Update The New Orchard
Update: Valley Media, which was pretty much the company The Orchard turned to when it wanted to try to unload your CDs for "Distribution" went bankrupt. Some idiot judge decided that there was NOT a "consignment" contract in place between The Orchard (and a zillion other labels of varying sizes) and thus, all those CDs belonged to Valley Media (which is patently false, but it's the US Court System, where truth is not always #1). (*) Thus, YOUR CDs, most likely, got sold off in large lots to some re-seller for pennies on the dollar so that the BIG-name people who lent Valley Media money, or supplied them with stuff, could get their money back. You, of course, are SOL. Any questions? Read on.
(*) Which is not to say that other systems where both Truth and the Law are not always #1, but it's hardly ideal, eh?
Update: Richard G[mumble], the man behind the Orchard, has started up "OWIE", which is an even worse deal, with the artist paying $$$ up-front, and the contract is equally sucky, but I'm not even bothering to dissect it. Don't go for it. Any questions? Read on.
In this article, we examine The Orchard and their contract.
The Orchard has had a turbulent history, and is often dicussed at-length in various independent music forums. You would do well to investigate further before signing an agreement with them.
The basic Premise seems so good -- An on-line networked application that takes care of much of the grungy parts of a Music Distributor, so that The Orchard can focus on the niche market of Independent artists currently being mostly ignored (or, rather, suppressed) by the Major Labels.
What can go wrong?
Well, for starters, they've changed the terms of their contract more often than some drummers change their underwear. And, in every one of them, there are major problems that make me tell any artist I know: Don't sign it.
What's really disgusting is that thousands of artists have sent in their CDs to this company, and very very very few have ever gotten a dime out of it. Please feel free to email me your experience. I'd be happy to keep track and give a more precise percentage.
Now, I'm not a lawyer. This is not legal advice. I'm probably even completely wrong in at least one of my statements below. But there are enough places where I'm right, and any one of them should make an independent artist run away screaming from this contract.
Any questions? Read on.
On to the dissection of The Orchard's contract:
>WELCOME TO THE ORCHARD: You are entering a special place where dreams live >and hopes grow. In order for it to work we must have an agreement, so here it is! You are a sucker. We have a contract here so long and complicated you probably won't even bother to read it before you sign it. We state as a fact that we need this monster contract. Aside: The Orchard hasn't paid hardly any independent musicians a single dime.© 2002 Richard Lynch, No Genre
In contrast, CDBaby has no contract, and has paid out over $2,000,000 (yes, 2 MILLION dollars) (yes, PAID OUT) to indie musicians.
So much for the "need" for a contract. >We agree to provide You throughout the Territory and during the Sales >Period with listing of your Recordings in E-Stores during the Term. We will >pay you Seventy (70%) percent of our Net Income, accounted for quarterly >(please see www.theorchard.com for regularly updated Accounting and Payment >Policies), which directly results from sales of any of your Recordings. You If I have to see your web-site for "regularly updated Accounting and Payment Policies", and you can change those policies, exactly *WHAT* is change-able and un-change-able in this contract? Do we even really *HAVE* a contract, if you can arbitrarily alter it on a whim by changing its terms on your web-site? I don't call that a contract. I call that exploitation. >grant to us throughout the Territory during the Sales Period the >NON-EXCLUSIVE rights to sell, copy, sublicense, distribute and otherwise Bzzzzzt. No, you don't copy my stuff and sell it, and certainly not sub-license! I can stop reading right here -- It's a contract I won't sign. >exploit any and all of your Recordings by any and all means and media >(whether now known or existing in the future), including, without >limitation, the non-exclusive rights to sell, distribute and otherwise >exploit any and all of your Recordings throughout E-Stores including, but "any and all of my Recordings"?! Even the ones I haven't sent you? Bzzzzzt. >not limited to, those via the Internet, as well as all digital storage, >download and transmission rights, whether now known or existing in the >future. You grant to us throughout the Territory and during the Sales >Period the rights to use your name(s), professional and/or group name(s), >photographs and other images and likeness of You, biographical and/or other >information concerning You regarding all of our business activities >(provided we will not have any merchandising rights for anything other than >your Recordings). You agree to supply us with retail ready products, >including artwork, of your Recordings manufactured by You or on your behalf >sufficient to fulfill orders for your Recordings promptly following our >request. You shall be responsible for all the costs associated with >additional preparation (including shrinkwrap and jewel box). Payment for >your sales will be processed when your account balance reaches $250.00 (Two Snort! Translation: We will be ripping off 90% of our vendors (indie musicians) since that's about how many will *NEVER* reach $250 in their account. [NOTE:] This $250 rule wasn't even in many original contracts, and yet many artists have complained that they have withheld their money, citing this clause. >Hundred and Fifty Dollars). If your quarterly balance is less than $250.00 >(Two Hundred and Fifty Dollars), this amount will be rolled into the >following quarter. We shall have the right to withhold Twenty-five percent >(25%) of the Net Income as a reserve for returned and/or defective goods. Pretty high return rate... >However, these reserves will be released and paid to You no later than four >(4) quarterly accounting periods from the time such reserve is initially >established. Not withstanding the foregoing, We reserve the right to >increase the reserve if units shipped exceeds 100 in any given quarter >without further notice to You. You warrant and represent that You have the Wait a minute. You reserve the right to increase it to HOW MUCH?! 50%? 100%? And, if I'm not selling 100 CDs a Quarter, when the hell do you think I'll ever hit $250? The game is rigged, folks. Even if you sell a ton of CDs, they're going to rip you off. Did I mention that many artists who in theory have sold more than $250 have been waiting to get paid for over 2 years! >right to grant us (and any person or company named by us) the rights, >contained herein, without any liability to us or any other person or >company from whom the rights are obtained. You will be solely responsible >to pay all applicable persons and companies (including, but not limited to >all music publishers) for all rights to use all recorded performances >and/or other artistic materials (including, but not limited to all musical >compositions and/or samples) contained in your Recordings (and/or in all >artwork). You warrant that the use of the same by us (and any person or >company named by us) will not infringe upon the rights of any nature or any >person or company. You agree to indemnify, reimburse, and hold us, our >officers, members, agents, representatives, successors, designees and >assigns harmless from and against any and all liability, loss, damage, cost >and expense (including court costs and reasonable attorney's fees) arising >out of or connected with any claim by any one or more third party which >arises out of any breach of any of your warranties herein, representations >or agreements. We shall not be responsible for any inadvertent error in any >listing of your Recordings. We reserve the right to reject any of your >Recording(s), artwork or other material submitted by You. We may assign our >rights under this agreement in whole or in part. You may not assign this Translation: We plan to be a dot-boom and "sell out" even though we never made a dime and have huge debts, but we're oh-so-cool. Our entire "business plan" is founded on the idea of "buzz factor" and selling ourselves to a large company that needs to look cool. We have no real plan on making Revenue for ourselves, much less you. >agreement without notifying Us. You shall be responsible for all costs of >shipping Recordings between You and Us, including shipping costs in the >event of returns. The Term of this agreement will automatically renew for >one (1) year at the end of each Term unless You notify Us in writing no >later than 90 days prior to the expiration of the Term (Renewal). A fee of >forty-five ($45.00) U.S. dollars will be applied to Your account for the Annual fee of $45.00? For what?! And you can change the terms of the contract by altering it on-line, but *I* have to send you written notice to terminate?! How about a simple button on my account management page? Oooh, I forgot. From what I hear, you can't even get the numbers on artists' account mangagement pages to add up correctly. >Renewal. The following words when used have the following meanings: "You" >means the person(s) signing as individual(s) and/or as member(s) of any >group(s). "We" or "Us" means ORCHARD ENTERPRISES, INC., dba THE ORCHARD. >"Territory" means the Universe. "Signing Date" means the date You sign. >"Term" means a period starting on the Signing Date and ending one (1) year >from the Signing Date. "Recordings" means each and every compact disc >and/or any other audio and/or audiovisual recording in any format, in whole >or in part (whether now known or existing in the future ) which You deliver >during the Term. "Sales Period" means the time period beginning on the >Signing Date and continuing in perpetuity for each of your Recordings in >each country of the Territory. "E-Stores" means electronically or digitally >accessed commercial retailers (whether now known or created in the future) >including, but not limited to on-line record stores or websites. "Net >Income" means our gross receipts directly from the sale of your Recordings, >minus each and every cost and expense incurred by us specifically related >to those Recordings (please see www.theorchard.com for a list of current Aha! *AND* you can take out any sum you can more-or-less justify as "needed" by my CDs. So if the "reserve" isn't enough, you'll simply nickel-and-dime me to death with receipts to keep all the money. >costs). This does not create a partnership or joint venture between You and >us. This constitutes the entire agreement between You and us pertaining to >its subject matter and may not be changed, waived, discharged or >terminated, in whole or in part, except by an instrument in writing signed >by You and us. This agreement shall be governed by the laws of the State of >New York which apply to agreements entered into and wholly performed in the >State of New York and any disputes arising from this agreement shall be >subject to the exclusive jurisdiction of the state or federal courts >located in the City, County or State of New York.
| Mission Statement | Artist Roster | Free Advice | Contact | Home |