Special thanks to Maria La France of PowerGig for her invaluable assistance is putting together today’s bolg.
A Booking Agreement, or Engagement Contract as it is sometimes known, is a written record of what both the band and the venue agree the “gig” will be. Even if the contract never comes up later it is still important to have. Most people think contracts are only good for suing other people. That cannot be further from the truth. While it is always better to go into a lawsuit with a good contract backing you up, the primary benefit of a good contract is keeping you out of court in the first place. My experience with entertainment law convinces me that parties do not end up in court because one party is trying to take advantage of the other. The parties end up in court because they both had a different idea of what the other party was supposed to do. It is much more often a case of miscommunication than fraud. Having a written contract puts both parties on the same “page” going a long way toward avoiding a subsequent disagreement or lawsuit.
Obviously the fairer a contract is, the more likely everyone will agree to sign it. Sometimes, however, especially when one party has a much better bargaining position, a fair agreement is not always in the cards. In such situations, bands often opt for a “handshake” or verbal agreement, choosing not to negotiate the details and simply crossing their fingers that everything works out. While such a situation may be acceptable in some circumstances, more often than not, if a disagreement arises, the venue pays a lot of money to their high priced entertainment lawyer and the band gets the shaft. Not a very appealing result for either party.
It is much better to sit down with a skilled entertainment lawyer and work out a booking agreement you can use for multiple gigs. Whether you are the band or the talent buyer a contract protects both parties. Of course, as you become well known, attracting better talent and better venues, a contract is all the more important. If you handle performances like a hobby, then you may not need a contract. If you want to treat them like a business, you need one. If you are unused to negotiating contracts, having one prepared and signed may seem intimidating. Many people fear that presenting a contract is a sign of distrust and leads the other party to believe you are trying to take advantage of them. Relax, having a contract in hand and getting the other party to agree to the terms is a sign that you handle your business like a business. The contract is there to protect both parties. Making the contract fair will not only put the other party at ease, it will cut down on expensive and time consuming rewrites. Most importantly a fair contract will avoid having a lawsuit over unfair language a judge will likely refuse to enforce anyway.
While it is impossible to condense volumes of entertainment contract law into a few paragraphs, here are some of the important issues to discuss with your entertainment lawyer when drafting a booking agreement:
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 and concise description of the performance: your type of music, the number of musicians, minimum set length, number, length and general timing of set breaks, and anything else unique to the performance.
Location, date and time. This seems like a no-brainer, but we have all heard horror stories about performers showing up on the wrong day, two performers booked for the same time, etc.
Compensation. Be very clear whether the venue pays the band a fixed amount (guarantee), a percentage of door or revenue, or both. Detail specifically when payment will be made, to whom, how, as well as the requirement of any deposits. Go overboard on payment method and exactly whom the venue is to pay. If the venue is supposed to pay the the deposit to the agent and the balance to the lead guitarist, put it inthe contract. If the venue pays the band a percentage of door, both the venue and the band (or their agent) should have access to the door as well as the gross receipts.
Recording, reproduction, transmission, photography. The band usually has say over these items, but it is not always wise to forbid everything. For a band, press is usually a good thing. Flexibility is key. The band should generously allow the Buyer to use the band’s name and likeness in advertisements and promotion. The band should provide the venue appropriate promotional material to avoid any problems with mispromotion.
Right to sell merchandise on premises. For smaller venues merchandise usually makes up a large chunk of the band’s compensation. Accordingly, in smaller venues the band typically has complete control over the sales and profits from merchandising. Larger clubs may have their own requirements for merchandising and may demand a significant percentage of the merchandising profit. In return, larger venues often provide their own sales staff to assist in generating more sales.
Meals, transportation, lodging. These terms vary greatly from band to band and gig to gig. This is the clause where you demand the green M&Ms to see if anyone is reading the contract your entertaiment attorney worked so hard to produce. Corporations and Colleges usually cover most of these expenses, while non-profit and public gigs usually leave the band footing most of the bill. Allowances for guest lists, free passes, dressing rooms, deli trays and other amenities vary from venue to venue.
Sound and production. Be very specific as to who provides the sound and how. All too often improper sound production can ruin an entire set. It is in the interest of both the venue and the band to allow a band representative to control sound equipment.
Permits, licenses, and taxes. The venue typically covers these expenses.
Acts of God. This clause protects both parties in the event of unforeseen circumstances.
Cancellation. There are a number of ways to handle cancellations. Usually, if there is enough notice, neither party gets penalized for a cancellation, but do not leave anything to chance. Clarify in the contract; how long do the parties have to cancel without penalty?
Royalties and licensing. If the band plays other people’s music there must be a license in place to allow the band to play that music. Although it is the band violating the copyright, the record companies usually sue the venue, opting for deeper pockets, rather than direct liability. The record company is probably not going to sue a very small band with no money (although they could), but the record company will sue a band with six or seven CDs and healthy merchandise sales. A venue or large promoter is always an easy target for a lawsuit. Do not leave the venue and the band thinking each other has this covered. Clarify in the contract which party is in charge of obtaining the appropriate licenses. Usually an ASCAP or BMI license with cover the venue for most anything the band might play.
Specific requirements/restrictions for performer. Eating, attire, language. If these things are important, clarify them in the agreement. Depending on the venue, the venue may want the band to thank a sponsor, thank the corporate host, announce the next act, wear specific clothing or avoid using certian language.
Agent terms. Often the agent is the Seller, having a separate contract with the band. If there is no such contract, the contract between the venue and the band should spell out any compensation and obligations of the agent.
Insurance & Security. The venue usually handles personal liability insurance and property insurance. Spell this out in the contract. The band usually insures its own equipment.
There are numerous other clauses, but the above are the most common. Look at a variety of contracts and decide which clauses apply to your situations. Look at contracts posted online, but do not simple print one off and have it signed. Some contracts are slanted way in favo of one party or the other. Many may relate to special circumstances that do not apply to you. Most often, no contract is better than a bad contract. The more contracts you read, however, the more ideas you will get as to what you might like to cover in your agreement. Select the most applicable clauses and avoid clauses that do not relate to your situation. Covering everything you need to cover is important, but you may have trouble getting the other party to read and sign a ten page contract over a $500 gig.
Feel free to take a look at example contracts I wrote and posted on PowerGig:
Remember, these Agreements merely provide information about legal issues related to a Performance for Hire. Information, however, is not the same as legal advice. While these Agreements may indeed be applicable to your circumstance, no Agreement is universal. The author, therefore, expressly disclaims any warranty or representation that they are appropriate for your situation. Please consult a knowledgeable entertainment lawyer regarding the applicability of these Agreements to your particular needs.