With touring in a holding pattern, some musicians eager to get back in front of a live audience are finding the best place to book their next concert is a virtual space. The jaw-dropping visuals in Travis Scott’s “Astronomical” augmented reality concert that took place within Fortnite in April gave gamers and music fans the ability to swim underwater and float through space as a giant avatar of Scott loomed above them. It was an experience that drew over 12 million people to the title and has since prompted artists to tap their managers, agents and lawyers to get them in the game.
The move to virtual concert spaces, with their unlimited means of expression and creativity, “makes total sense,” says New York-based attorney David Chidekel, a partner at Early Sullivan Wright Gizer & McRae. “Music artists who either love gaming or are loved by gamers will certainly want to leverage that to distribute their content and activate fan engagement,” adds the attorney who has represented video game publishers, AR/VR technology companies and celebrities who endorse and participate in gaming. “It is instantaneous and has a massive existing global audience desperate for new and exciting musical content as part of their overall gaming experience.”
Virtual fame has its pitfalls, however, and Billboard spoke to several top legal experts in the gaming world who outlined six key issues that artists and their representatives need to understand before stepping into the arena.
Know Your Game (And How To Play It)
Sean Kane, co-chair of the Interactive Entertainment Group at Frankfurt Kurnit Klein & Selz, who represented Fortnite developer Epic Games in the deals it struck for in-game concerts by Scott, Marshmello, Diplo and deadmau5, says the success of these virtual shows has led to getting a lot of calls from industry executives saying, “‘We can deliver all of these sorts of artists — can you connect us with your clients?’”
Among the potential upsides they see are audiences thousands of times larger than that of any stadium show — and presumably a corresponding jump in streaming and sales. But Kane warns that artists who ally themselves with a game that doesn’t mesh with their brand (a gun control advocate performing in Fortnite, for example) risk alienating the audience they want to impress. The same goes for an artist who joins a game online in an attempt at self-promotion and turns out to be a lousy player. Dedicated gamers do not tolerate inauthenticity, says David Schulman, who heads Greenberg Traurig’s video game and esports group, adding, “If [an artist] gets pwned” — gamer-speak for “trounced” — “every time they enter the game, it could actually negatively impact their image within that gaming community,” he says. “It will hit the wrong note.”
Control Your Avatar
Eric German, partner at Mitchell Silberberg & Knupp says that rule one of virtual appearances is for an artist’s representation to ensure in advance that the clients is aware and comfortable with how her or his avatar will be depicted and how it will behave throughout the game.
When Gwen Stefani and No Doubt signed on to be depicted in Activision’s Band Hero, they had no idea that users would be able to unlock the ability to get one group to sing another’s songs. When players chose No Doubt to perform Village People’s “YMCA,” Stefani’s avatar sang in a male voice while her bandmates performed “awkward and embarrassing” dance moves, according to a lawsuit later filed by the band.
German, who specializes in technology business transactions, says it’s imperative that an artist’s advisers understand every facet of a game, retain as much control as possible over the depiction and use of the artist’s avatar and ensure the avatar’s actions will be consistent with the artist’s brand. “Whether an artist is going to be virtually displayed as a giant purple dragon, a muscle-bound dragon-slaying warrior or a purple-cloaked Merlin-type wizard behind a turntable with a dragon by his side, the ‘character’ needs to be something that makes sense for that artist and will resonate with their fans,” says German. “A celebrity would want to make sure that the look, character and even color scheme are consistent with their carefully orchestrated persona.”
It’s especially important for an artist’s contract to specify that he or she will be an integral part of creating and developing the avatar, says Frankfurt Kurnit’s Kane, and will see and approve the avatar in advance of the game’s launch.
“The avatar can live on forever,” says Kane, “so you need to control that image.”
Manage Your Avatar’s Environment
A contract should also stipulate that the artist must be comfortable with his or her avatar’s in-game behavior, as well as the endorsement ― direct or implied — of any products, brands or affiliations that appear in the game. Early Sullivan’s Chidekel says that displays of products or even political innuendo expressed in levels of the game where an artist’s avatar appears might give players the impression that they’re sanctioned by the artist. He adds that a strong contract will specify what the avatar can be used to promote and will also include an exhaustive list of prohibited uses. Typically, he proposes provisions that specify that endorsements for outside products or services require prior written approval.
“If you’re the talent, you want it to be as narrow and limited as possible,” says Chidekel. “Whatever’s important to the particular artist — even if it’s that they don’t want their avatar to jump around and look goofy — you want to have as much control as possible over how it’s used in the game, how it’s displayed and what products it appears to promote.”
Insist On Liability Protection
Just as performers demand immunity from liability at live venues, they must do the same in virtual realms, says Chidekel. “If somebody claims that they were using the video game and lost their eyesight, or that it gave them a mental illness, you don’t want to have anything to do with that,” says Chidekel. In 2016, for example, game developers Niantic and Nintendo were hit with a class action trespassing lawsuit over their wildly popular Pokémon Go game after property owners complained that their homes had been designated Pokémon Gyms and Pokéstops, which resulted in players invading their property in order to advance in the game. (No musicians or other artists were involved.) The lawsuit settled three years later, with Niantic establishing a system to use reasonable efforts to remove stops or gyms when requested as well as make other location adjustments and concessions.
Beware The Bite of Reputational Clauses
Celebrity gamer Dr Disrespect, the tag of Herschel “Guy” Beahm IV, found out the hard way that sites like Twitch are now quick to enforce what are known in the legal world as reputational provisions. These provisions expand a gaming platform’s ability to terminate a player who is deemed to have committed fraud or an illegal act or to have demonstrated dishonesty or moral turpitude.
Even though Dr Disrespect’s loud and abrasive in-game persona helped him amass 4 million followers on Twitch — and led to a reported eight-figure deal to stream exclusively on the platform — in June he was suddenly banned. Although Twitch has yet to reveal the specific reason for its action, the company released a statement saying, “We take appropriate action when we have evidence that a streamer has acted in violation of our community guidelines or terms of service. These apply to all streamers regardless of status or prominence in the community.”
The ban sent shock waves through the industry, says Greenberg Traurig’s Schulman, whose clients include Skillshot Media; Mike Tyson’s licensing and branding company, Tyson Ranch; and Prophecy Games. He says artists need to be aware that these standard contract clauses, which are purposely drafted with vague and broad language, are being implemented to make negative actions or comments in the virtual or real world instant deal breakers.
“Licenses for use of name and likeness always have provisions that allow for termination in the event a party commits an act of moral turpitude, dishonesty or conduct that is deemed harmful to a party’s reputation,” says Schulman. But as platforms such as Twitch step up their efforts to create safer spaces and reduce harassment and hateful conduct, “it’s just that lately you’re seeing parties exercise those rights,” he says. “It’s a sign of the times.”
The Payoffs Can Be Great, But Don’t Expect A Percentage
“In terms of the range of what people get paid, I think the sky’s the limit,” says German, whose clients include Five Finger Death Punch, AWOLnation, Bad Wolves, Asking Alexandria, Ice Nine Kills and The HU.
Artists can expect a flat-fee guarantee that can range between five and seven figures. The amount depends on how popular an artist is to the demographics of the game. Despite the fact that many artists leave their skins and merch in the games for players to wear, typical deals don’t involve a cut of those sales, nor are they tied to player attendance numbers. These are considered ancillary virtual uses, which are typically “baked into the cost of the performance itself,” says Kane, who adds that “most game developers and publishers would shy away from that sort of [deal] because it adds unnecessary complexity.”