4 Important Details That Should Never Be Left Out of Your Performance Contract
Disclaimer: This article is for informational purposes only and not for the purpose of providing legal advice. Applicability of any legal principles discussed may differ substantially in individual situations. The sample contract is for illustrative purposes only, and has not been verified for compliance with the law of any particular state. If you have a specific legal problem or concern, you should consult an attorney.
A performance agreement is a deal that you, the performing artist, strike with a promoter or venue owner (also known as the purchaser). While you can have a verbal agreement, a written agreement – even in an email – containing the essential terms may help avoid potential conflict or getting screwed over by the purchaser, and may prove to be more helpful in enforcing the agreement.
The three general sections of the performance agreement are:
The basic terms of the agreement (typically one page in length)
Any additional terms (the fine print)
Attachments regarding additional items the artist requires in order to perform the show, typically pertaining to tech, hospitality, merchandising, and security needs (also known as the rider)
A performance agreement can just be a simple email deal point summary for a developing band, or constitute a 25-page contract for an arena headliner. Regardless of length, all artists should always make sure that these four important details are covered in their performance agreement.
1. The basic parameters of the show
Where are you playing? You need to confirm the location, specifically the venue name, address, and possibly the particular stage or room within the venue on which you’ll be performing. You also need to know:
the date, time, and length of your performance
whether you have to play multiple sets
if there’s more than one act performing
the performance order and where you’re placed on the bill (the opener, headliner, the third of five bands, etc.)
what time you’re expected to arrive and load in
if you’re getting a soundcheck and, if so, what time
when doors open
Lastly, while you may not necessarily want to raise the following issue, you need to be aware of whether the venue will restrict you from playing another show within a certain distance within a period of time (referred to as “exclusivity”) so that you’re not competing with yourself and potentially lowering sales for the purchaser.
2. The payment terms
Before the show, it’s important to clarify a few questions:
Are you getting a flat amount of money regardless of how many people you draw (a “guarantee”), a percentage of ticket sales (“the door”), or is it a combination of both?
How and when are you getting paid?
Are you getting paid a portion of the money upfront (“deposit”), and if so, what is that amount, and when is it due to be received?
Are you being paid before or after the show?
How are you getting paid – cash or check?
If any component of your deal involves a percentage of the ticket sales, then you need to know what that percentage amount is and whether there are any deductions (typically to cover operating costs and sometimes after the purchaser earns a profit) taken from ticket sales before you start to earn your percentage. As part of this, you’ll need to know ticket prices – the advance price and day-of-show price (or “door price”), as sometimes venues will charge less for advance tickets to motivate people to buy early and generate sales more quickly in order to have an idea of how tickets are selling. If you’re receiving a percentage of the door, you’ll also want to know the venue capacity so that you know how much money you can potentially earn. Further, you should have the right to count final ticket sales to ensure proper payment.
3. What the artist provides versus what the purchaser provides
Does the venue have a sound and lighting system, or are you supposed to bring your own? A sound system generally contains the PA speakers, stage monitor speakers, microphones, and the mixing board. You’ll need to know who’s going to be operating the mixing board and lights, specifically if the venue provides personnel (a “crew”), or if you need to bring your own. If you’re playing a club that has bands performing every night, it’ll likely already have sound and lights; however, if you’re playing a catering hall, you may need to provide your own sound and lighting system.
In this same vein, does the venue have amplifiers and drum kits (a “backline”) in-house that you can use, or do you have to bring your own? If you can use the club’s, this would be contained in the rider. As your band grows and gains leverage in its negotiations with purchasers, other additional terms and conditions may be negotiated. For example, are you getting a meal and beverages (water, soda, beer, etc.) for all band members and crew? And for bigger shows, are you getting hotel rooms, complimentary tickets, or a guest list as part of the rider?
Can you sell your own merchandise? Is the venue taking commission, and if so, how much? Who is selling the merchandise? There could be many different scenarios. Some venues will take nothing on merchandise, while others may take a commission, which may range from approximately 10 to 30 percent of gross sales. Some venues may charge a lower percentage on recorded material, such as CDs and DVDs (“hard goods”) and a higher percentage on T-shirts, baseball caps, posters, etc. (“soft goods”). Some venues require you to sell your own merchandise, and other venues provide personnel to do this for you.
While performance agreements may differ in their length and scope, they should always contain the basic terms outlined above. A sample of a basic performance agreement incorporating these points can be found here for your reference.
Remember, playing shows can an exciting way to get your music in front of new fans with an opportunity to earn some money, but unless you do it in an informed and professional manner, you run the risk of mishaps and road blocks along your journey.
Barry Heyman is founder and principal attorney of Heyman Law. Barry has been practicing music, entertainment, intellectual property (copyrights and trademarks), and new media law for over 14 years. Barry is also the founding and current department chair of the recently established music and entertainment business program at the Institute of Audio Research, the world’s oldest audio engineering school. For more information, please visit the law firm website at heylaw.com.
Chris Tuthill is Director of Touring and Artist Development at TCI (Talent Consultants International). In his over two decades within the music industry, Chris has worked with a diverse group of artists ranging from ‘70s disco superstars Village People to heavy metal pioneers, Death and Carcass, as well as acted as a management representative and tour manager for Bo Diddley, Wilson Pickett, and Chuck Berry.