Common use of Promotional Clause in Contracts

Promotional. An engager may make and distribute a recording through any media (including but not limited to social media channels), providing that such usage is for its own promotional purposes and strictly non- commercial, i.e. no financial profit is generated for the engager or any third party by the distribution or other exploitation of the recording. Such promotional recordings must be limited to a maximum of 20 minutes’ aggregate length, and no single musical piece, however short, may be used in its entirety. The engager may share recording excerpts with external partners that have a direct connection with the promotion (e.g. festivals, venues, collaborating artists, composers) for such partners’ own non-commercial promotional purposes, provided the engager retains copyright in the recording. Where feasible, the engager will inform the musician of the intention to record under the Permitted Exceptions clause at the time of offering the engagement, and before it is accepted, if it is intended to record or broadcast any part of the work offered. Where this has not been feasible (for instance, in cases where an opportunity to create a promotional recording only presents itself after personnel for the project have been fixed) the engager must give reasonable advance notice of such recording to musicians. The engager must also ensure that a record of all participating musicians is kept, such that this can be used as the basis for the future distribution of payment to musicians in the event of subsequent commercial usage. Recordings made under the terms of the Permitted Exceptions shall not be used by the engager to evaluate the capabilities of any musician engaged under this Agreement, except at the request of the musician. Third-Party Commissions: Where a third party other than the engaging orchestra (e.g. a festival or venue engaging the orchestra for a performance, or a guest conductor or soloist) wishes to commission and retain the copyright in an archive or promotional recording, the engager shall ensure that musicians are remunerated with an appropriate additional fee, either through negotiation with the union or based on the provisions of an existing and appropriate Collective Agreement (e.g. the Live Recording Session Fee currently set out at clause 8.1 of the BPI/MU Agreement). For the avoidance of doubt, where a recording is made by a third party in partnership with the engaging orchestra and the third party agrees that the copyright in the recording will be held by the engaging orchestra, the recording may take place under the Permitted Exceptions clauses above.