From #MeToo to #WeTogether: Music Industry Attorneys Call for Action (Guest Op-Ed)

The #MeToo movement has started a worldwide conversation, bringing awareness and contemplation to workplace protocol. It has been a deeply inspiring moment. At its essence, MeToo is an acknowledgment of a common experience. It started with women building community around past sexual harassment, assault and abuse and has morphed into a desire for corrective action and an open dialog on gender bias — and ultimately identity bias which extends far beyond the battle of the sexes. In talking to executives, artists, managers, agents, lawyers, producers, friends, neighbors and colleagues, it is clear that there is more consensus than there is controversy. The days of “boys will be boys” double standards, reckless behavior, the ethos of excess, outright abuses, blatant duplicity, insufficient culpability where women awarded themselves imaginary “merit badges” for the “skill” of deflecting the unwanted advance and were shamed and/or abused when they weren’t successful are coming to a close. Most agree that the voices of the harassed should no longer be silenced, diminished, distorted or unacknowledged. All of us expect and deserve more and can do better.

The industry is ready to grasp this moment and use this newfound enlightenment to chase the many shadows of harassment from the recesses of the music industry. It is time to change the rules, not just by raising our voices in a chorus of condemnation, but by taking concrete action.

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As attorneys who help craft deals and set clients’ internal policy agenda, and as women in a position to make a difference, we are putting in the work toward real and long-lasting change. To that end, we would like invite the esteemed attorneys at law in our industry who share our objectives and feel like they have an obligation to their clients, and the business as a whole, to join us in the push to bring the industry into a new era where we are all free to pursue careers without having to deflect the bows and arrows of harassment and abuse along the way.

We believe that the first step is to make a clear statement of standards and expectations in all service agreements across the music industry including, without limitation, artist agreements, employee agreements, management and agency agreements, production related agreements (producer, mixer, side artists) and employee manuals which includes specific language that declares a zero-tolerance policy on sexual harassment and discrimination and a specific protocol to address violations. This may at first seem controversial and ripe for abuse, but we argue that it is quite the opposite — every agreement done in this business sets forth the minimum expectations of each of the parties for the business relationship. There are warranties in every agreement where the parties promise to perform their obligations, not to lie, not to commit copyright infringement, how to deliver a record, to act in good faith and so on — why shouldn’t there be something in the agreement itself that sets forth some basis for proper behavior and general decency?

Attorneys are often the catalysts for change in our industry. There are countless clauses, business customs and protocols that are only standard practice today because good lawyers fought tooth and nail for them. We think this issue is worth the fight and a call to action is in order. Change only happens when a community does something different and every attorney knows that language matters. To knit lasting change into the fabric of the music industry and to make #MeToo a thing of the past, we ask each of our esteemed colleagues to negotiate hard to get anti-harassment language woven into all service agreements, to make it part of the basic boilerplate and/or the standard asks in any negotiation. Although this might seem like a big ask of our colleagues, the reality is that the minimum standard has already been raised by New York and California both of which have sweeping anti-harassment and anti-sexual discrimination legislation (which amongst other things, mandates anti-sexual harassment training for companies big and small, essentially outlaws obstruction and concealment of claims and expands the scope of employers’ liability and requirements for action); so instead of just working with clients’ to comply with the law, why not view this moment in time to imagine and implement a more integrated and diverse industry? Let’s collectively seize the opportunity and set the expectation that all service providers, employees, independent contractors, recording artists, writers, and other personnel will be treated with basic dignity and that a harassment and abuse free environment is a necessity not a luxury.

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In addition to complying with the minimum standards set by New York and California and adding the appropriate warranties and representations in the documents themselves along with a protocol of how to report abuses, we recommend music industry companies and law firms adopt the following internal practices:

·    Provide customized anti-harassment and anti-bias training to all employees or personnel involved in the production, exhibition, and distribution of music, including, without limitation management companies, agencies, business managers, PR companies.

·    Be pro-active in preventing sexual harassment in the studio, the boardroom, the concert hall and everywhere else. Create a healthy workplace culture where sexual harassment is inconceivable.

·    Create multiple reporting pathways that remove barriers and intimidation to reporting abuse.

·    Publish resources and reporting options.

·    Make instances of harassment an express exception to NDAs and arbitration provisions.

·    Ensure reports of harassment are heard and treated seriously.

·    Be vigilant for evidence of retaliation against those who report harassment.

·    Educate those in positions of authority to be aware of power relationships and be cognizant of them in creating safe environments for meetings and recording sessions.

·    Encourage the harmed to report harassment promptly to the appropriate authority, to thoroughly document the abuse and to maintain any pertinent text messages or photos. If the harassment is not a crime, urge them to speak to the offender in a safe, controlled setting with an impartial witness present to let them know the specific behavior that made them uncomfortable, and to ask the offender to stop.

·    Promote the concept that reporting harassment is not a sign of weakness but rather a sign of strength, and that the person reporting is doing the company a service by advising them of potentially destructive and reckless behavior.

·    Those who witness others being harassed should speak up for the harassed when they are uncomfortable doing so themselves, and report it to a designated reporting recipient. Those in a position of authority who witness such behavior should document what they witnessed and promptly engage the harasser in a candid discussion of the harmful behavior while making it clear that such behavior must stop.

·    Last but not least, we ask that our colleagues work with us to add to this list and join with us to codify and exemplify best practices on anti-sexual harassment and abuse.

For too long the business has normalized sexual predatory, outrageous and/or degrading behavior, allowing it to persist without imposing consequences. If we as an industry want change, then the entire industry needs to adopt policies that are loud, clear and prominent, with serious consequences for violators; we all need to do the work; we all need to have the hard conversations, to face the realities of the past and set the stage for the future we all want — but it takes action. We have the will. We have the means. We have the momentum and more importantly, we have the responsibility. #WeTogether can make working in the industry safe and harassment free for all and as a result, the sound of the music will be even better.

Monika Tashman is a partner at Fox Rothschild LLP; Dina LaPolt is owner of LaPolt Law PC; Debbie White is deputy chair, music industry at Loeb & Loeb LLP; and Jessie Winkler is an attorney at LaPolt Law PC.

LaPolt will participate in the Billboard Live Music Summit and Awards 2018 panel “Out of Balance: Does the Touring Business Need an Inclusivity Rider?” on Wednesday at 3:05 p.m. The Billboard Live Music Summit and Awards 2018 will be held Tuesday and Wednesday at the Montage Beverly Hills in Beverly Hills, California. For more information, visit billboardevents.com