|This Article contains excerpts from the audiobook,|
The Musician's Guide Through the Legal Jungle:
Answers to Frequently Asked Questions About Music Law
"A faster & easier way to understand music law"
Performance Agreementsby Joy R. Butler, Esq.
When performing live for compensation, it's a good idea to have a written contract.
You may encounter some owners or promoters in smaller venues who refuse to sign a written
contract. In these situations, the good news is that a contract for a live performance does
not need to be in writing in order to be valid. Of course, for obvious reasons, it's
often more difficult to prove the terms of a verbal agreement. So, if the person hiring
you refuses to sign a formal written contract, try to get something in writing - whether
it's a letter of confirmation, a fax or even an e-mail - showing the date and time of the
performance and the compensation you will be paid.
Performance agreements frequently come in two parts. The first part lists the most general information for the performance such as the names of the band and hiring person, the place, date, time and the payment terms. You'll find an example of a basic contract at the end of this article.
The second part consists of one or more riders or attachments providing additional requirements and terms. Riders can be very detailed and run up to 20 to 30 or more pages. They may address a number of issues such as specifications for the sound system and light equipment, procedures for ticket sales, promotional efforts, billing, background music, and food, transportation and accommodations provided for the performer. Generally, very detailed riders are reserved for established musicians who are performing at large venues and have ample bargaining power.To Top of Page
Here are some things you should consider when negotiating a Performance Agreement:
WHO SIGNS THE CONTRACT FOR THE MUSICIAN
As you become more established, you may use the services of a personal manager or talent agent to book your live performances. Managers often ask for a power of attorney to sign contracts on your behalf. You may wish to limit the manager's authority to sign contracts on your behalf to those contracts of a short duration, standard union agreements, and contracts for which the manager has received your verbal consent. For more information on managers and management agreements, you may want to look at the articles, Music Agents and Personal Manager Contract Negotiation Guide, which you'll find on The Musician's Resource Page.
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Will you be compensated in the event the club cancels the live performance? The sample contract below does obligate the club to pay you a certain fee upon cancellation. However, cancellation penalties may be available only for those bands with some bargaining power. So if you're in a situation where you want to play at the club more than the club wants you, you may not be able to get this cancellation clause in your contract.
Sometimes patrons are injured and property is damaged during a live performance - as the result of an accident, a fight or some other unfortunate occurrence. When that happens, patrons sometimes sue venues, promoters, and performers. A well-run venue will have insurance to cover the costs related to such injuries or damages, and in many cases, will be willing to indemnify you. Indemnification by the venue doesn't mean you can't be sued by an injured patron. However, it does mean that the venue is taking responsibility for that lawsuit, and will reimburse you for any money you must spend in defending yourself or in paying money damages to the injured patron.
WHERE DO UNIONS FIT IN
The American Federation of Musicians, or AFM, is a music union that represents musicians. The primary benefit to union membership is the increase in negotiating power. AFM negotiates collective bargaining agreements with clubs, hotels and other forums where live performances are held. Clubs that have signed an AFM Agreement must pay a minimum rate for live musical performances. AFM-affiliated clubs must also make certain pension, health and welfare payments on behalf of the musicians they employ. AFM can also assist its members in collecting unpaid fees for live performances.
The terms and rates specified in AFM's collective bargainining agreement are simply minimum requirements, and AFM members are free to negotiate higher pay rates and more attractive working conditions. Although AFM is a national organization, it has independent local chapters. As a result, the pay scales and benefits can vary depending on location.
AFM Clubs agree to hire only those musicians who are AFM members, so union membership makes you eligible to work at these clubs. The downside to union membership is that you are not supposed to work for any non-union employers. Most small clubs are not affiliated with AFM. As a result, your union membership might require you to turn down jobs you would otherwise take. For more information on AFM membership, visit the AFM website .To Top of Page
1) Engagement. The Purchaser hereby engages Musician to render a musical performance (the "Performance"), and Musician hereby agrees to render such Performance under the terms and conditions specified herein.
2) Individuals Comprising Musician. Musician consists of the following individuals:
Musician's obligation to perform hereunder is subject to the unavailability of Musician as a result of sickness, accidents, acts of God, and other reasons beyond Musician's control.
3) Location of Performance. The Performance will take place at the following location:
5) Payment. In full consideration for all services rendered by Musician at the Performance, Purchaser agrees to make the following payment in U.S. funds to Musician (select one):
a) Deposit. Purchaser will pay ___________________ Dollars ($ _____) of the payment to Musician as a deposit by __________________, 20___. If Purchaser does not pay Musician the deposit, Musician will have the option of canceling this Performance Agreement with no further liability hereunder to Purchaser.
b) Payment of Balance. After the last set on the date of the Performance, Purchaser will pay Musician the remaining balance of the payment in cash or by money order or certified check made payable to ______________________________.
c) Definitions. For the purposes of this Performance Agreement, the following definitions apply: Gross ticket sales means the sum of any and all monies paid for admission to the Performance. Net ticket sales means gross ticket sales minus the actual cost to Purchaser of the following expenses: _________________________________________.
6) Merchandise. At Musician's option, Musician may offer CDs, tapes and other items for sale at the Performance. Musician will retain all proceeds from such sales. To facilitate Musician's merchandising, Purchaser will provide a table and chairs set up in an easily accessible and visible area of the venue.
7) Cancellation. In the event Purchaser cancels the Performance less than _____ weeks prior to the scheduled date, Purchaser will pay Musician a sum equal to (select one) __ ___________________ Dollars ($ ____) __ ___ percent of the set fee specified in paragraph 5. Upon payment of the cancellation fee, Purchaser will have no further liability to Musician hereunder.
8) No Taping of Performance. Purchaser will not, nor will Purchaser allow others to tape, record, reproduce, or transmit in or from the premises in any manner or by any means, the Performance without the written approval of Musician.
9) Miscellaneous. This Performance Agreement and the attached rider(s), if any, set forth the entire agreement between the parties, and may not be amended except in a writing signed by both parties. This Performance Agreement will be governed by and construed in accordance with the laws of the State of __________, without regard to the principles of conflicts of law. In any action or proceeding involving a dispute between the Purchaser and the Musician arising out of this Performance Agreement, the prevailing party will be entitled to receive from the losing party reasonable attorney's fees.
Musician and Purchaser have each caused this Performance Agreement to be signed by its duly authorized representative.
Joy R. Butler, Esq., is a principal and the general counsel of Sashay Communications, LLC, a publishing and media production company located in the Washington, DC metropolitan area. She is the author of The Musician's Guide Through the Legal Jungle, a 3-hour audiobook offering a faster & easier way to understand music law. Visit www.legaljungleguide.com/musician.htm for audio excerpts and a detailed outline of The Musician's Guide.
This article is offered as an educational and informational tool only, and should not be relied on as legal advice. Applicability of the legal principles discussed may differ substantially in individual situations. The sample contract is for illustrative purposes only, and has not been verified for compliance with the law of any particular state. If you have a specific legal problem or concern, you should consult an attorney.