Contracts - A Few Basics.. Get it in Writing!
A written contract:
- clarifies the agreement
- leaves less room for misunderstandings
- provides tangible evidence of the intentions of the parties if there is a disagreement
- is sometimes required for there to be an agreement at all (such as a work-for-hire)
- is more likely to be enforced by a court
- should be created to summarize verbal agreements
Contract = Offer + Acceptance + Consideration
(Contract Requirements)
Offer = What the parties are going to do for each other (Buyer hires Artist to perform for an event)
Consideration = What the parties are giving to each other (The parties agree on Artist's performance fee)
Acceptance = Usually signified by the parties' signatures (Artist agrees to perform for Buyer's event)
Cover the Basics – Who, When, Where, What, Why & How (Much)
Who are the parties to the contract?
When is the event?
Where is the event?
What are the specifications for the event? (Song requests, attire, set up time, etc.)
Why is Artist playing this event? (Wedding, concert, etc.)
How (Much) will Artist be paid for the event?
Understand the Agreement
It is important to know what is in the contract you are signing or presenting. Educate yourself about what the various clauses mean and/or have an entertainment attorney, personal manager, or someone with the proper expertise explain/review/revise the agreement terms. Entertainment agreements can be confusing to even attorneys who are not familiar with entertainment law, so you shouldn't expect to understand everything, especially in more complex agreements (i.e., management or recording agreements).
Typical Music Industry Contracts
Performance Agreements
Internal Group Agreements
Sidemen Agreements
Work For Hire Agreements
Mechanical License Agreements
Sample License Agreements
Publicity Release Agreements
Advisor Team Member Agreements (i.e., Manager, Agent, Attorney)
Producer Agreements
Distribution Agreements
Recording Agreements
Investor Agreements
Performing Agreements -The agreement used most by bands and agents.. Many performers, especially early in their career, agree to do live performances on a handshake or verbal agreement. While such agreements are legal, they are difficult to enforce. The more money involved in the performance, the more important a written contract becomes. It is advisable to have a simple standard contract for live performances and add special provisions in a rider/addendum to the standard contract when necessary. A performer should not be afraid to present a written agreement to a buyer -- the performer will look more professional and also will be more likely to get paid. A written contract:
- clarifies the agreement
- leaves less room for misunderstandings
- provides tangible evidence of the intentions of the parties if there is a disagreement
- is sometimes required for there to be an agreement at all (such as a work-for-hire)
- is more likely to be enforced by a court
- should be created to summarize verbal agreements
Contract = Offer + Acceptance + Consideration
(Contract Requirements)
Offer = What the parties are going to do for each other (Buyer hires Artist to perform for an event)
Consideration = What the parties are giving to each other (The parties agree on Artist's performance fee)
Acceptance = Usually signified by the parties' signatures (Artist agrees to perform for Buyer's event)
Cover the Basics – Who, When, Where, What, Why & How (Much)
Who are the parties to the contract?
When is the event?
Where is the event?
What are the specifications for the event? (Song requests, attire, set up time, etc.)
Why is Artist playing this event? (Wedding, concert, etc.)
How (Much) will Artist be paid for the event?
Understand the Agreement
It is important to know what is in the contract you are signing or presenting. Educate yourself about what the various clauses mean and/or have an entertainment attorney, personal manager, or someone with the proper expertise explain/review/revise the agreement terms. Entertainment agreements can be confusing to even attorneys who are not familiar with entertainment law, so you shouldn't expect to understand everything, especially in more complex agreements (i.e., management or recording agreements).
Typical Music Industry Contracts
Performance Agreements
Internal Group Agreements
Sidemen Agreements
Work For Hire Agreements
Mechanical License Agreements
Sample License Agreements
Publicity Release Agreements
Advisor Team Member Agreements (i.e., Manager, Agent, Attorney)
Producer Agreements
Distribution Agreements
Recording Agreements
Investor Agreements
What to include in a Performance Agreement (a.k.a. Booking Agreement/ Engagement Contract):
Contract Basics
- Name and address of performer and buyer
- Date agreement was executed
- Date(s), time(s) and location(s) of performance(s)
- Compensation (fixed amount/guaranteed fee, percentage of door, whichever is higher, or both; advance/deposit; meals, lodging and transportation); who gets paid, when payment will be made and payment method. Note: Performers may want to ask for a portion of their compensation as a deposit. However, such advances should not be spent before the performance in case the show is cancelled, as the performer may have to return the money. It is also a good idea for performers to try to collect the balance of their compensation at the beginning of the show instead of at the end (ask for it and put it in the agreement if the buyer agrees to it). College and corporate gigs will usually provide meals, lodging and transportation, and benefits and public venue shows may not.
- Signature of both parties
Performance Details
- Nature of performance
- Number and length of sets to be performed
- Number and length of breaks between the sets
- Setup and sound check time
- Specific requirements/restrictions for performer/buyer (Announcing the performer, thanking a sponsor, attire or language, etc.)
- Other act that will be performing with you (i.e., opening or headlining act)/order of appearance; marquee billing order
Venue Details
- Admission fee/ticket price
- Capacity of venue
- Permits, licenses, insurance, security, royalties and taxes. Note: The buyer is usually responsible for these. However, performers should insure their own equipment and have permission/licenses to perform copyrighted material.
- Equipment, stage, sound, lighting and other technical requirements; who provides what and how
- Buyer's policy for food and beverage
- Right to sell merchandise on premises. Note: Smaller venues usually allow performers to do this with few, if any, restrictions (and performers often make a nice chunk of change from such sales). However, larger venues often have specific merchandise sales rules (and may also supply sales people).
- Right to record, broadcast/transmit, reproduce or photograph the performance and who controls/owns the reproduction. Note: The performer usually has the right to grant permission for such things.
- Advertising, press and publicity, if any. Note: The buyer usually has the right to use the performer's name and likeness to advertise and promote the performance. It's a good idea for the performer to provide the buyer with promotional materials and promote the show as well. An act with a bit more clout may also want to specify how and how much the buyer will spend on promoting the act, as well as any media/publicity limitations.
Other Issues
- What happens if the performance is canceled (whether it's the performer or venue's fault) Note: Usually neither party is penalized if a show is canceled with enough notice; however, it may depend on the type of show and can be handled in a variety of ways.
- Force Majeure/Acts of God such as weather or illness and other standard contract clauses
- Complimentary tickets/guest list, backstage passes, dressing room, agent terms, etc.
- The performer and the buyer should each retain a copy of the Agreement
- If a performer is not paid as agreed for a performance, small claims court may be the best option to collect the money (and potentially three times the amount as damages)
SOME SAMPLE CONTRACTS AND AGREEMENTS
BOOKING CONTRACT
THIS CONTRACT, entered into on this ________________ day of ________, 20_____, is for the personal services of the Musician(s) for the performance described below. The undersigned employer and the undersigned musician(s) agree and contract as follows:
1. NAME OF MUSICIAN(S):
2. NUMBER OF MUSICIAN(S):
3. NAME AND ADDRESS OF PLACE OF PERFORMANCE
4. DATE(S) OF PERFORMANCE:
5. TIME(S) OF PERFORMANCE:
6. WAGE AGREED UPON:
7. DEPOSIT:
8. PAYMENT OF BALANCE TO _____________________________________________
MADE IN U.S. CURRENCY OR CERTIFIED CHECK AT THE END OF PERFORMANCE.
9. ADDITIONAL TERMS:
10. This contract constitutes a complete and binding agreement between the employer and the musician(s). AGENT acts only as agent and assumes no responsibility as between the employer and the musician(s).
11. In case of breach of this contract by Employer, the Employer agrees to pay the amount stated in Section 6 as mitigated damages, plus reasonable attorney's fees, court costs, and legal interest.
13. The Employer agrees to be responsible for harm, loss, or damage of any kind to musician(s) person or property while located at the place of performance (Section 3 herein).
14. The persons signing for Employer and the Musician(s) agree to be personally, jointly and severally liable for the terms of this contract.
___________________________________ __________________________________
for Employer for Musician(s)
________________________________________________________________________________________________CONCERT PERFORMANCE CONTRACT
THIS ENTERTAINMENT AGREEMENT is made this _______ day of ________, 20____ by and between _______________________________________________(Buyer)
_______________________________________ (hereinafter referred to as the "Buyer") and the entertainer or entertainers, if more than one, listed on Addendum A attached hereto and included herein (hereinafter referred to as the "Artist"), by and through their designated agent or representative ("Manager") identified below.
WHEREAS, Buyer conducts the annual event known as __________________ (hereinafter referred to as the "Concert"); and
WHEREAS, Buyer desires to hire Artist, as independent contractor(s), to provide the entertainment generally described below (the "Performance") at the 20________ Concert; and
WHEREAS, Artist(s) desire to provide such Performance at the Concert;
NOW, THEREFORE, the parties agree as follows:
1. Entertainers: The names and addresses of the Entertainers who will appear during the Performance, the amounts to be paid to each, and the Entertainer's social security numbers and union numbers, if any, are as set forth on Addendum A.
2. Manager: The name and mailing address of the Manager, who is executing this Agreement on behalf of Artist(s), is:
____________________________________
____________________________________
____________________________________
____________________________________
3. Place of Performance: The place of performance is at
__________________________________________________________________
4. Date(s) and Time(s) of Performance: The date(s) of the Performance shall be ________________, 20____ and the time(s) of the Performance shall be _____________. This Performance shall have duration of at least _______ hours.
5. Performance: The entertainment to be provided by Entertainers is generally described as:
__________________________________________________________________
6. Agreement to Perform: Artist(s) agree to provide the Performance in accordance with the terms of this Agreement and any addendums or riders hereto.
7. Price of Performance: Buyer agrees to pay Artist or his agent an aggregate of ________________ DOLLARS ($ ) for the Performance by check immediately following the Performance, which check shall be made payable to the Manager. Upon proper endorsement of such check by Manager, Buyer agrees to cash the check for the Manager. The Manager shall distribute such amount to Artist(s) as agreed upon between them.
8. Recording, Reproduction or Transmission of Performance: Buyer will use its best efforts to prevent the recording, reproduction or transmission of the Performance without the written permission of Artist(s) or Artist's representative.
9. Excuse of Obligations: Buyer and Artist shall be excused from their obligations hereunder in the event of proven sickness, accident, riot, strike, epidemic, act of God or any
other legitimate condition or occurrence beyond their respective control.
10. Taxes: Buyer agrees to prepare and file all tax information required of a person who hires an independent contractor and Artist(s) agree that they have sole responsibility
for the payment of any federal or state taxes arising from the monies paid by Buyer to Artist(s) for the Performance.
11. Indemnify for Copyright Infringement: Artist(s) represent and warrant that they are knowledgeable about the copyright laws of the ..:NAMESPACE PREFIX = ST1 />..:NAMESPACE PREFIX = ST1 />United States as applicable to the Performance, and that Artist(s) shall not perform any copyrighted materials of others during Performance without full compliance with such applicable copyright laws. In the event that Artist(s) breach this representation, warranty and covenant, Artist(s) hereby agree to INDEMNIFY AND HOLD HARMLESS Buyer and its employees, guests and agents from and against all liability, loss, damages, claims, and expenses (including attorney's fees) arising out of such breach.
12. Independent Contractor: Artist(s) acknowledge that they shall perform their obligations hereunder as an independent contractor and not as an employee of Buyer. Artist(s) further acknowledge that they are not on Buyer's payroll and social security or tax withholding rolls. Artist(s) shall have sole control and direction in the conduct of the Performance.
13. Merchandising: Artist(s) shall not, during the 20___ Concert sell any goods, products, merchandise or services (other than the services provided herein) on the grounds of the Concert.
14. Promotion: Buyer shall be entitled to advertise and promote the appearance of Artist(s) at the 20___ Concert and the Performance. Artist(s) acknowledge that Buyer will rely on the terms hereof in all such promotions and advertising and in the brochures to be printed setting forth the names, dates and times of all performances to be held at the 20___ Concert. Artist(s)
hereby acknowledge and agree that Buyer may use their names, photographs, likeness, facsimile signature and any other promotional materials in all of such promotions, advertising or other activities used to increase attendance at the 20___ Concert.
15. Parking: Buyer shall provide parking space for vehicles in a location of close proximity to and with direct access to the backstage area where Performance will take place on
the date(s) of Performance. This parking space will be reserved for Artist(s) for a period of four (4) hours prior to the Performance and ending three (3) hours following the Performance.
16. Security: Buyer shall provide security for the backstage and stage areas before, during and after the Performance. Buyer shall provide security personnel to protect Artist(s) and their property as deemed appropriate by Buyer in its discretion.
17. Passes: Buyer shall provide identification passes to Artist(s) and Artists assistants for the backstage and stage where Performance is to be held.
18. Stage: At its sole expense, Buyer shall furnish the stage, and stage lighting, sound and power for the Performance, and Buyer shall provide all stagehands required to assist the setup for and conduct of the Performance and takedown after the Performance.
19. Dressing Rooms: Buyer shall provide Artist(s) with one private dressing room, which will be clean, dry, well lit and air conditioned.
20. Authority to Execute: The Manager who is executing this Agreement on behalf of Artist(s) hereby warrants and represents that he has the full power and authority to bind Artist(s) on whose behalf he is executing this Agreement and acknowledges that he is making this representation and warranty with the understanding that Buyer is relying thereon.
IN WITNESS WHEREOF, this Agreement is executed on the date first above written.
BUYER _______________________________________
By: _______________________________________
MANAGER _____________________________________
By:_____________________________________
Title: ___________________________________
ADDENDUM A
List of Artist(s)
NAMES & ADDRESSES OF ENTERTAINERS SOCIAL SECURITY/UNION NO.
____________________________________ __________________________
____________________________________
____________________________________ __________________________
____________________________________
____________________________________ __________________________
____________________________________
____________________________________ __________________________
____________________________________
___________________________________ __________________________
___________________________________
_____________________________________________________________________________________________ARTISTS' MANAGEMENT CONTRACT
Date:_____/_____/_______
Address: _____________________________________________________
Gentlemen:
1. I hereby employ your agency as my sole and exclusive personal representative, agent and adviser for the term commencing on the above date and continuing thereafter for a Period of
year(s) throughout the world.(Not to exceed 7)
2. As such personal representative, agent and adviser your duties shall be the following: to use all reasonable diligence and make all reasonable efforts to assist me in negotiating for and procuring employment wherever my services may become available to accept such employment: and whenever reasonably requested so to do by me, to consult with, counsel, advise and assist me in all matters relating to my professional interests, which professional interests shall be deemed to embrace all branches of the entertainment business including particularly the motion picture, radio, theatre, phonograph recording and television industries, and including also all other media of entertainment now in existence and hereafter developed, invented or discovered.
3. You hereby accept this employment and agree to perform your required services for me during the term hereof. It is expressly understood and agreed, however, that you shall have the right to render your services to other persons, either in a capacity similar to that in which you are hereby employed by me, or otherwise.
4. As consideration to you for your acceptance of this employment and for your agreement to perform your required services for me hereunder, I agree to pay you, as and when received by me, a sum equal to
(Not to exceed maximum rate shown on fee schedule.) per cent of all compensation (including salaries, earnings, royalties, bonuses, shares of profit and all other direct or indirect forms of income from my professional interests) earned and/or received by and/or accruing to me during the term hereof. As a further part of your consideration hereunder, I also agree to pay you, as and when received by me, a sum equal to the percentage set forth above in this paragraph of all compensation (as above defined) earned and/or received by and/or accruing to me after the expiration of the term hereof, for as long as I shall either directly or indirectly be employed or receive compensation under any employment or contracts entered into and negotiated for during the term of this agreement and/or under any renewal or extension of any such contracts and/or employment and/or under any employment and/or contracts entered into by me at any time in substitution or replacement of any employment or contracts entered into prior to the expiration of said term. Payment to you of the consideration specified in this paragraph is not conditioned on your obtaining employment for me, and said consideration shall be paid to you regardless of whether or not employment with respect to which the same is computed by you or by me or by anyone else.
5. It is agreed that if you shall submit to me a bonafide offer in writing and I fail to accept such offer, within the term of this agreement, but thereafter, and within a period of six (6) months from the date upon which you submitted the offer, I shall accept an offer on substantially the same terms, then in that event it shall be deemed to have been consummated during the term hereof and you shall thereupon be entitled to compensation thereon as herein provided.
6. I hereby authorize and empower you to collect all checks and monies due and payable to me as compensation earned by me as aforesaid, to endorse my name to said checks and to deposit said checks and monies to your bank account, to retain the percentage of my said earnings due you as aforesaid and to pay over the balance to me, hereby appointing you my attorney-in-fact for the aforesaid purposes.
7. If throughout any period in excess for four (4) consecutive months during the term hereof I do not receive a bonafide offer of employment from a responsible employer and if throughout such period in excess of four (4) consecutive months I shall at all times be ready, able, willing and available to accept employment, then upon the happening of both such events either you or I shall have the right to terminate this contract by forwarding to the other of us a notice in writing to that effect, which notice shall be sent by registered mail addressed to the other party to his or its last known address. However, should I receive such an offer of employment subsequent to the expiration of the four (4) month period and prior to the giving of said notice, neither of us shall have the right to terminate the agreement under the provisions of this paragraph.
8. Controversies arising between us under the Labor Code of the State and under any valid and lawful rules and regulations prescribed by the Labor Commissioner of the State of for the enforcement thereof shall be referred to said Labor Commissioner of the State of as provided in Section of said Code and the procedure thereon and the appeal therefrom shall be as prescribed and provided in said Code.
8. I acknowledge that no officer or representative of your agency has any right or authority to make any statement, representation, promise or inducement which is not hereinabove expressly set forth, and that this instrument constitutes the entire contract between us.
9. The execution hereof by you and myself will constitute this instrument a valid and binding contract
between us and this instrument may not be amended or changed in any respect except by written instrument executed by both of us.
Very truly yours,
ARTIST
ADDRESS
AGREED TO AND ACCEPTED: DATE:
ARTISTS' MANAGER
BY:
________________________________________________________________________________________________
ARTIST - RECORDING COMPANY CONTRACT
ATTACHMENT S - NON-EXCLUSIVE SONGWRITING CONTRACT.
1. SONGS. Each ARTIST agrees to write employee-for-hire songs to be recorded by RECORDING COMPANY.
2. SONGS RECORDED BY RECORDING COMPANY. Each song written by one or more of the ARTISTS which (a) RECORDING COMPANY states in writing it will record and actually does record with in 30 days after making the statement, or which (b) RECORDING COMPANY does record without having previous made such written statement, shall be deemed by the parties concerned (the songwriter(s) of the specific song(s) and RECORDING COMPANY) to have been written by the songwriter(s) as employees-for-hire for RECORDING COMPANY.
3. LIMITED EXCLUSIVE & NON-EXCLUSIVE PROVISIONS. This agreement concerns only songs described in (a) and (b) of Paragraph 2, above. Other songs and the rights thereto may be dealt with by their respective songwriter(s) as such songwriter(s) may desire. Song writer(s) may, but need not, assign copyright and other rights in such other songs to RECORDING COMPANY'S publishing companies.
4. GROSS RECEIPTS. RECORDING COMPANY shall pay to the respective songwriter(s) of each respective song fifty (50%) percent of gross receipts received by RECORDING COMPANY due to each respective song - this will be called the "songwriter's half." If more than one songwriter have written a song, then the "songwriter's half" shall be shared equally by all the songwriters of that song.
5. PERFORMANCE RIGHTS SOCIETY. Each songwriter is hereby authorized to assign to either ASCAP or BMI, whichever he may from time to time belong to, those rights which are assigned to the respective performance rights society under the usual contract in use at the time each respective song is written. Each songwriter may collect and keep ALL< U>monies which the respective performance rights society may pay to such songwriter from time to time. RECORDING COMPANY shall keep all monies which performance rights societies may from time to time pay RECORDING COMPANY (and the provisions of Paragraph 4 concerning paying the "songwriter's half" to the songwriter(s) shall not apply).
6. ROYALTY STATEMENTS. Royalty statements shall be rendered by RECORDING COMPANY concerning those songs for which "songwriter's half" amounts are payable to each songwriter to whom money is payable. Each statement shall show the name of the song and the amount per song, and the totals. If RECORDING COMPANY desires to report more information, it may do so. If a songwriter desires more information, he may audit the books and records of RECORDING COMPANY which pertain to each song written or co-written by the songwriter. Royalty statements shall cover January-June and July-December periods, and shall be rendered within 75 days after each respective half-year period. Royalty check shall accompany statements.
7. FURTHER DOCUMENTS. Concerning each song, the respective songwriter(s) and RECORDING COMPANY may, if both desires enter into a relationship other than this employee-for-hire relationship. The parties anticipate that this may be done after respective songwriters have passed their 21st birthday; however, no promise or representation that this will be done is intended or made. Each songwriter agrees to execute all documents to carry this agreement into effect, and to sign no documents with any publisher which will in any way interfere with this agreement. Specifically no other publisher shall be given any rights to any song covered by this agreement. In the event any songwriter signs any exclusive songwriter contract with anyone, the songwriter shall insist upon such contract honoring the provisions of this contract and giving precedence to the provisions of this contract.
8. RECORDING COMPANY'S PUBLISHING FIRMS. RECORDING COMPANY shall decide which song shall go into which of its publishing firms as long as the writer of the song belongs to no performance rights society. Thereafter, the song shall be placed in the publishing company which is affiliated to the performance rights society with which the songwriter is affiliated.
RECORDING COMPANY:
ARTISTS(S): _________________________________________________________
also referred to herein as songwriter(s)
_______________________________________________________________________________________DISCLAIMER: This information is offered as an educational and informational tool only, and should not be relied on as legal advice. Applicability of the principles discussed may differ substantially in individuals situations. If you need specific legal advise you should consult an attorney.
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