’ music industry, the term had meaning. Today, it doesn’t.
Industry standard is meant to define acceptable requirements followed by members of an industry, but how can you define acceptable requirements when those requirements change daily based upon geographical, economic and business model factors?
Additionally, how can you define acceptable requirements when those requirements vary from profession to profession within the music industry? If you believe there’s a clear standard, I can assure you that you lack international dealings.
Promotional tactics in Australia vary from tactics used in Brazil. Label deals in Japan are different from label deals in the US. Managers in Europe operate differently from managers in Africa. Producers in New York work differently from producers in Limerick.
Years ago, the music industry was predictable. Roles were clearly defined, models were based upon geographical locations and new label signings were based upon talent and record sales.
Today, the music industry is like the gun-slinging Wild West. Non-traditional record labels have rewritten recording agreements; sales figures are often irrelevant in comparison to streaming; social media and YouTube views; new global competitors have emerged; apps are more relevant than websites; developers are more important than attorneys; publicist are more relevant than labels; and geographical diversity and competition is unspeakable.
Defining “industry standard” when there is no “industry standard” is impossible – yet we all continue using the phrase.
The one commonality in using “industry standard” these days: it’s typically to someone’s detriment. Who’s the manager to question a $15,000 legal retainer if it’s industry standard for lawyers? If the label gives an artist a 15% royalty but claim the industry standard is 10%, who’s the artist to question this generous bump?
We all use the term without thought, but subconsciously, it’s typically to justify a professional position. Well, in today’s globalised music industry, it’s time to question “industry standard” every time you hear it. Yes, some minor practices still have a clearly defined industry standard, but practically speaking given the global market, combat the statement when it’s used.
Whether you’re an artist, manager, label executive, agent, publicist, producer or attorney, help combat the “industry standard” argument by using these five tips:
1.  Analyse The Profession
Who’s using the industry standard argument? Each profession within the music industry has their own set up consistencies. For instance, generally speaking managers are paid based upon a percentage of the artists’ income. Agents are paid based upon gigs booked, Labels make money by selling music, attorneys are paid by the hour, and so forth. It’s important to clearly define the professional avenue in which you’re dealing.
2.  Evaluate The Territory
Every country is different; therefore the standard of measuring success will vary as well.  For example, don’t expect to sell the same number of records in Nigeria as Germany or don’t expect to generate physical revenue in areas controlled by digital sales.  These geographical expectations trickle down to professional performance. Meaning, it doesn’t make since to pay a publicist the “industry standard” rate if they’re located in Cyprus in comparison with the United Kingdom. Additionally, performance success will be based upon geographical expectations as opposed to the blanket professional standard.
3.  Demand an Evaluation
Ask the following question: “based upon your professional experience, what makes that the industry standard?” Pressure parties to give examples and clarify. Often times people won’t even know why it’s the industry standard. But if you hear some grumbling, and an answer resembling “that’s just the way it is”, that’s probably not reflective of a creative/mutual relationship you want to engage in.
4.   Matching Terms
If the offering party is adamant about the “industry standard” argument, ask if they’ve ever issued better terms. More than likely they will say “no” in which your reaction should be “GREAT, than you’ll have no problem implementing a favoured nations provision in our contract, right?” Essentially, if the offering party ever issues more favorable terms to a client in the future, your terms must match it.
5.  The Second Opinion
It seems so basic, but seek a second opinion. The offer received may very well be “industry standard”; but tell the offering party that you’ll need to confirm their figures by seeking a second opinion.  If they understand your request, this speaks volumes.
Martin F. Frascogna is an entertainment attorney who represents clients both indie and major in 31 countries spanning 6 continents. At midem 2013, he discussed how to attract anti-360 offers as a band, how to structure mutually beneficial non-traditional deals and more. Watch his session in full here.Frascogna’s practice, Frascogna Entertainment Law, notably specialises in advising DIY artists. Follow him on Twitter for daily tips.

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