UNCONSCIONABLE CONTRACTS IN THE MUSIC INDUSTRY: The Need for New Legal Relationships
|Author: ||Reece-Davies, Patrisha|
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This work is an economics and behavioral-based study of contract law and its effectiveness toward those engaged in long term, contractual relationships in the music industry. This high-profile industry demonstrates a need for certain developments in modern, legal relationship governance. The author perceives this as a need for English contract law to develop a stand alone doctrine of unconscionably constructed contracts.
Research shows that problems may lie in the way in which hybrid versions of legal principles, such as restraint of trade, have been formulated over time. Additionally the way these legal principles are communicated to relevant individuals and business communities leaves them open to ignorance or misinterpretation. Furthermore, social and economic characteristics which shape and drive the behavior of parties to long-term contracts do not seem to be sufficiently well understood, studied or taken into account in the arena of the courts.
Utilizing the wider scope of social sciences in examining legally bounded interaction has enriched the discussion about the opportunities that may exist (a) to understand the real human issues which give rise to cases in law and (b) to provide clearer judicial governance over the future formation and conduct of long-term contractual relationships.
“This is an important and significant contribution to the understanding of the Common Law rules of the law of contract as they apply to a peculiar variety of contract, namely that between music-industry professionals and their aspiring, but often unsuccessful, clients. The author applies both legal and social science-based analysis to this variety of contractual relationship to good effect ... Dr. Reece-Davies develops the theory that the nature of the industry and its particular characteristics have a standard response-forming effect. It’s her argument that as a result of this tendency, many of the relational disputes that tend to arise between artistes and their management teams are entirely predictable ... and taking [into] account of theories on the vulnerability and inexperience of the artistes at the time they first enter into a management contract, and theories on the need for mutual cooperation in long-term relational contracts ...” – (from the Preface) Professor David Oughton, De Montfort University, Leicester
“This work deals with the potentially unequal power relationships between employer and artiste in the music industry. The work reviews the legal concept of unconscionability as it applies to (especially long term) contracts between music industry professionals and aspiring or established artistes ... The importance of this work lies in its highlighting a gap that has already been plugged in other forms of business and commercial law. Modern commercial activity is sufficiently dynamic that it cannot just rely on the slow evolutionary nature of common law alone. Dr. Reece-Davies’ work outlines a framework for constructing contracts that deal with unconscionability. Central to this framework is the need to address the key problem of inequality of bargaining power ...” – Professor Michael Santiago, Open University
“Dr. Reece-Davies has, with considerable success and aplomb, succeeded in bringing together the oft-linked but insufficiently integrated principles of unconscionability in equity and restraint of trade at common law ... She is innovative in at least beginning the process of delineating the structure which might be adopted in the future for the evaluation of whether a contract was ‘unconscionability constructed’ and in doing so combats the charge that to move the law in this direction would lead to a ‘wilderness of single instances’ decided on an arbitrary and uncertain basis ... There is no doubt that in academic terms, this is a thoughtful, interesting and skillfully constructed work ...” – Professor Martin Davis, Law School, De Montfort University, Leicester
Table of Contents
Table of Cases
Preface by David Oughton
1. Introduction: The Anthropogenic Approach
2. Unconscionability – A Starting Point
3. Advices and Influences
4. Relevant Cases of Undue Influence
5. Relevant Developments in the Doctrine of Restraint of Trade
6. Standard Form Contracts and Music Industry Relationships
7. Academic Approaches
8. Character Observations
9. A Hypothetical Doctrine of Unconscionably Constructed Contracts
10. The Principle and Operation of the Hypothetical Doctrine of Unconscionably Constructed Contracts
11. The Principle and Operation of Hypothetical Doctrine of Unconscionably Constructed Contracts – continued
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