| |
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:
HOW WILL YOU BE PAID
Compensation for live performances is normally structured in one of four
ways:
payment of a set fee
a percentage of ticket sales
the greater of a percentage of ticket sales or a set fee (the set fee is a
guarantee on the minimum you'll receive for the performance)
a set fee plus a percentage of ticket sales.
When determining what percentage of ticket sales to request or accept,
you'll want to know at what price tickets are to be sold, how many people
are expected to attend the performance, and the number of free tickets the
promoter or club owner intends to give away. You'll also need to know
whether you're getting a percentage of the gross ticket sales or the net
ticket sales. If you're receiving a portion of the net ticket sales, you
should ask what deductions will be taken before you get your cut.
Preferably, the deductions will be listed in the contract.
WHO'S HIRING YOU
You may be hired by a promoter or directly by the venue. A promoter is the
person or company who organizes the event, hires you to play, rents the
hall and does the advertising. When a promoter who doesn't own the venue
is involved, fee arrangements may be a little more complicated because you
may be splitting the percentage of ticket sales with the promoter and with
the venue.
To Top of Page
WHO SIGNS THE CONTRACT FOR THE MUSICIAN
If you're a solo performer, this question is very easy to answer. You'll
sign the contract yourself. If you're part of a band, unless the band has
taken steps to organize itself as a corporation, or as some other business
form, your band is a general partnership and all the band members are
partners of the general partnership. While partners can have a formal or
written agreement, one is not required for a partnership to exist. Being a
partnership means that one member may sign a contract for the band, and
all the band members are obligated to honor that contract. Your band may
want to appoint one member as the business partner with authority to sign
contracts and accept payment for live performances for deposit into the
band's bank account.
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, (http://www.legaljungleguide.com/resource.htm)".
MERCHANDISING RIGHTS
Sales of CDs, tapes and other wares can be a very lucrative portion of
your touring and live performances. The sample contract below provides
that all merchandising income will go to the musician. However, some clubs
may charge a portion of the revenue you receive from selling your
merchandise - up to 40 percent.
To Top of Page
CANCELLATION
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.
INSURANCE
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 (www.afm.org).
To Top of Page
Here's an example of a basic Performance Agreement:
THIS PERFORMANCE AGREEMENT is made and entered into as of
_________________, 20__, by and between __________________________, whose
business address is _________________________ ("Purchaser") and the
musical group or performer __________________________ ("Musician"), whose
business address is _____________________________________. In
consideration of the mutual covenants herein contained and, intending to
be legally bound hereby, the Purchaser and Musician agree as follows:
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:
Name:
_________________________________________________
Street Address: ___________________________________________
City/State/Zip: ____________________________________________
4) Date and Time of Performance. The date of the Performance is
______________, 20___. The venue will be available for set-up on (date)
______________ at (time) ________. The Musician will play ____ sets as
follows:
Set Start Time Ending Time
1
2
3
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):
___ Set Fee. A set fee of ______________________ Dollars ($______).
___ Percentage of Ticket Sales . An amount equal to ___ percent (__ %) of
the (select one) __ gross __ net ticket sales.
___ Percentage of Ticket Sales With Guarantee. The greater of (a)
___________________ Dollars ($_____), or (b) an amount equal to ___
percent (__%) of the (select one) __ gross __ net ticket sales.
___ Set Fee plus Percentage of Ticket Sales. A fee of
______________________ Dollars ($______), plus an amount equal to ____
percent (__ %) of the (select one) __ gross __ net ticket sales.
___ Other. (specify) _____________________________________.
a) Deposit. Purchaser will pay ___________________ Dollars ($ _____) 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.
PURCHASER
_______________________________
MUSICIAN
_______________________________
--------------------------------------------------------------------------------
This Article contains excerpts from the audiobook,
The Musician's Guide Through the Legal Jungle:
Answers to Frequently Asked Questions About Music Law
© 2000 Joy R. Butler;
(P) 2000 Sashay Communications, LLC
"A faster & easier way to understand music law" http://www.legaljungleguide.com/musician.htm
--------------------------------------------------------------------------------
Joy R. Butler, Esq., is a principal and the general counsel of Sashay
Communications, a publishing and media production company located in
Arlington, Virginia. Prior to joining Sashay, she was in private practice
where she provided legal counsel to a variety of entertainment and media
clients.
DISCLAIMER
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.
|
|
