For as long as nightclubs have been around, promoters have used exclusivity contracts to limit how often artists can perform in the same region, making it harder to tour locally. With coronavirus at our backs and the intensifying climate crisis on the horizon, Katia Mullova speaks to DJs, club owners and promoters to explore whether it’s time to rethink these clauses.
When we talk about exclusivity in music, we might think of not being able to get into a club, or getting our hands on a rare record. But what about exclusivity contracts? Unless you’re a booker, agent, or DJ—in other words, an industry figure actively involved in these agreements—there’s a good chance you haven’t heard about them at all. Buried under payment terms and other small print, exclusivity clauses don’t exactly make for thrilling reading. In practice, however, they can impact where, when, and by which name artists play, making them a powerful force on music scenes.
Exclusivity clauses (ECs) exist across multiple industries as a way of safeguarding stakeholders from competition. To take a common example from the music world: in the run up to an album release, the label might forbid its artist from advertising other projects for some period of time before and after the release date. In the context of music events, ECs are sometimes leveraged on performers by bookers or venues—often those with larger budgets, like festivals—as a way of restricting when or where a performer plays in the dates surrounding their event. (In some cases, these clauses are significant enough that artist managers rely on dedicated software to avoid potential clashes.) “Artist exclusivity is deeply interwoven with club culture’s evolution over the last two decades,” explains Paul Ćinske, a booker for a renowned nightclub in Berlin. “Using exclusivity to leverage one party over another has been around since nightclubs came to be.”
Of course, none of this has applied while the global touring circuit has been at a standstill, but now that musicians are on the move again, ECs are reentering the picture. Together with increasingly visible questions over gatekeeping within our scene, not to mention the impact of touring musicians on the climate crisis, there’s never been a more pressing need to put them under the microscope.
The advantages of ECs are clear when it comes to protecting promoters’ curational choices. The London-based artist Serena Passion, who DJs as Peach, appreciates that they help organisers “strategise and ensure their event succeeds,” which makes sense when a lineup has been in the making for several months. It’s not that she hasn’t ever found ECs tricky. She remembers a time when, having been booked to play two back-to-backs in the same area, one gig ended up being pulled despite its stylistic differences from the other. But Passion remains conscious about audience expectations: knowing they could see the same artist another weekend might be enough to detract punters from pouncing on tickets. Bookers are especially keen to avoid overlap when it comes to festivals, where lineups are a key selling point. “Exclusivity clauses are there to ensure the crowd will still come to your event,” Passion explains. “Depending on the DJ, I’m not sure if two events in one month hosting the same DJ in the same city would do that well.”
In some cases, though, exclusivity contracts look like a way of exerting dominance. In 2018, Soul’d Out Productions sued Coachella over its excessive “territorial exclusivity” clause, which prevented artists from playing another festival in North America—or any event in nearby counties—for almost six months. Coachella had also restricted announcements of any other US gigs (except festivals like Ultra in Miami, or SXSW in Austin) until their own lineup was published. It’s interesting that commercial festivals were exempt from Coachella’s regulations, while smaller economic players like Soul’d Out were impacted. The lawsuit accused Coachella as having “unreasonably” restrained interstate commerce, but how you define “unreasonable” exclusivity is not always clear, and ultimately the case was dismissed.
This kind of monopolising behaviour makes commercial festivals in North America an obvious target for criticism. However, Passion only learned about ECs once she’d moved from Canada to London. “They’re definitely a standard for Europe and the UK as well,” she notes. “I would say even more so than in North America, where places are more spread out.” Across the pond, ECs are often found in cities saturated with nightlife, where venues are constantly competing for the attention of like-minded crowds. Passion points out that some clubs and festivals consider the mere act of booking an internationally renowned name to imply local exclusivity for the weekend.
Berlin-based artist Johanna Knutsson remembers how, during her first years DJing in Berlin, one club leveraged an exclusivity clause that forbade her to play anywhere else in the city for three months before the show (with an extra three-week “cool-off” period afterwards). “It was super hard for me at the time, as I hadn’t yet started to play outside Berlin,” she says. “Even though the gig was great, it completely ruined my financial situation over those few months, since playing was my only income. That went on for a few years, and when I eventually started touring it didn’t really matter anymore. But now it feels absurd to think that I basically had to save up money to be able to say yes to these shows.”
In this way, ECs are especially tough on local artists, forcing them to look further afield or risk giving up the gig (and the fee) altogether. From the perspective of smaller promoters, ECs have the potential to disrupt an entire event. Robbie Bloomer, who puts on parties at The White Hotel in Manchester, recalls encountering ECs for the first time shortly before his event was due to launch. “We booked a well-known Chicago artist,” he says, “and when we announced the lineup we were challenged by their agent, who had gotten complaints from a big local venue that had booked him a few months before. Eventually we had to postpone the event despite there being four months between the two parties.”
When did contractual exclusivity in underground music get like this? “The way exclusivity is being used today has a lot to do with the increasing influx of DJs creating a saturated market, and the resulting decentralisation of promoters and venues,” Ćinske says. “There’s more pressure to stand out in a sea of content and grab the public’s attention. People are more likely to buy a ticket to see an artist who only plays twice a year, rather than every weekend.” Things have also changed from the consumer’s side. A 2018 article for the Music Business Journal explains that increased use of ECs corresponds to the booming festival industry and millennials’ readiness to travel long distances to reach those events (sometimes known as “club tourism”). In other words, promoters are claiming exclusivity over wider territories because, as the industry and its audiences become more globalised, they feel the need to protect their expanded reach to stay influential. While those trends may not apply to local scenes with smaller reach and smaller budgets, local promoters and artists might still find themselves impacted by ECs if they share territory with bigger players.
That relationship between territorial exclusivity and globalisation means that ECs are also tied to questions of sustainability, and the recent lessons we’ve learned in that vein. As this report from Clean Scene and our own Reflections piece shows, internationally acclaimed DJs who fly to a large portion of gigs have a huge carbon footprint. But when COVID-19 had the world’s club circuit grind to a halt, cancelling tour dates and flights almost overnight, people considered the resurgence of local scenes. The global market had shrunk again, with all the biggest venues and festivals rescheduling for 2021 and 2022. Meanwhile, governments were seeing positive environmental outcomes directly connected to the standstill, like reduced air pollution, flourishing wildlife, and a 9.3% smaller ecological footprint worldwide than in 2019. Clearly, slow and locally-minded scenes are better for the planet. Yet, it is a bustling, globetrotting club circuit that ECs exist to serve.
This poses problems for musicians like Knutsson, who, for environmental reasons, want to travel less even when playing gigs outside their hometown. “There have been a few cases where bookings didn’t work out between cities because they were only an hour away from each other,” Johanna recounts. “I get that it’s not ideal to play twice in the same place in one weekend, but it’s very frustrating to not be able to play two shows in the same country in one weekend.” As someone who practices flight-free touring (or ‘slow gigging’) Johanna wishes venues were more relaxed about sharing acts in the same region. “It’s outrageous that we have to fly across the world just to get around this.”
Passion is more optimistic about the limitations of ECs. “Sometimes exclusivity clauses help put other shows into perspective,” she explains. “If I take on a larger show with an EC, I might focus on getting my next show with a smaller promoter to ensure the contract isn’t hurting the local scene.” She adds that ECs can help foster genuine loyalty to a party: “you’re building a relationship with them, and if you played in their city two months ago, that relationship isn’t as special anymore.”
In terms of safeguarding relationships, ECs also make it easier to establish clear boundaries between promoters not wanting to step on each other’s toes—and in situations where promoters are compelled by ECs to diversify lineups, rather than just booking the same names as everyone else, they may even help lesser-known DJs get a foot in the door. “There are so many DJs out there, it’s sort of good that ECs force promoters to explore other options,” Passion says. As a promoter, Bloomer agrees: “typically these clauses apply to larger, venue-filling artists, which just drives us to dig deeper and book lots of really talented, lesser-known Manchester locals instead of typical headliners.” Seen this way, ECs may stimulate more creative and local curation.
However, these potential benefits don’t always translate in practice. Blurred lines and selective exemptions from ECs can mean that lineups still overlap, but only between influential venues. Just as Coachella makes exceptions for its affiliated promoters, a relationship of tolerance might be established between big venues in cities like Berlin and Manchester who don’t want to lose booking opportunities to their main competitors. As a result, it’s not uncommon for big DJs to only ever appear at these established clubs because ECs don’t grant a big enough window to get booked elsewhere in that city. Technically, artists could get around this by using pseudonyms but, as Knutsson reminds me, that solution doesn’t help smaller acts trying to establish their name in the scene.
Meanwhile, many clubbers are perfectly happy to see the same artist multiple times in a short space of time, sometimes going abroad to attend events where the headliner is from their home city. And as Berklee’s Music Business Journal points out, the argument for creative insurance doesn’t hold out in the context of homogenised festivals that “no longer have distinct identities” anyway. These factors suggest that big promoters making more money don’t actually come up against the same curational limitations as smaller, local events. “It comes down to who has the deeper pockets,” says Ngqabutho Mpofu, who promotes the night JAIVA in Glasgow. “We can’t afford to spend lots of money on hyped DJs. If big promoters understood the importance of having parties that cost a fiver then the scene would be in a better place.”
With that in mind, it’s easier to imagine how ECs could worsen patterns of gatekeeping that widen the gulf between established artists and lesser-known names. “It’s new, local talent that is being held back the most,” Ćinske says. “Exclusivity doesn’t affect artists who can make a living off touring around Europe. But a local DJ trying to reach the next step in their career might have to find alternate sources of income, or take on shows that are harmful to their image just to get by. Sometimes it’s a choice between playing infrequently at big venues with wider audiences, and running on a treadmill of sets at regular, smaller venues with less exposure.”
That inequity has become more noticeable in the context of pandemic recovery. For DJ and organiser Saoirse Ryan, it was particularly frustrating to come up against ECs while planning the launch of her London festival Body Movements last year. “I get that having the same DJ playing over and over again can affect ticket sales,” she says, “but we had one promoter prevent us from booking or announcing four or five names they had booked for their festival. These artists definitely aren’t the reason they’re selling tickets, so it seemed to be a matter of principle, but it now means I can’t book queer (and out-of-work) artists to play at a queer event, which totally undermines everything we should be standing for at this time.”
As for leveraging exclusivity on her own bookings, Ryan takes a hands-off approach. “Especially with queer artists and artists of colour, who the fuck am I to say ‘you can only earn once in London in the next four months’? We had a few agents contact us about their artists playing other gigs around that time—some of them as close as two weeks beforehand—and I said that’s totally fine.”
At this point, we might be inclined to ask how much inherent value there is to lineups anyway? Music is just one of many aspects to consider when putting on events, yet artist names tend to be unique in being guarded so jealously by organisers. It would be surprising if there were outcry over competitors hiring an equally good soundsystem, or foregrounding similar safe space policies, whereas DJ names are routinely laid claim to like logos or corporate taglines, as if nothing else were capable of making a night stand out. As Ćinske says, the majority of promoters set out to create spaces where people can simply “have fun and listen to music—but that is now a romantic notion. Due to the rising costs of living, money has become an issue for promoters even at the grassroots level. It can take years to build a community around new parties or venues, so the quickest path to financial success is through the lineup.” For bigger, one-off events, it becomes even harder to guarantee an electrifying, personal atmosphere: so it’s reassuring to know the audience will be kept sweet by their favourite DJ, even if they’ve been left queueing for hours or dancing shoulder-to-shoulder in an oversold space. (A 2018 event that notoriously oversold tickets to see Aphex Twin play at Berlin’s Funkhaus springs to mind.)
“The biggest loser here, ultimately, is you, the clubber,” Oliver Payne wrote for Mixmag in 2018. “Yes, the best acts are in the city, but only ever at one place. A lack of competition means higher prices, and the city’s musical ecosystem being dominated by the tastes of a handful of people. How does that make the city’s nightlife healthy, or appealing?” Perhaps because many of us are so used to this picture of local nightlife. In a scene where dedicated local acts earn vastly different fees than international performers stopping over for one night only, and big venues are expected to stake their claim to big names, ECs are an accepted necessity for them to mitigate risk.
“Is there a solution that would allow for freedom of curation and increased financial opportunities for artists without jeopardising the vibrancy of nightlife culture?” Ćinske asks. “Promoters and venues would need to be confident that people would prefer to attend their event over another place booking the same act a week before. For guests, the buffet of talent being offered on a more regular basis would seem like a win – but how long would it last before excitement is replaced by complacency?” Now, though, with the twin emergencies of pandemic and planet in our collective vision, we have very real incentives to cultivate local scenes and make it easier for all musicians—even those at the height of their careers—to play closer to home. As Berlin Club Commissioner Lutz Leichsenring told DJ Mag in 2020, “this crisis should maybe make people think more regionally, more sustainably. Maybe the clubs that were only surviving because of tourists, and will struggle without them, should invest in the local scene in terms of bookings and audiences.”
From Ryan’s perspective, there’s never been a better time to move on from ECs. “I get it—it’s hard to sell tickets when everyone’s trying to book the same people, but that’s part of the problem. We need to break away from the norm for the next year and allow more flexibility on these exclusivity contracts. And we need to expand our horizons and stop booking from the same pool of artists! People want to go out, so now’s the time to be more creative and book all those people you’ve always wanted to. Right now you could put a fucking dead horse on your lineup and it would still sell.”
Tashan Leah Campbell, another London organiser who runs event series Club Yeke, shares this appetite for more flexibility in risk-taking. “I take the time to big up artists who aren’t as well-known, building a presence for that person so people have something to follow.” In relation to the stagnancy that can come from fixating on big headliners, she advocates “more focus on booking a wide range of smaller acts that people are actually going to be interested in. I want people to walk away from my nights having learnt something new, whether that’s a new genre, a new DJ (whoever that may be), or two tunes mixed in a different way.”
Meanwhile, Mpofu talks about the potential for more conscientious takes on exclusivity: “we want to put on a weekender where we only book local and regional artists, whether big or small. The idea is to encourage local consumption of local DJs. We’d ask our bookings not to have other gigs for that weekend to make it a special experience. It would just make for an interesting atmosphere.” This echoes the ethos of Freerotation, a beloved Wesh festival that asks DJs to stick around for the duration of the event rather than rushing in and out to play other gigs on the same weekend, ostensibly to preserve its communal atmosphere rather than its lineup exclusivity.
Maybe it’s not about erasing exclusivity altogether, and more about engaging with exclusivity more sensitively. “By removing the contractual element from the equation, exclusivity can still be a good way to naturally develop meaningful relationships between artist, venue, party and crowd,” Ćinkse says. “Just as good resident DJs are key to a venue’s success, returning DJs would get to know the space and the crowd over time, and having artists come back for certain events or sound systems would create familiarity and excitement. ECs just attempt to bottle that organic process.”
Evidently, regulating how often DJs play in the same place is not a zero-sum game, and as with any ecosystem, the line between healthy variety and structural imbalance can be a thin one. Given the implications for sustainable travel, however, the ultimate question lies not so much in the significance of a particular artist’s popularity and whether they should be monopolised, but more whether parties should feel justified in restricting bigger DJs—the ones travelling the most—from their own local scenes. As the climate crisis reaches a fever pitch, we need to challenge infrastructural details like ECs and clear the way for musicians, agents and promoters to organise as sustainably as possible.