Performance Contracts
by Maria La France with support
from Brett
Trout, Attorney. PowerGig.com, August 2001. Updated by David Nevue April 2010.
Back to The Academy
This article discusses performance contracts for single performances,
commonly called a "BOOKING AGREEMENT" or "ENGAGEMENT CONTRACT".
It never hurts to review and improve even a contract you've been using for years. Intellectual property attorney
Brett Trout contributes some
great wisdom and provides even-handed contracts that opt for clarity rather than bargaining strength on either
the Buyer or Seller's side. "The goal is to lay out the deal so everyone is on the same page. The more fair
a contract is, the more likely everyone will agree to sign it." Brett shares.
In some situations, a "handshake" or verbal agreement is quite acceptable--it's legal, but difficult
to enforce. But people who think they don't need contracts must either have a well known reputation if you're the
talent-buyer, or you really trust the people you've been working with. But times change and mis-communications
happen, and a contract protects both parties. Of course, the more money is involved, the more the need for a contract.
"If you handle performances like a hobby, then you don't need a contract, but if you want to treat them like
a business, you need one," Brett advises. If you're haven't used contracts before, it can be intimidating
to ask someone to sign it, but the other party will actually respect your professionalism by doing so, and the
worst that can happen is they won't.
There is no perfect contract for any situation, and there are too many clauses to touch on in this article. A common
practice is to make a brief standard contract, and attach a rider for specific situations. Here's some important
considerations:
Date, time, compensation, and signature by BOTH
parties. In some cases, this is all you need!
Definition of performance. Both parties should know what is expected for a "performance." Provide a clear
yet concise description of the nature of the performance, including minimum length, set breaks, and anything else
unique to the performance (1-3 sentences is fine).
Location, date and time. This seems like a no-brainer, but we've heard horror stories about performers showing
up on the wrong day, two performers booked for the same time, enough said. Length of performance can be described
here or in the definition.
Compensation.
It should be clear whether a fixed amount (guarantee), a percent of door or revenue, or both. Include when payment
will be made, to who, how, and any deposits. Be very clear here as to payment method and who specifically receives
it. For example, if the deposit goes to the agent, and the remainder to the performer, it should be in the contract.
If payment is based on percent of door, both parties should have the right to be present in the box office and
access to box office records or gross receipts.
Recording, reproduction, transmission, photography. This is usually the artist's right to grant specific permission, but press and
publicity is a good thing. Flexibility is key. It is common for the Buyer to have the right to use the Performer's
name and likeness in advertisements and promotion, so its good to make sure the Buyer has appropriate promo materials.
Right to sell merchandise on premises. For smaller venues and engagements, this right is usually the performer's, because
its a large part of the performer's compensation. But for larger venues, they may have specific terms for merchandise,
but they may also have their own people to sell it.
Meals, transportation, lodging. This completely depends on the performance type and gig type. Corporate and College
gigs usually cover most everything, and public venue gigs and benefits are a little less gratuitous. Guest lists,
passes, dressing rooms, and other hospitalities vary.
Sound and production. It should be clarified who provides sound and how. It's too often that a performance is
ruined by improper sound production, so its good to allow the performer to designate a representative to control
sound equipment.
Permits, licenses, and taxes. It is customary for these to be covered by the Buyer.
Acts of God.
These events, such as weather or illness are intended to protect both parties.
Cancellation. There
are a number of ways this is handled, and again, it depends on the gig. Usually if there is enough notice, neither
party is penalized. But again, it helps to be clear.
Royalties and licensing. Responsibility for this clause usually goes to the party with deeper pockets. Brett observes,
"a small performer is probably not going to get sued, but a performer with 6-7 CDs and plenty of merchandise
sales will." A venue or large promoter on the other hand is an easy target for a lawsuit. But its smart for
performers to either have permission or the necessary licenses when performing copyrighted material.
Specific requirements/restrictions for performer. Eating, attire, language. Depending on the gig, there may be certain requirements
of the Performer or the Buyer depending on the gig, such as thanking a sponsor, announcing the performer, attire
or language at corporate or private gigs, etc., etc.
Agent terms.
Often the agent is the Seller, and the agent may draw a
separate contract with the performer. Or the contract is between the Performer and the Buyer, and in that case,
the agent's compensation should be clarified in this contract, along with any obligations of the agent.
Insurance & Security. Personal liability insurance and property insurance
are usually the responsibility of the Buyer. Although not often in the contract, the performer should insure their
own equipment.
There are numerous other clauses, but the above are the most common.
Brett recommends that you look at a variety of contracts and decide which
clauses apply to your situations.
Legal notice from Brett J. Trout Esq.: This article simply provides information about legal issues related to a Performance for Hire. Information, however, is not
the same as legal advice. Please consult your lawyer regarding the applicability of these suggestions to your particular
needs. - Brett J. Trout, Esq. (515) 288-0219
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Maria La France is president of www.PowerGig.com, a service for finding,
booking, managing, and promoting entertainment. PowerGig is free for
people seeking talent, and a low fee for performers. PowerGig is used by
college talent buyers, concert promoters, venue managers, industry executives, event planners, and more. All gig
details are saved online, and gigs can be promoted to other event-listing sites with one-click, saving time.
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