When news broke earlier this year that Ice Spice owned the masters to all of her recordings, the Black community, in particular, sang her praises. Pardon the pun.
Here’s why: There’s a long history of Black artists being exploited in the entertainment industry. This inequity has taken the form of pay discrimination and predatory record deals, amongst an array of tactics. Even our favs are subject to unscrupulous treatment in the music business, too. Lest we forget that in late 2020, Megan Thee Stallion sued her record label, 1501 Certified Entertainment due to shady contractual restrictions.
Black Music Month is here, and at ESSENCE, we’ve called upon some help to ensure that Black musicians keep money in their pockets.
Professor Tonya Butler is a music industry vet and the chair of the Music Business/Management Department at Berklee College of Music. The former entertainment attorney and record label executive is the first woman and the first person of color to lead Berklee’s Music Business/Management Department, in its 30-year history.
Butler is also the author of the independently released book, “The Music Business is Corrupt… or Maybe you Just Can’t Sing” and the host of a podcast called B.O.M.B., which stands for “business of music bootcamp.” Prof. Butler wants to prevent you from getting scammed.
Interview has been edited and condensed for clarity.
There is a very long history of Black musicians being exploited in the entertainment industry. Why is this?
Black people being exploited in the music industry took place during a time where Blacks were being exploited in every industry.
It was just the thing to do in America, which was to exploit those people who had no rights, or fewer rights than you did. And for so long in the history of our country, Black people weren’t even thought of as human beings. So can you imagine going from that to a point where you actually respect them for their intellect, their talent, their art, their creativity? It took a long time to get to that point.
So during that period when it was obvious that Black music would be at really the core of every other type of music we do–art and creativity was more widely accepted when it came to a white face. So that’s where a lot of the exploitation began, from my perspective. Executives would say, “This sounds really, really good, but I can’t sell it to white people unless it’s coming from a white face.”
What people forget about the music business is that it’s a business, and it always has been, and it’s in, it’s the business of exploiting music for commerce to make money. The unfortunate part is that Black artists were not being educated as to how the industry really worked, and they didn’t fully understand what it meant when they were maybe signing contracts. They didn’t fully understand what it meant to sign their rights away and to give the rights to their music away. And the fact that they were not going to be paid or not going to be fairly paid or compensated for their works—they had no idea.
You have a book, “The Music Business is Corrupt… or Maybe You Just Can’t Sing” and you are also the host of the B.O.M.B. podcast. What was your impetus for launching these two projects?
I wrote a book almost 10 years ago, called, “The Music Business is Corrupt… or Maybe You Just Can’t Sing.” The reason I wrote that book is because I was so frustrated with artists and entertainers, everybody under the sun for why they weren’t successful, not taking responsibility for perhaps their own mistakes. And because of that, and because of entering the legal field and entering academia, I have always wanted to spread this knowledge and share this knowledge with artists. And it costs a lot of money to hire a lawyer, and the majority of the people who need this information don’t have the money. So I started the B.O.M.B. podcast to talk about the business and legal aspects of the industry, but using the case study method.
I think the most disappointing thing for me on this planet, is the fact that artists still don’t know. But the information is there. I heard somebody say not too long ago, whoever pays for the master [recording], owns the master [recording]. That could be part of some people’s practice, but it’s not the law. It’s two different things.
How can forthcoming artists ensure that they do not get scammed in the music industry?
What I have found is whenever I’ve been taken advantage of, it has been due to lack of information, lack of education, but also lack of resources.
I tell this story in my classes: Fifth graders don’t like to play with kindergartners. They’re beyond that. They’re past that. They only want to play with fifth graders and above. The only time you want to play with a kindergartner is if they bring an Xbox. The industry is the exact same way. The problem with a kindergartner trying to get to a fifth grader is that a fifth grader always wants to know, “What’s your motivation?” So when I talk about not being scammed, the first way to keep from getting scammed is to build your network. Somebody comes up to you with a business card that they just printed at Kinkos saying, they’re manager, and they want to work with you and they heard you on TikTok, then do your due diligence. Don’t work with strangers.
You also have to do your homework, which is to educate yourself. Some of those blogs on the music industry are the best in the business. Read study. Have some understanding of what you’re doing before you even have a conversation with a person.
If we’re talking about royalties and you don’t know what a “mechanical royalty” is, I’m taking you to the bank.
Asking questions is another way to keep from getting scammed. But because of low self-esteem and low confidence, many artists don’t do that. And they live in fear and they’re fearful that they [record label executives] are going to think I’m difficult. And if that’s the case, then maybe that’s not who you need to be with.
I know most people expect to hear, “When you’re going through a contract, look out for this and look out for that…” No–this is what people really need to know. A contract required an offer, someone to accept the offer and then consideration to be exchanged. Most artists think that when you hand them a piece of paper, you’re offering them, you’re giving them a contract, and you’re not, doesn’t become a contract till you say it does. When somebody hands you a piece of paper, that’s an offer. And under the law, you are expected to have negotiated that offer. Everything is negotiable.
If the other party doesn’t want to answer your question, that’s number one. If they are keeping you from getting information and for educating yourself as to what the deal points are, that’s a bad sign right there. That’s number one. Number two, they are rushing you. Also, are they charging you to pay out of pocket for services that you should not be paying for? Sometimes we have to use intuition. Sometimes we have to use our sense of discernment, and we don’t do that. I wish more artists had that kind of confidence, which is to be very protective of their art and their music and themselves.
Being hungry is one thing. You can be hungry. You can really want something, but thirsty, though is desperate. That’s how you keep from getting scammed. Stop being so thirsty.
How has streaming changed an artist’s ability to protect themselves?
What streaming has done is allowed artists to distribute their music on their own terms. They get to make whatever kind of music they want to make, and then it’s up to them to find their audience. As soon as you give more access and you open up the playing field, now you have everybody on the field.
So now there’s so much more competition, at least before, okay, there were only maybe a few hundred artists you had to compete with. Now you have millions. So artists are using all these tools, which are great, but not necessarily for their own benefit.
What should artists look out for with contracts?
A contract is going to be one of two things. It’s going to be a “work made for hire” or it’s going to be an “assignment.” If it’s an assignment, you own your master’s, but you are signing the rights to me for a period of time so that I can exploit them. If it’s a “work for hire,” because I am the one who commissioned you to record the record, make the recordings, I own the recordings. So every record contract where the artist does not own their masters is a “work made for hire”—if that contract says work made for hire, the label automatically owns the recordings.
What is the infamous 360 deal?
There used to be a time when record companies made billions of dollars selling what we call records. It started off with vinyl and then cassettes, and then CDs. And you know, CDs, depending on how long the album was, could range anywhere from $12 to $15, maybe $19 each. So they made billions of dollars selling CDs, and they were actually quite happy with this until streaming came along. So streaming then allowed people to avoid having to buy an entire album and only buy one song at a time for 99 cents on iTunes. So this changed the paradigm of the entire music industry. Fans weren’t spending any money for entire catalogs of music that they could get from Spotify, or another subscription service.
The labels income on record sales diminished significantly and became almost non-existent over time. What the records decided to do was claim that because they helped make an artist famous, they should participate in all of the revenue that you generate as an artist from any source. Touring used to be the holy grail of the music industry or of an artist’s income—that’s the one thing that the record label would never touch. Artists were becoming extremely successful and booking these million dollar tours, and the record company felt as if it hadn’t been for them, the artists wouldn’t have been successful so that they should now share in the tour revenue.
So that’s where 360 came from. It’s sort of an all around deal, which is a revenue sharing or what we call a participation deal. The label now wants to participate in all revenue. That revenue includes your touring, it includes your merchandising. It can include your music publishing, meaning from the songs you write. It could include your endorsement deals. It could include your acting deals. It could be for even a book you wrote, it doesn’t matter. The worst part about it is they’re not even helping you generate this ancillary income. In other words, you got to gig in a TV show. We want a piece of that, but we’re not going to help you get a TV show deal. So that’s why they became so problematic.
How do artists avoid the 360 deals?
As of today, that might be very, very, very hard to do. Why? Because for the most part, every deal is a 360 deal. Even though artists are making a ridiculous amount of money now streaming, they have to have millions and millions of streams in order for the label to make any money. So now what is happening is every deal is basically a 360. They’re going to participate to some extent. It’s the amount of that participation that needs to be negotiated. I’ve seen participation on a 360 anywhere from 10% to 20%.
You should negotiate that percentage and make it as small as possible. Get that number as low as you can get it down to a 10% or maybe even a 5% participation. Omit the publishing for sure. If an artist comes to the table with some clout, that artist might be able to negotiate either the percentage or the areas in which the label will participate. So they can say, “I’ll let you participate in touring and merch, but you can’t participate in endorsements or publishing.”
Do you have any final tips for artists?
The biggest thing, I would say, is you have to recognize that this is the business of making money. The issue there is, first of all, it has to be good. Second, they actually have to hear it. Everybody has access. So how do you get people to hear your stuff?
Next, if you recognize that it’s a business, I’m not going to invest in you unless you prove to me that somebody is listening to your stuff. You’ve got to give me something to work with, or I would be foolish to invest my money. What are your numbers? If they don’t see how they can make money with your music, you’re not going to get that partnership.
Have a clear understanding of success. If you love to play the drums, waking up every day and playing the drums and paying your bills and sending your kids to college and putting gas in your car and buying groceries, that’s success. And you’re doing that with your drums, whether somebody knows your name or not. You have to make a determination: Do you want to be an artist? You want to be a drummer, or you want to be a celebrity? Those are two different things. You might still reach that Beyoncé level of success, but that can’t be the reason why you get in this business.
Finally, you’ve got to really, really, really believe that what you’re doing is right. Not just what you’re doing is good, but that what you’re doing is right. Meaning, you’re doing what you’re supposed to be doing. If you maintain that belief, that’s where your confidence and your self-esteem and everything will come from.