non-disparagement clause

[Paolo]

I’ve been reading through several agreements/contracts from libraries who I’ve been considering whether to join.

One contract has a “non-disparagement” clause that basically states if the composer does/says something which would reasonably bring unfavorable publicity to this library, that the composer agrees to pay the library $7,000 (the estimated loss of money) for each occurrence.

There is no detailed description of what is considered an “offense.”

I’m sure it would never be an issue on my end – but I wonder if I was already a composer with them would this post incur the $7,000 fine?

I would like to hear your thoughts on this clause.

Thanks.

[Paolo]

b-bump

[Art Munson]

One contract has a “non-disparagement” clause that basically states if the composer does/says something which would reasonably bring unfavorable publicity to this library, that the composer agrees to pay the library $7,000 (the estimated loss of money) for each occurrence.

Fascinating topic. Enforcement would be tricky I would imagine, depending on location. Would love to hear a legal view on this.

[MichaelL]

Would love to hear a legal view on this.

I get the hint. 😀

Paolo please send me a PM with the library’s name. I don’t want to risk 7K if I happen to be in that library.

[Paolo]

will do – thanks. I’ll send it to you in next few minutes.

[MichaelL]

I won’t comment on the terms of clause itself, or the nature of the clause. I don’t know how it reads in the context of the contract.

Legally, you can write anything you want into a contract and if both parties sign the contract, they are bound by its terms.

The issue with disparagement and those sorts of claims is that others reading or hearing the disparaging comments actually have to believe them, and it has to result in some, again, provable harm. That’s a potential issue here, because when someone goes on a rant, I consider the source first and more often than don’t dismiss the complaint.

Establishing provable damages is always a challenge. But, this type of clause may act as a “confession of judgment” in which you are agreeing to the estimated damages ahead of time.

Here are my thoughts on the general concept and why a library would put that kind of clause into its contract….

Forums are a double-edged sword. Sometimes they provide good information that people can use to develop their careers, etc.

On the other hand, forums sometimes (more often than not) become a soapbox, for angry people who have an agenda, or for unsuccessful people looking for someone to blame (other than themselves) for their lack of success.

In my opinion, there are too many variables that go into succeeding in this business, many of which rest squarely on the composers’ shoulders, for them to blame, or disparage a library when things aren’t going well.

It is a false assumption that success in library A should translate into success in library B, or that success in one business model should translate into success in another. That’s not the way it works, because all things are not equal.

The clause would be a non-issue if writers learned to share acurate factual information (truth is always a defense) about a library in a non-emotional way, without resorting to disparaging the library.

@Paolo…I wouldn’t be concerned with the clause. I think your good judgment would prevent you from entering the danger zone.

[Paolo]

Thank you Michael for taking the time to explain the legal aspects of a clause like this.

why a library would put that kind of clause into its contract….

You hit it on the head – this was at the core of my concern but didn’t know this was the question I needed to ask. Your take on this – why the library would put it their contract – makes total sense and I no longer feel concerned.

[MichaelL]

Paolo…you’re quite welcome.

As I said, I haven’t read the clause in context. But, I’m guessing that it was reviewed by counsel for its effectiveness and enforceability.

Naively, as I came up in the business I was under the impression that most musicians were cool people. Sadly, especially on forums, it’s apparent that some people regularly cross the boundaries of acceptable conduct, especially if they are anonymous.

Most often it is because they have unrealistic expectations of the business, and a lack of perspective regarding the quality of their own work. As John Clease would point out…they don’t know what they don’t know and everyone else gets the blame.

Consider this…that clause didn’t just arrive in a vacuum, or come out of no where. People are far more confrontational now than they used to be, which I think is a widespread cultural problem. The library in question wouldn’t have put that clause in its contract if it didn’t believe it needed to protect itself in some manner.

I am quite confident that you are a mature level-headed person with who will not engage in the kind of thuggish behavior that the clause is apparently designed to discourage.

[Advice]

Actually, I don’t blame libraries for putting in such a clause having read so many posts right here on MLR, even if the specific wording is an issue. As Michael pointed out, public forums become playgrounds for rants or all types, some with non-truths, some based on unrealistic expectations, some just grumbly people who blame the library for lack of success.

Even if the clause bothers you, if you conduct yourself like a professional, you’ll never really have to worry about the clause biting you. JMHO

[Author]

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