Get Paid for Your Music, Live Venue Performance Contracts
If you’re getting paying gigs or planning to tour with your band, you’ll need to have your own live venue performance contract. Longer term agreements like recording, production, or management contracts should always be reviewed by your attorney, but a contract for one performance is a fairly simple document you can execute on your own. Arm yourself with some knowledge, pay attention to the details, and your performing experience will be more professional and rewarding.
Make a Deal, Put It in Writing
Having your own well-written contract earns you respect from venue managers and concert promoters. While verbal agreements can be legally binding (it helps if you have witnesses), the gold standard for contracts is the written agreement. It will make everyone’s life easier in the event any misunderstandings or disagreements arise.
Human memory is far from infallible. I’ll never forget the time I showed up with my band on a Saturday evening to find an irate clubowner, furious because we were not there the previous night. I had clear memories of multiple phone calls about Saturday, but he was certain it was for Friday. Needless to say, we never played there again. This pain could’ve been avoided with a written contract.
Although an e-mail could be enough to confirm the terms of an agreement, it can be hard to prove where the e-mail originated and that it wasn’t doctored. A date-stamped e-mail is certainly better than nothing, but in cases of serious disagreement or accusation of malicious intent, a signed contract will work better. Otherwise, you might need to rely on a sworn affidavit from the sender or recipient which could be time consuming and may not survive close scrutiny.
In short, a written signed contract protects both parties. You might need to explain this to a client who questions whether a contract is needed. Understand how each clause of your contract protects the interests of each party. A good contract protects both sides.
I recommend you never perform without a written contract agreement. Even if there is no money involved, you should create a written “confirmation” where all details and expectations are laid out clearly. It’s the safest and most businesslike way.
Boilerplate, What?
Some contract terminology will be the same in every live venue contract. Lawyers call this consistent terminology boilerplate. According to an online legal dictionary, boilerplate is: “...slang for provisions in a contract, which are apparently routine and often preprinted. The term comes from an old method of printing. Today boilerplate is commonly stored in computer memory to be retrieved and copied when needed.”
Boilerplate is like a template. For example, the very first paragraph usually mentions the parties to the contract and the date the contract is made. Every live venue contract has similar clauses including performance date, times, compensation, and location. Once you’ve written your performance contract, you won’t need to rewrite all of it every time. You can just change names, date, location, and fee amount.
Agreements in Terms Worth Knowing
Now that we understand why we need written contracts, which terms and clauses should we include? To start, consider the following:
• Who are the parties to the agreement (purchaser and artist)?
• When is the agreement made (date)?
• What is the performance date and time?
• Where will the performance take place (address)?
• How many musicians are performing?
• What style of music will be performed on which instruments?
• Compensation—How much will you be paid (deposit and remainder), who should payments be made out to, when are the payments due, and what is the method of payment?
• Is there a possibility of cancellation and/or “rain date”?
• Act of God clause (a.k.a. force majeure)?
• Equipment and/or food, lodging, transportation rider(s)?
• What is the legal jurisdiction of the contract?
• Self-employment/independent contractor clause.
• Attire, other requirements.
You can include asking these questions as part of your client onboarding process, so these important points are clarified early on.
Some of these can be combined in a clause. Before you write the contract, consult your notes from the negotiation, as we discussed in Chapter 10. Let’s now have a look at some common live venue contract clauses.
Who, Where, and When?
The very first paragraph states who the parties to the contract are. Use the terms artist and purchaser to refer to each. For a contract to be considered legally valid, you need the physical address and contact information for both parties.
Be as specific as you can, and follow the agreed times as closely as possible. Above all, never ever start late, as this could invalidate the entire contract.
Plan to end at the time stated in the contract, regardless of any delay in the start time. It’s not fair to the musicians to ask them to work longer than the contract end time (without overtime pay) if the delay was not their fault. Musicians may need to leave immediately after a gig to get to another gig. In this case, overtime may not be possible. The client should understand this, too. Interestingly, nothing in the contract stipulates we must play well, but it does say when our performance must begin and end!
Action Steps:
1. In the opening paragraph, include the date the contract is created, with names of artist and purchaser.
2. Put the names and addresses underneath the signatures of each party at the bottom of the contract, including contact info.
3. Next, arrange the clauses after the first paragraph logically, so the contract is easy to read.
4. Create a clause Date and Times which lists the exact date of the performance, plus start and end times. If there are scheduled breaks or set lengths, these could also be included here. If there are sound check, load-in, or set up times, specify these too.
5. Include a clause which lists the exact location of the performance. If there’s a street address, include it. Add your on-site contact name and their cell phone number, if possible, so you can call if you have trouble finding the venue or stage. If there is a specific room or stage where you must report to, include that information as well.
What, Why, and How Much?
Now that we have the parties to the contracts, and the day, time, and place, we may wish to include some more details about the performance.
Action Steps:
Decide if you need to include a clause called Special Conditions, which will address:
1. The number of musicians;
2. What style of music is to be played and on what instruments;
3. How the musicians will be attired;
4. Who is responsible for music directing or other roles, for example, master of ceremonies (MC);
5. Dressing rooms;
6. Meals or refreshments for musicians;
7. What type of event or production the music is supporting, for example, fund-raiser, wedding, political rally, or festival.
Note that some of these items may also be included in an attached rider. The rider is an additional page or pages attached to the contract outlining all requirements too detailed or lengthy to be included in the main contract, such as travel arrangements, equipment needs (may also be in a separate equipment rider), and food and lodging. Note that if a rider is attached to a contract, the contract needs a clause in it stating that the rider is attached and how many pages it comprises.
This brings us to a clause of great interest: compensation. This can be broken out as follows:
• Total compensation (can also be called performance fee or similar)
• Deposit and remainder (in some cases multiple remainder payments)
• Method of payment and to whom
• Due dates for deposit and remainder(s)
Note that the deposit and remainder(s) should add up to the total compensation or performance fee. In cases where invoicing (billing) the client or employer is required, the compensation clause in the contract becomes a guide to creating the invoices. On each invoice you will need to include what the payment is for, when it is due, and to whom it should be paid. In general, you need to prepare invoices when the purchaser is a company or organization, as they will require them for their internal accounting procedures. Private individuals do not usually require an invoice.
What Else Do We Need?
Other considerations exist beyond the who, what, where, why, when, and how much. A clause may be included that spells out what happens if either party needs to cancel. Typically, there is a time period, often 30 to 60 days from the performance date where the contract can be cancelled without penalty. In this case, you might need to return the deposit. That’s why it is important that you don’t spend the deposit before doing the gig. I’ve seen some people get into trouble this way.
If the gig is outdoors, you might also have a provision for inclement weather. This is called a rain date but weather-related reasons for moving the performance date are not limited to only rain. Poor ticket sales could lead to cancellation. In a case where a gig was cancelled at the last minute, with possible malicious intent, (for example, they hired a different band), you may be entitled to keep the deposit as liquidated damages and pursue them for the remainder. You don’t need a lawyer for this in most cases, as you can use small claims court for lesser amounts. In Massachusetts, where I live, the limit is $7,000 for small claims.
I try to limit my live venue contract to a single page. If there are many specific details related to travel, equipment, lodging, meals, and so on, it may make sense to add a rider to the contract. As mentioned earlier, it’s crucial to list the number of pages in the rider on the contract.
No Brown M&Ms, Please
Most musicians have heard the story about Eddie Van Halen’s tour rider demanding a bowl of M&Ms with all the brown ones taken out. The story took on the status of urban legend symbolizing the excesses of some rock stars’ frivolous contractual demands. According to the myth-debunking site Snopes:
The legendary “no brown M&Ms” contract clause was indeed real, but the purported motivation for it was not. The M&Ms provision was included in Van Halen’s contracts not as an act of caprice, but because it served a practical purpose: to provide a simple way of determining whether the technical specifications of the contract had been thoroughly read and complied with.
(As told by Van Halen lead singer David Lee Roth in his autobiography.) So, apparently, this was a true story.
Who’s the Boss? Depends...
Three final potential clauses are worthy of mention: the self-employment clause (sometimes called independent contractor), the force majeure, and the jurisdiction clause.
The self-employment clause states that the contract does not create an employer–employee relationship, and that the performer or band is an independent contractor. Remember I wrote earlier that the contract should protect the interest of both parties? In this case, the clause protects an employer from liability for payroll tax withholding, unemployment insurance, retirement and health benefits, or other benefits usually offered to regular employees, and as required by law. From the perspective of the artist, being a nonemployee establishes certain rights of control, for example, over songs to be played, or set order.
Force majeure, also called Act of God clause, protects both parties from liability if there is some unforeseen event that precludes the performance taking place. Examples might include snowstorms, earthquakes, pandemics, floods, riots, wars, car accidents, terrorist attacks, or illnesses. Anything that could disrupt the performance and is clearly beyond anyone’s control could fall into this category. The force majeure clause states that neither party can be held accountable for such events.
Finally, the jurisdiction clause simply states which laws will apply to the agreement. In most cases, the laws of the state where the performance is to take place will prevail. If both parties are from a different state than the location of the gig, then the state where you live would be the best, although it could also be the state of the counterparty. As with almost everything in the contract, the jurisdiction may be negotiable.
Sign on the Dotted Line
Now that all the t’s are crossed and the i’s are dotted, all that’s left is to sign and date the contracts above the printed name and address of both parties.
Make sure you have a physical address for both parties, as the contract may be invalid or unenforceable without it (a P.O. box won’t do). If you aren’t in the same room, the procedure for signing is to send two copies of the contract out unsigned, for the client to review. Sometimes they will write in changes, or cross something out, which is why you should only sign it after they return the copies with their signature affixed and the required deposit. Otherwise, your signature might end up below something you didn’t agree to. In most cases, receipt of the deposit along with the signed contract will mean that the contract is in effect. If you are using a digital contract, be sure they sign it first.
If you are writing your first contract, you might want to ask another more established musician to show you theirs.
Pro Tip:
Always remember that a contract is only as good as the word of the two parties in the agreement. Contracts are not always adhered to, so don’t be surprised if someone breaks a contract or doesn’t live up to their obligations. It’s a good idea to check up on the background and reputation of the other party before entering into a contract, so you will know what to expect.