American Idol

Since 19 and Fox have declined to respond to questions about their contract with Clarkson and the other finalists, or the extent to which they control their careers, perhaps the best place to look is the public record.

Before the Sept. 11 anniversary, the New York Times reported that Clarkson wanted to withdraw from a scheduled appearance singing “The Star-Spangled Banner” at a commemoration held at the Lincoln Memorial in Washington. Friends and critics had reportedly questioned turning a somber occasion of national mourning into a promotional opportunity. Clarkson was quoted as saying, “I think it is a bad idea … If anybody thinks I’m trying to market anything, well, that’s awful … I am not going to do it.”

In the same Times story, Tom Ennis of 19 Management said that “he would allay Ms. Clarkson’s concerns and that she would sing the anthem on Sept. 11.” She sang.

Clarkson probably had no choice. According to the version of the contract one entertainment lawyer posted to the Internet, Fuller and his company own the names, likenesses, voices and personal histories of the “Idol” finalists, “in or in connection with” the show, forever. 19 Group can use that material however it wants, even if it’s false, embarrassing or damaging.

If contestants reveal anything to anyone about the workings of the show or the contract they signed, they’re liable for damages “in excess of $5 million.” Their recording, management and merchandising companies, needless to say, are all owned by 19 Group — a fundamental conflict of interest familiar to anyone who has studied the machinations of the music biz.

For some observers of the business, the “Idol” contract doesn’t seem like that big a deal. Industry veteran Bobby Poe, of record label and management company Pop Music Records, argues that the massive exposure Clarkson got from her TV appearances probably made this one-sided contract worthwhile.

“Kelly Clarkson has immediately been catapulted to the rank of media superstar,” Poe says. “If she delivers with a viable recording career, then she will have all the leverage she will ever need to write her own ticket in the near future.”

Kenneth Freundlich, a prominent Los Angeles entertainment lawyer who has examined the 14-page contract that was presumably signed by all the “American Idol” contestants, says, however, that Clarkson and her fellow finalists are “surrounded by what appears to be the worst rendition of the industry, after being voted on by a public with no knowledge of the story within the story.” How many of the millions of viewers who voted for Clarkson or any other contestant, he wonders, would willingly have signed their own sons and daughters up for such a career of music-industry servitude?

Simon Fuller (not to be confused with acerbic “American Idol” judge Simon Cowell), the 42-year-old impresario of 19 Group, is the latest in a long line of British pop Svengali figures, dating back at least to Larry Parnes in the 1950s.

Parnes specialized in discovering attractive teenage boys, grooming them for the British faux rock ‘n’ roll market, then assimilating them into traditional showbiz following the Elvis Presley model. (Of course Elvis was an authentic rock ‘n’ roller who was “self-created,” and as a result never had the rocker fully assimilated out of him, but that’s a different story.) Among Parnes’ stable of “stars” were Tommy Steele, Marty Wilde and Billy Fury, along with less luminous figures like Dickie Pride, Duffy Power and Johnny Gentle.

Fuller’s career as a manager began in 1985 when he established 19 Management, named after the company’s first single release, Paul Hardcastle’s techno-pop hit “19.” According to the company’s Web site, “’19′ has attracted a unique collection of expertise in people who work together to integrate and leverage activity across television, music, film, merchandising, music publishing, recording, artist/writer and producer management, sponsorship and promotion,” resulting “in the creation of over 50 No. 1 singles and 25 No. 1 albums.” Fuller created and managed the Spice Girls and the global television and pop music “brand” that is S Club 7.

“Branding” is what the deeply tanned and black-bouffanted Fuller — who has been invited to the White House later this month by President Bush — is all about. Lucian Grainge, chairman and chief executive of Universal Music U.K., recently told the Financial Times:

“[Fuller] has redefined the role of a manager for the 21st century. He treats pop acts as brands, to be exploited over different media, rather than performers who make money only by selling records and playing concerts. He’s a genius — he makes everyone else look like complete amateurs.”

The phenomenon that is “American Idol” began three years ago in the U.K. as “Pop Idol,” conceived and produced by 19 in association with Fremantle Media. “Pop Idol” and “American Idol” followed the same formula: mass auditions of over 10,000 hopefuls pared down to 50 contestants, then winnowed down to a final pair by viewers voting over the phone. On-air judges — in the U.K., Cowell was joined by Nicki Chapman, Pete Waterman and Dr. Fox; in the U.S. it was Cowell, Paula Abdul and Randy Jackson — critiqued the performances and became personalities in their own right.

In the February “Pop Idol” finale between Gareth Gates and Will Young, almost 9 million people voted, and Young, a 23-year-old student from Hungerford, was anointed as Britain’s newest superstar. “American Idol’s” Sept. 4 finale, matching Clarkson against the preternaturally cheerful Justin Guarini, drew 22.5 million viewers and delivered Fox’s highest rated nonsports night ever among young adults.

So Clarkson is on top of the world with a record deal, management contract, public performances and nothing but blue skies ahead, right? Perhaps. But let’s have a look at some of the more exciting fine print in the “American Idol” contestant contract, which was posted on the “Pho” e-mail group by Los Angeles music attorney Gary Fine.

Fine came into possession of the contract when the mother of a young man who was interested in being on the show brought it in for his perusal. The contract had been presented on a “take it or leave it” basis and the man had been given a couple of hours to make a decision. Fine told him not to sign.

“1. I hereby consent to Producer’s filming, taping and/or recording of me for use in and in connection with the Series … I acknowledge and agree that Producer will be the sole and exclusive owner of all rights and material filmed, taped, and/or recorded pursuant to this Agreement.

“… I hereby grant to Producer the unconditional right throughout the universe in perpetuity to use, simulate or portray (and to authorize others to do so) or to refrain from using, simulating or portraying, my name, likeness (whether photographic or otherwise), voice, singing voice, personality, personal identification or personal experiences, my life story, biographical data, incidents, situations and events which heretofore occurred or hereafter occur, including without limitation the right to use, or to authorize others to use any of the foregoing in or in connection with the Series …

“… I understand that, in and in connection with the Series, I may reveal and/or relate, and other parties … may reveal and/or relate information about me of a personal, private, intimate, surprising, defamatory, disparaging, embarrassing or unfavorable nature, that may be factual and/or fictional.”

In other words, the producers can record any and all behavior of the contestant “in and in connection with the series” and use the contestant’s likeness, voice and any or all biographical material, whether true or false, any way they want to. The producers own all this material forever and “throughout the universe.”

“2. Confidentiality/Disclosures: Any and all information disclosed to or obtained by me concerning or relating to the Series, the contestants, the events contained in the Series, the outcome of the Series and/or contest, Producer, the Network and the terms and conditions of this Agreement shall be strictly confidential.

” … I acknowledge that any disclosure of such information will constitute a material breach of this Agreement and will cause Producer and the Network substantial and irreparable Injury and will cause substantial damages in excess of Five Million Dollars ($5,000,000), entitling Producer (and/or the Network, as a third party beneficiary of this provision) to, among other things: (a) injunctive or other equitable relief, without posting any bond, to prevent and/or cure any breach or threatened breach of this paragraph by me; (b) recovery or disgorgement of the monies and other consideration, if any, I received in connection with such disclosure; (c) forfeiture of any and all cash and prizes that I may have been entitled to for participating in the Series; and (d) recovery of the Producer’s and/or the Network’s damages, including but not limited to, lost profits and other consequential damages, to the extent permitted by law, and attorneys’ fees and court costs incurred to enforce this paragraph.”

Absolutely all information regarding the show and this contract is confidential. If the contestant breaches this confidentiality it will cause damages assumed to be in excess of $5 million. The producers can recover such damages, anything gained by the contestant from such a disclosure, the contestant’s winnings from the show and any actual additional damages caused by the disclosure.

“5. Future Agreements: Notwithstanding the other provisions of this Section C, I understand and agree that in the event I am one of the final ten (10) contestants in the Competition, I will be required to enter into the following agreements: (a) an agreement with 19 Recordings Ltd. (or an affiliated company) for my exclusive services as a recording artist; (b) an agreement with 19 Merchandising Ltd. for the use of my name, likeness biography in connection with advertising, endorsement, merchandising and sponsorship; and (c) an agreement with 19 Management Ltd. for the management of my career as an artist. I understand and agree that, unless I am the individual selected as the winner of the Competition, such agreements shall become fully effective only at the election of 19 Recordings Ltd., 19 Merchandising Ltd. and/or 19 Management Ltd.”

Each of the 10 finalists was required to enter into agreements exclusively with 19 Recordings as recording artist; 19 Merchandising for advertising, endorsements, sponsorships and merchandising; and 19 Management for the management of his or her career. All this was entirely at the option of the 19 companies, save for the winner, who was guaranteed this result.

“6. ‘World Idol’: I acknowledge and agree that, should I win the Competition and subject to my availability at the time of the Producer’s request, I shall participate in a ‘World Idol’ program where winners/contestants from the ‘Pop Idol’ and/or ‘American Idol’ competition in other countries or other versions of the Series shall compete against each other and, provided that I appear on the ‘World Idol’ program, I agree to accept a total fee of One Thousand Four Hundred Dollars ($1,400.00) in full and final consideration for my appearance in such program and the grant of all rights in relation thereto on the same terms and conditions set out hereunder.”

This one’s amazing. Basically, if I win “American Idol,” I promise to appear on the “World Idol” show — for a total fee of $1,400! All the provisions of this contract will apply to that show as well.

It’s clear that, in the words of Gary Fine, this is a “particularly aggressive” contract. But isn’t this par for the course? Isn’t this the way the business works?

That argument can certainly be made, although you won’t hear it from Fox, 19′s home office in England or 19′s P.R. representatives in the U.S., none of whom responded to numerous inquiries regarding the “Idol” contestant contract. Bobby Poe, who recently became the manager for Jessica Garlick, a finalist on the U.K.’s “Pop Idol” (after 19 declined its option), explains how the show helped launch his client’s career.

“The attention Jessica got on ‘Pop Idol’ led to her being chosen as the U.K.’s entry in the Eurovision competition last spring,” he says. It also led to Garlick’s single on Columbia/Sony, which went to No. 13 on the U.K. charts — not bad for a previously unknown 21-year-old from Wales. “I would say, in this specific case, the massive exposure far outweighs the initial, let’s say, unbalanced terms of the contract,” Poe concludes.

If exposure is the be-all and end-all, Poe is undoubtedly right. But what if Clarkson, Garlick, Guarini or any of these other young artists have other goals, including some input into the direction of their careers?

“The artist-manager relationship is the most important one in connection with the artist’s career,” says Gary Fine. “The artist needs someone fighting for them with regard to certain career decisions. The cozy relationship between 19 Management Ltd. and 19 Recordings Ltd. would create serious conflicts, and almost certainly remove any real ability for 19 Management to support tough decisions on behalf of their artists if the sister record company is opposed to them.

“Name and likeness provisions, merchandising and product endorsements are very sensitive issues for artists,” Fine goes on. “The problem here is exacerbated because the artist is under an agreement with 19 Merchandising in addition to 19 Recordings and 19 Management. Given what a brilliant marketing guy Simon is, and the fact that his track record would indicate that money is his primary interest, I would be uncomfortable giving this marketer the leeway he is entitled to under these provisions.”

Fine’s fellow L.A. music attorney Kenneth Freundlich, who was quoted above, is also highly critical of the contract and its ramifications. He notes that the contract omits a routine provision: the advice to consult your own lawyer or forever waive your right to complain later that you didn’t. “Perhaps this was left out so as not to suggest to a contestant something she might not otherwise have thought of,” he says. He wonders whether the absence of this provision might make the “American Idol” contract ultimately unenforceable.

“There is a place for a show like this to reap benefit from its winners,” Freundlich continues. “But the artist’s career should be pure free agency from the start. These kids, like most artists, will get one shot at it. It should be the best shot that their independent representatives can find and negotiate, not one thrust at them by the show.”

Simon Fuller and company have already won big, earning a rumored $1 million per episode from Fox, along with additional money from the show’s telephone-voting system and various sponsorship deals. A compilation album featuring the 10 “American Idol” finalists will be released next month, with DVD and videocassette to follow. A Fox special from Las Vegas is set for broadcast Sept. 23, while a 28-city tour for the finalists will kick off Oct. 8 in San Diego.

The Financial Times has reported that Clarkson and Guarini will appear in a film written by Kim Fuller, who happens to be Simon’s brother. “Before Your Love,” Clarkson’s first single, was co-written by Cathy Dennis, a songwriter managed by — you guessed it — Simon Fuller.