Get Paid for Your Music Performance: A Guide to Music Contracts
(Disclaimer: The author of this article is not an Attorney; the information contained herein should not be taken as legal advice. For specific legal questions, always consult with a trusted and qualified Music Attorney.)
What You Need to Know About Music Contracts for Live Venue Performances
Now that you’ve started to get some paying gigs or are performing on tour with your band, you will need to handle the artist contract requirements for your live-performing music business. Long-term binding agreements such as recording or management contracts should always be reviewed by qualified Attorneys, but the live-venue performance contract is a fairly simple document you can put together on your own, so long as you arm yourself with a little knowledge.
Since a live venue contract is for a day (or maybe a week or month at most), there is relatively little at stake compared to long-term agreements like management or recording contracts. Still, it’s important to pay attention to the details, if only to make your professional performance a more pleasant and rewarding experience. Another benefit of having a well-written contract is you’ll be viewed with greater respect by Venue Managers and Concert Promoters. Just as it’s the responsibility of a seller of goods or services to provide a written purchase order and receipt, the performance contract is generally viewed as a responsibility of the artist or band. The contract is essentially the agreement you have with the person hiring you, in the form of a written document.
Make A Deal And Put It In Writing
While it’s true verbal agreements can be legally binding (it helps if you have witnesses), the gold standard for contracts is the written agreement. This will make things easier in the event there are later discrepancies or disagreements around the terms agreed upon. It’s also a way to protect both parties from misunderstandings or mistakes due to divergent memories of precisely what was agreed. It’s a known fact the human memory is far from infallible.
(I’ll never forget the time I showed up with my band at a club on a Saturday evening to find an irate Club Owner, furious with us because we were not there the previous night. I had very clear memories of multiple phone calls where we specifically spoke about Saturday, but he swore up and down we were supposed to play on Friday. Needless to say, we never played there again. This fallout could have been avoided with a simple written contract.)
Some people in the industry will say a simple email with the details should be enough to confirm the terms of an agreement. While a date-stamped email is certainly better than nothing, in a case where there is a serious disagreement or accusations of wrongdoing, it can be hard to prove where the email originated, or that it was not doctored. For all these reasons, I would recommend you never perform anywhere without a written contract or agreement. Even if there is no money involved, there should be a written “confirmation” or agreement where all details and expectations are laid out clearly. It’s the safest and wisest way to proceed.
It’s important to understand that the best contracts protect both parties. This might be worth mentioning if you are ever asked by a client why it is necessary to have a written contract. It’s not only about trust, it’s also about clarity. A contract exists to protect both parties. There really aren’t any one-sided contracts worth the paper they are written on. Why would anyone sign an agreement that only protects one side? It’s smart to always try to point out to a counterparty how a contract will also protect their interests.
The procedure for signing if you aren’t in the same room, is to send two copies of the contract out unsigned for the Promoter to look over. Sometimes they will write in changes, or cross something out, which is why you should only sign it AFTER they have signed it. Otherwise, your signature might end up below something you didn’t agree to.
There is always a certain amount of wording in a contract that will be the same as in every other contract of the same kind. We call this consistent terminology “boilerplate.” According to an online legal dictionary, boilerplate is:
“…slang for provisions in a contract, which are apparently routine and often preprinted. The term comes from an old method of printing. Today boilerplate is commonly stored in computer memory to be retrieved and copied when needed.”
You could think of it as a kind of template. An example of boilerplate might be the initial paragraph indicating which individuals or companies are parties to the contract, the date the contract is made, and the headers and wording of the various clauses in the contract. Once you’ve written your performance contract, you won’t need to rewrite the whole of it every time.
Agreements In Terms Worth Knowing
Now that we understand the reasons for having a written contract, let’s examine which terms it’s crucial to include. We could ask some questions to be answered in the contract as follows:
- Who are the parties to the agreement (purchaser and artist)?
- When is the agreement made (date)?
- What is/are the performance date(s) and time(s)?
- Where will the performance take place (address)?
- How many musicians are performing?
- What style of music will be performed on which instruments?
- Compensation – How much will you be paid (deposit and remainder), when are the payments due, and what is the method of payment?
- Is there a possibility of cancellation and/or “rain date?”
- Act of God clause (a.k.a. force majeure)?
- Equipment and/or food, lodging, transportation rider(s)?
- What is the jurisdiction of the contract?
- Self-employment clause?
- Attire, other requirements?
Some of these areas could be combined in a single clause. You should have all of these questions in mind during the negotiation, prior to writing the contract. I will explain each question in a bit more detail below. Let’s explore the clauses, which are the heart of your contract.
Who, Where, and When?
This is where the aforementioned boilerplate makes its initial appearance. Typically, the first paragraph states who the parties to the contract are, and use terms like “artist” and “purchaser” to refer to each. Note for a contract to be considered legally valid, the addresses and contact information for both parties must be included. The place to write this is underneath the respective signatures of each party at the very bottom of the contract. In the opening boilerplate, we should also include the date the contract or agreement is made.
The clauses that follow can come in any order, but I like to arrange them in a way that makes logical sense, making the contract easy to read. With this in mind, I might start with a clause titled “Date(s) and Time(s).” In this clause, I would list the day, month, and year for the performance, plus the start and end times. If there are scheduled breaks or set-lengths they could also be included here. If there is a sound check or equipment to set up, I also would include the time we are guaranteed access to the stage area, so we will have time to get our gear checked and ready.
Pro tip: It’s best to be very specific, and when the day and time comes, it’s important to honor the letter of the agreement as closely as possible. This means you absolutely cannot afford to start late, as this puts the validity of the entire contract into jeopardy. Regarding performance end times, most groups will end at the time stated, regardless of any delay in the start time, as long as that delay was not caused by them. It’s not fair to the musicians to ask them to work longer than the contract end time (without overtime pay) if the delay was not your fault. There may be cases where musicians need to leave right at the ending time to get to another gig. In this case, overtime may not be possible. The client should understand this, too. Interestingly, there is nothing in the contract which stipulates we must play well, but it does say when our performance must begin and end!
Next, we should include the exact location of the performance. If there is a street address, include it. I like to put the on-site contact for the day with cell phone number if this information is available, so I can reach them if we have trouble finding the venue or stage. If there is a specific room or stage where we must report, I would include that information as well.
What, Why, and How Much?
Now we have the day, time, and place, we may wish to include some more details about the performance. We might have a clause called “Special Conditions” which will address the number of musicians, what style of music is to be played, on what instruments, how the musicians will be attired, who is responsible for music directing or other roles (e.g. master of ceremonies – M.C.), dressing rooms, meals or refreshments for musicians, and what type of event or production the music is supporting (e.g. fundraiser, wedding, political rally, festival, etc.).
Note that some of these items may also be included in an attached rider. A rider is an additional page or pages attached to the contract spelling out requirements too detailed or lengthy to be included in the main contract, such as travel arrangements, equipment needs ( which may also be in a separate equipment rider), food and lodging, etc. Note that if a rider is attached to a contract, the contract needs a clause in it stating the rider is attached and how many pages it comprises.
This brings us to a clause of great interest: compensation. This can be broken down as follows:
- Total compensation (can also be called “performance fee” or similar)
- Deposit & remainder (in some cases multiple remainder payments)
- Method of payment and to whom
- Due dates for deposit and remainder(s)
Note that the deposit and remainder should add up to the total compensation or performance fee. In cases where invoicing (billing) the client or employer is required, the compensation clause in the contract becomes a guide to creating the invoices. On each invoice, you will need to include what the payment is for, when it is due, and to whom it should be paid. In general, you need to prepare invoices when the purchaser is a company or organizations, as they will require them for their internal accounting procedures.
Always remember a contract is only as good as the word of the people signing it. Contracts are not always adhered to, so don’t be surprised if someone breaks a contract, or doesn’t live up to their obligations. It’s a good idea to check up on the background and reputation of the other party before executing a contract, so you will know what to expect.
What Else Do We Need?
There are other considerations that go beyond the what, where, why, when, and how much. There can be a clause that spells out what happens if either party needs to cancel. Typically, there is a time period, often 30-60 days, where the contract can be canceled without penalty. In this case, you might need to return the deposit. That’s why it is important you don’t spend the deposit before the gig is complete. I’ve seen some people get into trouble this way.
There might also be a provision for inclement weather if the gig is outdoors. This is called a “rain date” but the weather-related causes for moving the performance are not limited to just rain. There could also be cancellation or postponement of the performance due to poor ticket sales, for example. In a case where a gig was canceled at the last minute, with possible malicious intent, for example (they hired a different band?), you may be entitled to not only keep the deposit as liquidated damages but pursue them for the remainder. You don’t need a Lawyer for this in most cases, as you can use small claims court for lesser amounts (In Massachusetts where I live, the limit is $7,000 for small claims).
Other possible considerations either party might wish to list in the contract may be included in the rider (see above). There really aren’t limits to what can be put into a contract, but for the sake of simplicity, clarity, and common sense, it’s wise to limit the content wherever possible, while still portraying the letter and spirit of the agreement.
I try to keep my live venue contracts to a single page. If there are many more specific details around travel, equipment, lodging, meals, etc. then it makes sense to add a rider to the contract to describe these additional requirements. It is crucial to list the number of pages in the rider on the contract first page.
No Brown M&Ms, Please
Most musicians have heard of the story about Eddie Van Halen’s tour rider demanding a bowl of M&Ms with all the brown ones taken out. The story took on the status of urban legend symbolizing the excesses of some Rock Stars’ frivolous contractual demands. According to the myth-debunking site Snopes:
The legendary ‘no brown M&Ms’ contract clause was indeed real, but the purported motivation for it was not. The M&Ms provision was included in Van Halen’s contracts, not as an act of caprice, but because it served a practical purpose: to provide a simple way of determining whether the technical specifications of the contract had been thoroughly read and complied with. (As told by Van Halen lead singer David Lee Roth in his autobiography.)
So, apparently, this was a true story.
Who’s The Boss? Depends….
Three final potential clauses are worthy of mention: the self-employment clause (sometimes called independent contractor), the force majeure, and the jurisdiction clause.
The self-employment clause usually states clearly there is no employer-employee relationship created by the contract and that the performer or band is an independent contract. Now, who does this protect and from what? Remember earlier I said the contract should protect the interest of both parties? In this case, the clause protects an employer from being liable for payroll tax withholding, unemployment insurance, retirement and health benefits, or other benefits typically offered by employers to regular employees (and in many cases, required by law). From the perspective of the artist, being a non-employee establishes certain rights of control, for example over songs to be played, or set order.
Force majeure, also called act of God clause, is to relinquish both parties from any blame if there is some unforeseen event that results in the performance not taking place. Examples might include snowstorms, earthquakes, floods, riots, wars, car accidents, terrorist attacks, etc. Anything that could disrupt the performance and is clearly beyond anyone’s control could fall into this category. The force majeure clause states neither party can be held accountable for such events.
Finally, the jurisdiction clause simply states which laws will apply to the agreement. In most cases, the laws of the state where the performance is to take place will prevail. If both parties are from a different state than the location of the gig, then the state where you live would be the best, although it could also be the state of the person or organization hiring you. As with almost everything in the contract, the jurisdiction may be negotiable.
Sign On The Dotted Line
Now that all the t’s are crossed and the i’s are dotted, all that’s left is to sign the contracts above the name and address of the two parties. Make sure you have a physical address for both parties, as the contract may be invalid or unenforceable without physical addresses (a P.O. box won’t do). The procedure for signing if you aren’t in the same room is to send two copies of the contract out unsigned for the Promoter to look over. Sometimes they will write in changes, or cross something out, which is why you should only sign it AFTER they have signed it. Otherwise, your signature might end up below something you didn’t agree to. In most cases, receipt of the deposit along with the signed contract will indicate the contract is in effect.
If you are writing your first contract, you might want to ask another more established musician to show you theirs. Final tip: Always remember a contract is only as good as the word of the people signing it. Contracts are not always adhered to, so don’t be surprised if someone breaks a contract, or doesn’t live up to their obligations. It’s a good idea to check up on the background and reputation of the other party before executing a contract, so you will know what to expect.
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