All professional musicians seek the perfect performance contract (also known as a performance agreement) – one that will offer the most payoff for the least payout, unlimited insurance in the case of damage or theft, provisions for sickness or cancellation, flawless security measures, a full sound check, plenty of free promotional materials, and full control over merchandising – however, in the often harsh reality of the music business, you may as well be searching for the pot of gold at the end of the rainbow. The ‘perfect’ contract simply does not exist, but fear not! There are many ways to save yourself a world of worries and hopefully better avoid being ripped off – by helping to protect your band legally by scripting your own performance contract.
Before you even begin to book your band, sit down with all of the members and decide what it is that you hope to accomplish with a live gig. For instance, if your goal is to play a show for a non-profit, benefit concert, then many of your contractual goals will be wildly different than if you decide to play for the most money possible. The most important thing you can do at this stage is to make specific decisions on what is contractually acceptable and unacceptable to you and your band and stick with them! For example, are you willing to play a shorter set in order to ensure than you get a longer sound check? Are you willing to go without a dressing room? Will you provide your own sound / lighting engineer or equipment, or use the venue’s?
Are you willing to give up a flat fee in exchange for a percentage of ticket sales? Drafting a contract before your first gig can be difficult, but as you gain more experience you will learn how to tailor the contract to better fit your and the venue’s needs. Whatever your choices are, presenting a performance contract to a venue manager / booking agent will give your band the appearance of professionalism that it needs to survive in the music business, and will make a good impression even if your contract is rejected.
The first thing to understand is that different venues will have different methods of booking acts. Smaller venues sometimes will simply refuse to sign any performance contract. Don’t be alarmed; this is a fairly typical practice. In this case try to at least secure some kind of written notice that your band has been booked to play for a certain night, and if possible, for what amount you have agreed to perform. Most medium sized venues with an average draw will readily accept a performance contract from a band, while very few large venues with well-established reputations will accept anything other than their own contracts.
If this is the case, make sure that you check and recheck the following to avoid being misled: band name, band members, method of payment, time of payment, time and date of performance, length of performance (and don’t forget the soundcheck!), contract riders, and provisions for security, insurance coverage, sound systems and lighting, control of merchandising, cancellation fees, deposits, ticket sales, and free tickets, permissible video and audio recording/broadcasting equipment, guest list, and most importantly, signatures! (These are also topics you will want to be sure to cover in your own contract.) Although some of these points may seem obvious, you never know when a simple misprint may mean your legal security.
Besides these basic provisions, make doubly sure that your brand is not required to post a bond or security deposit, or that your band is liable for any and all damages that occur during your residence in the venue! Most venues should provide adequate insurance coverage for theft or damage at no cost to your brand, but be sure to make a note of it. Also look to make sure that you are not being given a ‘pay to play’ deal, where you must purchase a block of tickets and sell them out yourself! These awful policies are unfortunately popular sticking points with unsavory concert promoters.
Secondly, venues will often have different methods of paying for the services of the band. The most common methods of payment today are guaranteed (where you will receive a certain amount regardless of attendance) or non-guaranteed (where you rely solely on your band’s popularity and ability to draw an audience).
The four types of payment are usually based on a flat fee, a percentage of ticket sales, a guaranteed percentage of the gate or a flat fee (whichever is higher), or a guaranteed fee plus a percentage of ticket sales above the guarantee. The venue will always decide what type of payment it prefers, but it is ultimately up to you to decide which of these payments you will accept and whether or not you are willing to pay for whatever the venue determines. If you feel that the exposure is worth a cut in pay, then play on, but if you feel you could get a better deal elsewhere you may choose to forgo this deal or try to bargain with the booking agent.
One of the best ways to ensure your financial and legal security is to include a contract rider provision (also commonly known as a hospitality rider provision). You may have heard the stories of bands demanding that a fresh pot of coffee provided by a local independent coffee shop be placed backstage, that the dressing room ceiling is painted black, or that all green M&Ms; be removed from the bowl in the dressing room. These may seem like laughable addendums to such a serious issue, but they can be the most valuable assets to a performing musician who wants to be sure that his contract was read thoroughly. It’s likely that the more outrageous the demands are, the more likely they are to be crossed off by the booking agent, but this is a good sign because it means the promoter was seriously paying attention to your contract.
For instance, if you demand that two apple pies baked by someone’s grandmother are to be placed in the dressing room five minutes before the sound check, and the booking agent has not brought this item up for dispute with you before signing, beware! It’s likely that there will be other more serious and legally binding aspects of your contract that will be overlooked.
If for whatever reason, any points of your contract are not met, you have the right to pursue legal action. However, you may need to carefully consider the consequences of such an action (court costs, legal fees, possible loss of reputation with venues) and weigh those against whether or not the situation warrants it. If your brand has an attorney, it’s a good idea to have him or her look over your contract for loopholes and double-check that everything weighs heavily in your favor before you present it to a booking agent.
Even bands with good contracts and lawyers sometimes do not come out on top, but by knowing the ins and outs of your own contract and the basic laws governing contracts in your area you will feel a great deal more secure in your dealings with booking agents and concert promoters, and you can get back to concentrating on what’s really important – the music!Even bands