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Music Festivals and the Pursuit of Exclusivity

on September 16, 2016, 12:00am

It’s been a long three months, but summer has ended, and the frenetic festival machine unique to the season has finally come to a rest. But that doesn’t necessarily mean that musicians, fresh off those massive summer stages, will kick back and relax. In a music industry where touring has become an increasingly important source of income, it’s not at all surprising for bands to hit the festival circuit, take a breather, then go at it all over again.

It makes sense — after all, the onset of fall and its attendant tour cycle is an opportunity for musicians to take advantage of the exposure they’ve gained at festivals. But those tours don’t come easy. Agents and artists must take particular care to navigate around the various festival radius clauses that are out there.

Radius clauses are clauses in live music performance contracts that stipulate that an artist won’t play shows within a certain radius of said performance for a period of time, so the show being booked won’t be undercut by competing gigs. They’ve long been standard industry practice, but in North America’s viciously competitive festival landscape, sprawling radiuses by leading festivals have become markedly controversial, spawning debate about the creation of monopolies and the race for exclusivity in the live music industry.

Just take Lollapalooza, whose expansive radius clause is among the most maligned in recent history. (The festival declined to comment for this story.) Much reporting on the 25-year-old festival’s use of radius clauses has seized on the upper ceiling: 300 miles around Chicago, six months before the festival and three months after. “Lollapalooza’s embargo — anywhere from 90 to 270 days and 90 to 300 miles — is theoretically broad enough to keep Chicago up-and-comer Chance the Rapper from performing in his hometown for nine months this year. It’s bad for the artists and for the fans,” Mic noted in 2014, arguing that while superstars can have their radiuses waived, “mid-level” artists suffer the strictures of the clause.

But this fall, 2016 Lolla acts of varying tiers are hitting the road. Artists like Frank Turner, FIDLAR, Mac Miller, Danny Brown, and Die Antwoord are making stops in cities squarely within the 300-mile radius or even returning to Chicago. So how exactly are their radius clauses enforced? How well do we consumers outside the industry really understand radius clauses and how they work?

With Lollapalooza as a focus, Consequence of Sound spoke to festival organisers, talent buyers at concert venues, and booking agents who work within 300 miles of Chicago to find out just how radius clauses work and affect smaller promoters and venues and how the pursuit of exclusivity will change in the festival landscape’s uncertain future.

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What became obvious very quickly in this deep dive into radius clauses is that there’s no one size fits all. A radius clause is “something that is scalable to whatever artist it’s applying to,” says Pete Anderson, an agent in the concerts department at APA who covers the west coast. Speaking from the hypothetical point-of-view of a Coachella-tier festival, Anderson explains: “If you’ve got a developing artist, like The Preatures from Australia, for example, then you’re not going to be worried if they play a show in Boise, Idaho.

“But if you have an artist that’s legendary in scope, like David Gilmour, who plays very few shows a year, then you’re gonna want to protect your interests a lot more, because you’ve got a lot more money at stake.”

This is intuitive. There’s no way the contracts Pinegrove and Radiohead signed for their performances at Lollapalooza this year were identical. But what might be trickier to digest is how a radius clause is simultaneously a contractual condition to be adhered to and also something that is almost always negotiable.

“I slap a huge radius on all of my offers,” says Seth Fein, founder of The Pygmalion Festival in Urbana-Champaign, IL, a few hours’ drive south from Chicago. “But I always tag it with the same thing: ‘negotiable.’ It’s in caps.

“When I put in an offer, I want the agent to know right away that, ‘Hey, we’re having a discussion. I’m offering this amount of money and these amenities. I expect this amount of radius, but let’s talk. Let’s be human about this and try to come up with a solution that makes the most sense for both festival and artist.’”

That task of negotiating a radius clause falls to booking agents, for whom “everything is a conversation,” says John Chavez, vice president of Ground Control Touring, who’s booked tours most recently for Real Estate, DIIV, Deer Tick, and Wild Nothing.

“It’s always a conversation, and sometimes that conversation doesn’t go your way. But there’s never [a radius clause] that comes up and it’s a hard ‘No, we’re not looking into this,’ because it’s my job to look into it.”

Conversations between booking agents and festival talent buyers – that’s how we get tours and shows that appear impossible under the strictures of radius clauses. They are often announced under particular conditions: For instance, booking agents might only be allowed to announce those tour dates after the artist has played their festival gig or may be obligated to keep advertising to particular markets.

And so, just because a performance appears to clash with a festival’s radius clause doesn’t mean it’s necessarily a ‘violation,’ because it might very well have been negotiated into being. It’s widely accepted that headliners are the most constrained by radius clauses, but it’s still possible to wrangle headlining performances at two competing festivals within the same region, as OutKast proved in 2014 at Lollapalooza and Summerfest in Milwaukee, WI.

Outkast at Lollapalooza_ 2014 by Joshua Mellin
Photo by Philip Cosores

“The only time you’d ever break a radius clause is if it’s discussed with the promoter in advance and they know what you’re doing,” says Chavez. “So in that sense, they’re always abided by. Because if you break a radius clause [without telling the promoter], then you don’t have any power to re-negotiate and fix it. If you break a radius clause, then the promoter is completely within their rights to kick you off the fest or duck your pay.”

How do promoters decide whether an artist can play another show in their radius? For React Presents, the Chicago company behind North Coast Festival, Mamby on the Beach, and Spring Awakening, it boils down to factors like “the nature of the relationship, the proximity and size of the show that’s in our radius, as well as the perceived effect that it will have on our show’s bottom line,” co-founder and partner Lucas King said over email. “The general rule is ‘If you’re fair to us, we’ll be fair to you,’ to a certain extent, but we also have to protect our investments.”

Those investments, which can run up to millions of dollars for legends and headliners, are not taken lightly in today’s uncertain festival landscape. And as multiple interview subjects pointed out, radius clauses are necessary to protect those investments, whether it’s by pre-empting problems by starting negotiations or by initiating attempts to recoup lost profits. “Festivals have the right to protect their business interests,” says Anderson. “Talent bookers who are adversely affected can criticize, but it’s the world we live in.”

But in trying to protect their investments, do festivals overreach? Radius clauses are negotiable, but do festivals end up monopolising talent at the expense of smaller venues and promoters?

In 2010, Lollapalooza came under investigation by the Illinois Attorney General for anti-trust issues pertaining to their radius clauses. Although that investigation apparently went nowhere, it reportedly stemmed from local promoters and venues’ complaints that Lollapalooza was creating a dearth of bookable talent during the season.

“[Lollapalooza] sucks up all our talent during the summer,” Nick Miller of JAM Productions told Chicago Tribune music critic Greg Kot in 2008. “During the summers now, you’re lucky if you have a couple of shows, and you’re just picking up the leftovers that couldn’t get into any of the festivals,” Sean Duffy, talent buyer at The Abbey Pub, told WBEZ critic Jim DeRogatis. “And some bands that play at these festivals can’t play anywhere else in the city for 90 days before and 90 days after – that’s six months, and that’s just ridiculous!”

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In 2016, the city’s festival scene is different. Lollapalooza, now a Live Nation-owned, four-day extravaganza that can be counted on to sell out annually, is bigger than ever. Other landmark Chicago festivals like Pitchfork Music Festival (which began in 2006) and Riot Fest (which began in 2005) have come into their own. And the passing of time has helped normalize the coexistence of festivals and venues in Chicago, not to mention their collaboration in the form of after-shows and after-parties.

It’s “reality” that the numerous festivals in Chicago – and the hundreds of bands that play them – will translate into some lost plays for Chicago clubs, says Bruce Finkelman, who owns The Empty Bottle and Thalia Hall. “We do what we need to do to present the best music we can. There’s no use crying over spilt milk; it is what it is.”

“I think festival promoters and venues nationwide – not necessarily just in Chicago – have come up with ways to work together that benefit everybody a bit more than they used to,” says Patrick Van Wagoner, talent buyer and director of music operations at Schubas Tavern and Lincoln Hall. He and fellow talent buyer Dan Apodaca haven’t observed any lack of talent available for booking, particularly with the smaller capacity rooms of Schubas Tavern and Lincoln Hall, which give them a wider range of artists to book. “We definitely still book shows year round and book shows that we’re proud to have.”

Lollapalooza’s radius, with its upper ceiling of 300 miles, theoretically covers a huge territory, a point of criticism. But non-Chicago talent buyers and promoters within that radius often said it doesn’t affect them as much as some might think, though that doesn’t mean they can disregard it, or radius clauses in general.

“For us, we’re two hours away and in a different market, so it’s less of an issue,” said Seth Fein of Pygmalion Festival. “They’ve never blocked us from anything that we wanted to share … I’ve never had to get on the phone or have a meeting with C3 about it.”

“It’s no secret that there are a lot of bands that we would love to have come play Indianapolis, but can’t,” said Josh Baker, co-founder of independent promoter MOKB Presents and co-owner of The Hi-Fi. “Especially in the summertime, with Forecastle, Bunbury, Lolla – but Lolla not so much.”

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For all the scrutiny Lollapalooza’s radius clauses are subject to, it’s hardly the only festival talent buyers and venue promoters have to keep in mind when planning their calendars. The myriad of music festivals that coexist in a single region can create a “venn diagram” with their different radius clauses, as Billy Hardison, one of the co-founders of Production Simple in Louisville, KY, put it.

Although summer is traditionally a slower season for club shows, with these overlapping radius clauses, “it can get quiet in Louisville. We can struggle to fill our calendar,” he says. “And for dates outside the radius, like in March and October, we get hammered. It gets even busier. There used to be maybe 20 shows in October. Now there could be 30.”

“If every fest disappeared, my calendar of shows would be more spread out, and I would be making more money. But that’s if wishes were horses,” says Hardison. “I’ll take what I can get.”

The talent buyers and venue promoters interviewed for this story rarely responded to questions about expansive radius clauses with indignation or outrage (often because they make use of radius clauses themselves). Rather, they were realistic: Some artists are going to slip through their fingers, and that’s a fact of the business.

“Ultimately, that’s okay,” says Fein. “It’s not like it’s ever, ‘Holy shit, there are no artists.’ There are always artists. You just have to be a good buyer and a smart buyer.”

“It just forces others to be a little bit more creative in that time frame,” agreed Baker of MOKB Presents. “If you know you’re going to lose 25 or 30 acts, you’d better get your ass in gear and find some more to fill the dates.”

It can be frustrating when an act you’ve been working to secure for some time is suddenly off the table because they’ve been booked by a festival, says Baker. But some losses sting less than others, and sometimes they don’t sting much at all, because some artists were never suited to your stage to begin with. As Jason Huvaere, the founder of Paxahau Events, which runs Movement Festival in Detroit, MI, explains, it’s not really sensible to blame a nearby festival for keeping a rock or EDM show with multimillion-dollar production out of your local nightclub.

“But with some artists, like a smaller DJ, it can become unrealistic,” he says. “Because there’s a DJ that’s performing up on a stage at a festival; then you tell the entire nightlife community in that town that they’re not allowed to see that DJ for six months because if they wanna see him, they have to go to the festival – that gets a little tough. That gets a little sticky.”

Artists and agents who consent to the parameters of exclusivity outlined in radius clauses know that means being walled off from other festivals and venues. As Fein points out, it’s a strategic financial decision at hand – after all, the more exclusive and more desirable the performance, the higher likelihood of a big paycheck.

“Vince Staples isn’t going to hit Champaign-Urbana on a routed tour unless Vince Staples is going to get money: the kind of money that he’s going to be able to get in a major market. It’s not worth it [otherwise],” he says.

This year, Pygmalion Festival has scored Wolf Parade and Future Islands, two headliners who will play their only shows in Illinois and most surrounding states this year (though both acts will also be hopping over to Midpoint Festival in Cincinnati).

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“I think these were strategic moves by their management more than giving Champaign and Pygmalion the exclusive in the radius,” says Fein. The questions at hand were: “What is the value of a festival play in Champaign if there’s no Chicago play? Versus, what is the value of a festival play if there is a Chicago play, or a Bloomington, Indiana, play, or an Iowa City play?”

It was hard to write this story without being aware that there were likely many other shades to the issue – uglier, more political spats over radius clauses that would scarcely be disclosed on record – even as most of the talent buyers and promoters interviewed for this story spoke of cordial and collaborative business relationships with big festivals.

“It’s not about some festival nefariously trying to put small clubs out of business. It’s about protecting their own interests,” says booking agent Pete Anderson.

As it stands, MOKB Presents in Indy only loses a handful of bands each year to festivals with radius clauses, says co-founder Josh Baker. If another festival pops up, though, “it could be problematic. But it’s not usually anyone’s fault. I mean, any good agent worth his salt – and most of the ones we work with are – is not going to deliberately try and screw over a promoter.”

Interpersonal industry ethics aside, festivals are still part of the wider live-music ecosystem and have to inevitably “play ball” with everyone else, Baker says. “Festivals, they’re a once-a-year thing. Promoters, radio stations, and record stores are out here operating every day of the week.”

“There’s only so many dates and only so many markets. Touring is very expensive,” Anderson points out. “Festivals know that, and if they’re not paying a fee that makes sense for [an artist] to play that festival as a one-off, that artist has to tour there. So festivals do have an interest in working with surrounding clubs.”

That said, the Illinois Attorney General found enough reason to open an investigation into Lollapalooza and the festival’s use of radius clauses. Competition between festivals in North America has heated up in recent years, and the booking agents interviewed for this story have found some radius clauses enforced more strictly in this environment. “I’ve seen festivals disallow radio shows in certain radiuses. I’ve seen promoters that limit the number of festivals you can do in a hemisphere of the country,” says Anderson of festivals’ “ever-evolving” business interests.

And now that the festival bubble has all but burst – a situation Stereogum has so succinctly and decisively articulated here – even greater protections might be on the horizon, though it’s anyone’s guess. As React Presents co-founder Lucas King put it, “Radiuses are more important than ever before … Making a festival experience unique, including who is on the lineup, is more important than ever – and we don’t just say that philosophically, meaning it is important for survival.”

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