The Relevance of a Band Performance Contract
It is essential for any band to have a contract in place when it comes to performance planning and negotiations. The importance of a well-drafted contract cannot be overstated. From the booking agent to the band, venue, promoters or producers, a legal agreement provides a layer of protection against any contract dispute that may arise, and is essential for establishing expectations and enforceable duties. A band performance contract serves to avoid ambiguity – there are a significant number of issues that can arise in relation to performance or services and without a written agreement assuming that the booking party has full knowledge of band requirements can lead to misunderstandings and disputes . As a well-drafted contract will make plain and binding the obligations of all parties, a dispute in relation to services rendered is easily resolved to avoid future misunderstandings. From vague start times, location requirements, green room entitlements to set lists and breaks, a contract can outline these provisions to avoid arguments, and hopefully prevent delaying performances. It is also important that the contract cover contingencies such as the offer of support acts, the expected crowd numbers, and how disagreements are expected to be resolved, for example.
The Key Elements of a Band Performance Contract
A band performance contract should address numerous key terms that may vary from performance to performance, depending on the desires of the parties and the type of performance as well. For example, if the anticipated performance is outdoors, the contract should state that the performance is subject to inclement weather. If the anticipated performance is going to be recorded, the contract will need to account for that, and often include contract language that provides for a share of royalties earned from the sale or distribution of those recordings.
Finally, if this is going to be a recurring relationship between the performer(s) and the performance venue, a longer performance contract is advisable that will set out all of the frequently negotiated terms of their relationship. For example, will the contract be automatically renewed? Will the performance date be honored in the event that the performer has another engagement in that city? The rules around these and a myriad of other issues should be carefully considered and negotiated. More on the merits of a long-term performance contract in a future post.
Some of the more common terms of a band performance contract include:
Performance Date: Many performance contracts require that the performance be honored even if the performer has a later booking. A specific time might be included in order to deal with the problems that arise if the performer’s listed performance date then conflicts with some later date in which the performer has some other engagement, but that time provision could also conflict with the performance venue’s ability to book another act for the later date.
Time of Performance: Many contracts provide for a period of time during which the performer will travel to the performance venue and prepare for the performance. Providing for this preparation time can be very important because the performance date and performance time may be months apart, and the performer may have changing circumstances that could conflict with the performance or performance time.
Location: In certain circumstances, a performer may be performing as a part of a series of live performances appearing in different locations. A performance contract should include the exact location of the venue, because the importance of the different venues may vary considerably.
Payment Terms: This goes hand-in-hand with the consideration of the location of the performance. Sometimes the performer may be required to travel a great distance, in which case the contract may impose travel costs on the performance venue. In other circumstances, the performer may require housing in the city of the performance.
Cancellation Policies: Cancellations can occur for a number of reasons, including cancellations by the performance venue for a variety of things, such as inclement weather. The most common problem generated by performer-initiated cancellations are mid-concert. For example, if a performer plays only one song, and then abruptly leaves the stage, what are the performance venue’s rights? In the alternative, what if the performance venue cancels after the performer has prepared, and then there is no audience? Which party takes the loss?
Compensation and Pay Structure
When securing a performance contract, bands should negotiate not only for a fair deal but also for a number of variables within that contract. In this regard, payment and compensation terms are no exception.
The first consideration is the method of payment. It is common practice to pay musicians both an hourly rate and a flat fee when they play at weddings, parties, and private events. In such cases, the hourly rate will cover the performance time, while the flat fee will take into account travel time to the venue and additional setup and breakdown time. For example, if a band were required to be on-site for 10 hours and only performed one hour, they might receive $300 as an hourly rate, plus another $40-50 as a flat fee, for a total of $340-350.
For bar and restaurant performances, bands typically negotiate a percentage of the gross revenue from patrons – a revenue share that is based on a per-head charge – or the entire cover charge collected at the door (or where the ticket costs are posted on the wall). Where there is a percentage split, bands and bars typically negotiate whether the percentage (e.g., 80/20, 70/30) applies to either the entry fee alone or the combination of the entry fee plus any bar tab that exceeds a certain threshold (e.g., $10 per person).
It is important for bands to ask for a percentage arrangement to be clearly documented in a signed contract (see our discussion of the importance of clear documentation here). And in the case of bar and restaurant performers, it goes without saying that (apart from any covers or marked-up drink prices) the band should be treated like any other bar customer when it comes to mark-up and pricing. This means that drinks purchased off-menu, in addition to margaritas, shots, wine, and prepackaged ‘bottles’ and ‘fouls,’ should be marked down for its bar staff to keep.
Technical and Logistical Specifications for Shows
Outlining not just the technical requirements to be fulfilled, but also the logistical requirements can help clarify who is responsible for what and, as above, helps the parties to seem like they’ve thought everything through. With all of the various disparate parts that go into creating a band performance, having a clear understanding of who is responsible for what goes a long way toward eliminating miscommunication, where there is almost always extra expense.
First on the list should be sound. Who is providing what?
- A labeled list of all speakers, microphones, amps, monitors, cables, etc. to be provided by each party, whether hired crew or band member
- A diagram showing how the equipment will be set up (the venue may have a technical diagram of the entire space, which includes inlet and outlet boxes and their positioning)
- Required feed points
- Expected wattage needs and speaker capacity
- Technical data for each piece of equipment (more for the sound technician than the venue staff)
- Any required placement specifications for each piece of equipment
- Power requirements for each piece of equipment (band or venue)
- If there are any feedpoints with a minimal number of amps or volts
And lighting (if applicable)
- A labeled list of all lights required to be provided by each party, whether hired crew or band member
- A diagram showing how the equipment will be set up (the venue may have a technical diagram of the entire space, which includes inlet and outlet boxes and their positioning)
- Required feed points
- Expected wattage needs and light capacity
- Any required placement specifications for each piece of equipment
- Power requirements for each piece of equipment (band or venue)
- If there are any feedpoints with a minimal number of amps or volts
And staging (if applicable)
- A labeled list of all staging required to be provided by each party, whether hired crew or band member
- A diagram showing how the equipment will be set up (the venue may have a technical diagram of the entire space, which includes inlet and outlet boxes and their positioning)
- Required feed points
- If there are any feedpoints with a minimal number of amps or volts
- Any required rigging specifications (scaffold towers may not be acceptable or may have specific requirements)
- Any budgetary requirements for labor per hour for the crew (to be paid by one party or split between the parties?)
- Any requirement for a minimum number of crew per shift
- Any requirement for a minimum number of crew on hand at the beginning and end of each shift
- Any limitation on crew performing any work (i.e. only crew that have worked for the venue for a certain number of hours)
- If no crew are provided by the venue for stage set up or breakdown, specify who at the venue should be notified/overseen by whom at the band.
- If the venue is to provide a separate site for early set up, it is imperative to specify where that site is, how far away, whether there is any significance to using that site, and whether there is any maximum amount of time to be spent at that site setting up.
And sound check
- Recommended time duration for sound check
- Required sound check time
- Advance notice of sound check
- Number of personnel allowed on stage during sound check
- Requirement for professional manner during sound check
- Purpose and meaning of "professional manner" (i.e. no talking during sound check, no alcohol during sound check)
- If outside musical artists are allowed to assist in sound check, how that will be permitted (band cannot stop playing while other artists are allowed to assist in sound check?)
- In the event of a sound check malfunction that extends past the agreed upon time, is additional time to be charged separately, or included in the original price?
- If additional time is to be charged separately, how is that to work when the artists and crew are stuck in contractually, and unable to leave even if they finish sound checking early?
While it’s impossible to anticipate all of the various possibilities that can happen during a band performance, it’s possible to think through a lot of them. The more detailed the contract can be, the better a band and a venue can prepare for the event. Anyone involved with live music can tell you that it doesn’t matter how many times you rehearse the song, sooner or later the automobile driving by, the thousand-piece marching band, or the cop car siren in the background are going to ruin it forever, in their mind at least.
Cancellation and Rescheduling Terms
If you maintain a calendar for multiple clients and businesses, you can imagine how disrupting a canceled or postponed event might be, even with as little lead-time as requested. Musicians sometimes forget that event cancellations can fall into one of a variety of categories, each with different results. By making sure your contract addresses all of them, you can head off at least some future disputes.
The gig is canceled. Litigious vocalists are always surprised that they can’t get paid when the gig gets canceled. Many contracts say that if the gig gets canceled by the client, the client owes the entire fee. A retailer or restaurant that writes a check for a local band will not see additional sales, meaning that they lose money. Sometimes, cancellation means they will be closed for the entire day and may even incur fines or penalties if they were booked to play somewhere during the day. The bands need to remember that everyone involved is conducting business and that no one wants to lose money.
Tip: Include an outspoken provision in your contract saying that if the gig is canceled by the client, the client is responsible for paying the entire fee.
The gig is moved to another date. It is not uncommon for a restaurant or club to call on the day before a gig and say that it needs to move the gig to a different date . This usually precipitates a discussion about which’s band’s schedule will bend, but there also could be other consequences if you need to switch with another band. The band that was supposed to play the night that you were rescheduled might not be available. The new venue might not have a stage. There could be nothing worse than showing up to a restaurant with your drums and electric guitar only to find out that it doesn’t have any electricity.
Tip: Include a clause in your contract saying that if the gig is scheduled to take place more than seven days in advance, the fee will not be higher than it already is, and the venue owner or band manager must bear any costs for travel if the gig must be moved outside of a certain area.
A new prospective client calls up and says, "We’d love to book you to play next week, but we really need a decision by noon tomorrow." They say the same thing to every band they call, so someone eventually says yes and books you. You’re immediately committed to playing at their saloon, even if you have to cancel a gig that’s already on your calendar and pay a penalty. Because you signed a contract with more than one band, both venues are left with an empty night and an angry band manager.
Tip: Include a clause indicating that if the gig must be scheduled less than three weeks in advance, said band cannot have booked with another venue for that same date.
Legal Matters and Dispute Resolution Provisions
If you’ve made it to this section of the blog post then you may have assumed that we’ll touch on legal considerations that should be included in the contract, such as liability, insurance, and intellectual property rights. So why would you want to include these clauses in your contract? To protect both parties of course.
For example, if you contract out services, you may also want to consider including a clause regarding insurance coverage for both parties. This will ensure that the service provider has insurance to cover liability.
For commercial bands, these type of clauses can be extremely important. While it would be more uncommon for a private individual to sue a performer, if you are applying to perform for an organization (that is not you!) you may want to make sure that they have general liability insurance in case something were to go wrong.
The other clauses to consider are further protection clauses. Some examples include:
As for resolving disputes between the parties under the contract, you can generally resolve them either through a settlement negotiation clause, mediation, or arbitration. The most common dispute resolution methods are mediation and arbitration. Both are formal systems outside of the courts.
Mediation is a method in which a neutral third party (the mediator) helps the parties come together to settle. The mediator does not have the power to impose a decision on either party.
Arbitration on the other hand is an alternative to a court proceeding. An arbitrator can make binding or non-binding decisions after hearing disputes. While parties must agree on whether arbitration will be binding or non-binding, the binding decision is enforceable in court.
In all three cases, mediation, and arbitration do not necessarily result in any type of legal precedent.
While coming up with a band performance contract, it may be beneficial to enlist the help of a lawyer experienced in entertainment contracts to make sure your rights are properly enforced.
Creating a Tailored Band Performance Agreement
To create a band performance contract that is specific to an event, take into account the particulars of the event being performed at. Consider the number of musicians in the band, the duration and start time of the performance. Also important are the sound equipment that will be used and who will be responsible for providing it, the venue requirements, parking, stage experience requirements, and requirements for breaks and breaks without pay. These and other details that could be specific to the event should be noted in the overall contract, or be attached as an appendix. If the band is being hired on a regular basis , negotiable items such as price and meal provision may be added in, as well as a priority clause which gives the band the first rights to play at the venue, as well as event cancellation policies. It is important that when drafting a contract like this, you consult with a lawyer. You should also read the laws governing contracts related to employment and sale of goods in your area: there can be different obligations according to situation, and your efforts should be made to set specific requirements on record in the contract before a potential dispute arises.