Chapter 11: Performance Agreements

Presenting Show Deals

- day of week, date, time of show(s) - min. length of show - time of load-in - time of sound check - billing: headline, co-bill, support act, opening act

Describing Payment

- total guarantee amount and/or backend of fee structure - amount of deposit/deadline for deposit arrival - description of any travel/accommodation expenses the talent buyer must pay - merchandising rate (%age of merch income the act pays the venue) - payment form (cash, check, cashier's check) - currency of settlement (US dollars, euros, etc.) - payment form for earned percentages, bonuses, overages ("cash at settlement") - requirement that all ticket revenues above the estimated gross potential to be paid to act in cash at settlement

Crew Call

# of local stagehands for load-in, running crew, and load-out of the show - includes # and qualifications, including truck unloaders/loaders, follow-spotlight operators, and local riggers

Offer

a brief document referred to as an offer form - contains the basic deal points - negotiation progresses toward the written agreement when the agent suggests that the talent buyer submits this - an indication that he is willing to receive the legal performance agreement from the agent; it's not the contractual agreement itself

Sole Proprietorship

a business formation controlled by one individual or a married couple, unless he/she has formed a different legal form of business - individual is personally liable for all expenses incurred - solo artist is generally viewed as this

Legal Fiction

a business formation w/ the legal rights of a real person

Judgement

a financial payment ordered by the court for illegal actions, including failing to fulfill promises made in agreement - entering agreements severally causes each member to assume total personal financial liability when the act is directed to pay this

Method Statement

a general description of how the local security staff will protect the act

Executed Contract

a legally binding doc that holds each party responsible for each promise contained in the agreement - when the agreement contains the necessary legal elements and is signed/dated by both parties, it becomes this

Incident Report

a requirement copy that the talent buyer provides that describes any injury or arrest - goes to tour's security coordinator at the security debriefing (post-concert security debriefing)

Contracts

a rider for a major tour usually contains them for the act - allows the talent buyer's staff and venue's employees to communicate w/ the appropriate reps for the act - include the booking agency, manager/firm, tour/production manager, tour merch company, tour advertising materials company, and tour press coordinator - also label contracts for publicity, artist development, and tour promotion depts.

Liquidated Damages

a specified amount of money that must be paid by the party in breach; may be included in agreement to avoid potential litigation - preferred over compensatory damages b/c concert attendance/expenses are difficult to determine for a canceled show - talent buyers often dislike them due to less money than out-of-pocket expenses at cancellation time by act - rarely compensate the talent buyer for potential profits from ticket sales

Control of Performance

act adds clause that insists on its total control of the performance - prevents local talent buyers from adding an opening act, a master of ceremony or a non-approved event to the show

One-Offs (Fly Dates)

act has rider for these shows that aren't part of a structured tour and for which the act carries only their instruments

Default by Talent Buyer

act includes clause that gives them the right to terminate agreement when the buyer fails to fulfill promises - includes deposit payment and providing rider requirements prior to settlement - talent buyer makes many promises that should be carried out before/during/after performance

Proper Performance Venue

act includes clause that requires proof that talent buyer has obtained a bona fide rental agreement for the days/times of the show(s) and to pay all venue rental fees - commonly includes clause that requires talent buyer to provide a venue that is a safe/proper place for the show

Control of Production

act includes clause that requires the local stagehands, venue's employees, and talent buyer's staff to take their direction from the act's production manager and appropriate dept. heads

Liability

act includes clause that the talent buyer secure personal liability insurance to cover the audience, local personnel, act, and act's crew in the event of an injury - requires talent buyer to have insurance that includes coverage for damage to the venue and/or theft of instruments need to provide proof of insurance for a min. of 1 million dollars - b/c liability settlement costs continue to increase, the venue may require the buyer to show proof that exceeds this amount

Complimentary Tickets

act may include clause that limits the # of complimentary tickets offered by the talent buyer to journalists/general public - requires talent buyer to make comp. tickets easily recognizable to help prevent them from being sold

Taxes

act may include clause that requires the talent buyer to pay all taxes related to show - buyer may negotiate to modify the statement to indicate that the amusement/sales taxes for the tickets is deducted from the gross box office revenues b4 any %s are paid to the act

Collective Bargaining Agents (Unions)

act may require talent buyer to comply w/ all regulations of these having jurisdiction over local personnel - act may include clause that transfers to the talent buyer all responsibility for union regulations/requirements

Artist Cancellation

act often adds a clause that reserves the right to cancel the concert w/ little advance notice - acts are called upon w/ little advance notice to appear on TV talk shows/etc. events essential to career development

Independent Contractor

act's contract includes clause that states the act is not an employee/employer to avoid previously mentioned governmental requirements - reminds talent buyer that the agreement doesn't est. a partnership/other ongoing business relationship

Indemnification

additional terms have clause that requires the talent buyer to hold the act legally harmless in the event that the buyer doesn't obtain the proper level of insurance - prevents a third party/injured fan from holding the act legally responsible when the talent buyer hasn't purchased the appropriate insurance policies and is unable to pay costs associated w/ judgement/out-of-court settlement - unless the artist demonstrated negligence that causes the injury, the talent buyer accepts all legal and financial liability

In-House Rider

additional terms that the talent buyer hopes to include in the agreement, also be attached to the agreement

Responsible Agent

agent presents offer to this person for the act - in turn contacts the act's manager for final approval of offer - agency creates a standard offer form to ensure all necessary info is contained in the offer

Agent Responsibility

agent usually insists on the clause inclusion that causes both the talent buyer and artist to recognize that the agent isn't responsible for act's actions

Agreement Modifications

agreement includes clause that requires all modifications to be in writing and signed by both parties - both parties may discuss/agree to changes after signing the agreement - prevents verbal misunderstandings

Duo Band

agreement may include act's stage name its known as, or the legal names of each band member

Law and Rule Violations

agreement often includes clause that protects the remainder of it when 1+ provisions are win violation of laws, rules, or regulations - they supersede any illegal acts inadvertently included in agreement

Compensatory Damages

amount of money that the injured party would have earned had the contractual promises been fulfilled - most commonly awarded damages - when talent buyer is in breach, act is awarded these that equal the amount of money the court believes the act would have earned from the concert (including guarantee, estimated %age of ticket sales, and projected merch income) - if act is in breach, talent buyer may be aware an amount equal to the projected net profit he/she would have earned from the concert

Universal Rider

an addendum to the performance agreement that describes all sound, lights, and staging that will be provided for the act at the concert site - when the promoter hiring act is a fair or festival that provides the stage set, sound, and lights for the show, the talent buyer may include this - necessary b/c each act performing must use the same basic production elements

Risk Assessment

an estimate of the dangers that the act may encounter

Anticipatory Breach

assumption that the talent buyer may neglect to fulfill promises presented in the agreement - when the act learns that the talent buyer has failed to pay another act, they may accuse him of this - to legally cancel the agreement, may include escape clause that allows them to terminate it and keep deposits/forthcoming fees when the talent buyer's good reputation changes

Riders

attachments to the basic contractual agreement that describe additional requirements the talent buyer must provide to assist the act - technical, hospitality, security, and merchandising needs

Jointly and Severally

band enters agreement and causes company and each individual member to be liable for any judgement - assets of each individual and of act's company are potentially at risk

Severally

band may enter agreement as individual band members

Jointly

band may enter agreement w/ members joined to form one company - business entity must shield the individual members from personal liability

Establishing Who Enters Agreement

begins by defining the parties - talent buyer is usually a company and represented by the executive responsible for booking the act

Arbitration

binding; each party must accept the recommendation - court may direct parties to seek mediation or this before trial to encourage parties to settle disagreement w/o need for a trial

Nontransfer Clause

clause is included b/c act has no assurance that the new talent buyer has the expertise to promote the show in a professional manner

Favorable Conditions

clause that ensures addenda/riders added by talent buyer don't reduce the effectiveness of the act's terms and conditions

Backline Shows

concerts for which the talent buyer provides all technical support except the act's backline gear and their instruments

Merchandising Rider

defines terms/conditions that the local venue must follow in exchange for a %age of merch sales - right to sell merch that includes the act's name/image is under the control of the act - hire a tour merch company to manage/market their merch

Acceptance

demonstrated by the signatures of both parties and the date when signed by each party - talent buyer indicates he/she understands terms/conditions contained in agreement, including those presented in additional terms and riders - talent buyer agrees to fulfill each promise described in agreement - the final step in est. the legally binding contract

Stage Barrier

description of the portable structure placed between the audience and stage, and the number and type of security personnel to be positioned near it

Lighting Plot

detailed diagram that indicates the types of lighting instruments, their locations, and the instrument colors - essential when the act doesn't tour w/ lighting equip/personnel and requires the talent buyer to provide it

Stage Plot

diagram of instrument, amp, mic, and direct input box locations on the stage - when act doesn't tour w/ equip/personnel necessary to assemble the stage @ each venue, the talent buyer depends on the stage plot to illustrate how the stage must be arranged before the act arrives to assemble their backline equip

Negotiating the Agreement

done btwn the agent who represents the act, and the talent buyer who represents the concert promoter - discuss basic deal points (venue, date, fee structure) of the proposed concert(s)

Out-Of-Pocket Expenses

expenditures related to the concert that cannot be cancelled or will not be returned

Security Rider

explains to the talent buyer, venue security director, local security company for the show, and local police the needs and conditions requested to protect the act/crew/equip

Damages

financial compensation for losses caused by the breach of contract - to collect them, attorney/law firm representing the injured party may file a lawsuit

The Contract

first section of performance agreement w/ essential terms of it for the concert(s) - agency attaches additional terms, standard terms/conditions to it

Permits and Restrictions

include local pyrotechnics permits, licenses to use copyrighted music during concerts, state/local health permits, special events licenses, and amplified noise permits - act's production manager must know in advance of act's arrival when there's laws, rules, regulations that may affect show production

Mediation

includes an impartial third party - mediator, third party, meets with talent buyer/act - after considering all facts of dispute, mediator recommends a non-binding settlement of the disagreement

Force Majeure

language that allows the act to cancel the concert appearance w/o legal liability when certain stated conditions prevent them from performing - French term for "act of god" - lengthy list of circumstance that may occur/prevent the act from performing if act includes it, they can include an additional clause stating they'll determine when the performance is delayed/cancelled due to weather conditions - also may insist they're paid when the event is canceled

Amendment

language that changes the agreement

Nondiscrimination

legal counsel includes clause to transfer talent buyer all criminal/civil liability for legal charges of this

Offeror

legal party presenting the offer to enter into the agreement - typically the act or company formed by the act

Runners

local employees who know the city, have a valid driver's license, and a safe driving record, to run errands for the production crew

Publicity

major act hires a publicist/publicity firm to control comm w/ broadcast/print journalists, coordinate tour press, and communicate w/ promotion and publicity depts. of the artist's label/talent buyer - act insists the talent buyer get their permission for interviews/publicity materials - act includes clause that prevents the talent buyer from arranging photo ops, press/VIP receptions, etc. w/o prior approval of act's publicist

Production Rider

many rider requests are proposed for inclusion by a major touring act and are included in this comprehensive document - each condition presented, regardless of insignificance, is a legal part of the agreement - when the talent buyer ignores an obligation, the act may consider him in a breach of contract, demand full payment, and refuse to perform

Shooter Pass

media photographers must obtain a satin/laminated security pass that identifies him/her as an approved media member - act can include clause that prevents unauthorized broadcasting of their rehearsal/concert by any medium - acts who permit fans to make live recordings customarily restrict the recording use to personal/noncommercial use and prohibit sales of recordings

Alternative Dispute Resolution

mediation/arbitration may help resolve disagreements w/o attorney need

General Partnership

more than one person doing business as a company, unless they form another legal business entity - each member is liable for expenses incurred by the company

Input List

often included in stage plot; the description of the mic/DI signal feeding each channel of the sound console - includes preferred brand of mic and desired signal processing effects for each channel

Tour Rider

one for an organized tour for which the act carries all production equipment and instruments, backline, entourage, an production crew

Offeree

party who receives the offer - typically the talent buyer - he/she can accept it as presented or negotiate to modify it

Promises of Consideration

performance agreement normally includes these - talent buyer offers money payment - act promises performance - when the show is a charitable event and the act agrees to perform for free, the act services are considered a "gift"

Cinderella Clause

permits the act to withdraw the offer when the deadline for acceptance passes - to ensure the talent buyer signs/returns the performance agreement quickly, agents may place this time limit on offer - agent may refuse bids from other talent buyers while waiting for the agreement to be signed and returned by the talent buyer - when the riders aren't available when the offer is presented, the talent buyer may as to add this (permits the talent buyer to terminate the agreement after reviewing all rider requirements)

Tech Rider

provides info regarding the physical areas, local personnel, electrical power, and equip that act requires when they arrive at the venue - if act tours w/o sound and lights, a local talent buyer must provide includes the following: - location of house/monitor console in the venue - dimensions (height, length, width) of stage risers - stage plot - input list - lighting plot - rigging plot - request for forklift when it's needed to move production equip - crew call - runners - production office assistants - electrical power requirements, including amperage, phase, and grounding, for sound/lighting systems - list of offices needed for production staff and tour management/staff, and # of telephone lines, high-speed Internet connections, electrical power outlets, and photocopiers - description of parking/electrical power needed for tour's trucks/buses - requirement that a washing machine/dryer be provided in the backstage area - request for local physician

Security Briefing

request for second security staff meeting, usually before the doors open to paid ticket holders, to discuss the positions of the local security staff and police officers

Most Favored Nations Clause

requires the talent buyer negotiate the lowest merchandising rate - rate is %age of merch income that the act pays the venue, that any other act received

Consideration

something of value to each party entering the agreement - performance agreement is legally enforceable in the civil courts when it contains a legal offer and contains this - typically the fee paid to the act and performance that the talent buyer receives - fee has been accepted by the reps w/ legal authority to sign on behalf of the act/talent buyer

Default by the Act

talent buyer includes clause that transfers financial liability to the act when the show is cancelled w/o cause - buyer protects himself from losses that are the result of the act's failure to appear/perform by adding this - addition to agreement that act's team often resists

Work Dues

talent buyer may ask for these fees assessed by the AFofM for each touring musician, be the act's responsibility

Buy and Sell Deal

talent buyer negotiates a fee for each concert and later "sells" 1+ of the shows to another talent buyer for a higher price "markup" = difference in price - may result in substantial profit for the original talent buyer

Additional Terms

the "boilerplate"; attorneys select/use contract clauses as needed - attached to agreement and carry same legal importance as the deal points stated in the basic agreement

Rigging Plot

the diagram of all rigging points and the max. weight that each point must hold

Emergency Evacuation Plan

the exit locations/means of transportation w/ an emergency

Legal Venue

the location (county/state or city/county) of the court that the lawsuit would be tried in the event of a breach of contract dispute - act includes clause that requires the location to be the city in which the act's attorney/booking agency's legal counsel does business

Injured Party

the party who alleges breach of contract

Performance Rights License

the permission to perform the song in public, for copyright protected music - act includes clause that requires the talent buyer to secure license(s) from ASCAP, BMI, SESAC, the largest performing rights orgs. in the US - fed. copyright laws require this

Radius Clause

the requirement that the act not perform for the stated period of time before/after event within the specified geographical area - talent buyer can prevent the act from performing in the same market in the same general time period w/ this

Dues

the union sends an invoice to the act for these fees that the act pays the union to perform each AFofM sanctioned concert 3 fundamental elements of legally binding contractual agreement revealed in this section - offer - consideration - acceptance

Performance Agreement

the written legal document that describes the terms and conditions of the deal - when the agent is satisfied w/ the talent buyer's offer, he cements the deal with this - act is bound to the terms of the agreement (agent represents the act) - to enter into one, the talent buyer must have the legal capacity to evaluate/accept the offer 3 general sections - essential terms of agreement - additional terms - riders

Punitive Damage

those intended to punish the person who is in breach and to discourage similar behavior in the future - much less common than compensatory damages - when state statutes permit them for breach, the judge/jury may award them if it is determined that fraud was present in the offer/acceptance, or if talent buyer falsely stated he/she secured the rental agreement for the venue

Advertising Materials

to ensure quality of this used to promote their shows, act creates/maintains an inventory of posters, flyers, other printed materials for use of talent buyers - act may hire an outside production company to create them for radio/TV - major acts include a clause stating only the advertising material provided/approved by the act may be used by the talent buyer

Sponsorship Rights

to prevent competitive sponsors at the local level, the act commonly includes the clause to prevent the talent buyer/venue from securing a sponsorship deal w/o act's permission - tour sponsors are typically guaranteed exclusivity for their product/service

Hospitality Rider

typically includes: - local hospitality assistant(s) when the act has a touring caterer - type of ground transportation needed to carry act from airport to the hotel to venue to airplane, etc. - description of kind of hotel accommodations desired when the tour doesn't use a travel agency to book hotels - # of dressing rooms needed/a description of the room accommodations - food/beverage requirements for touring crew, act, entourage - rooming list when the talent buyer is responsible for securing hotel rooms for the act, entourage, crew

Billing

when act is headlining, they add a clause stating the names of any support/opening acts appear less prominently in this than themselves

Breach of Contract

when talent buyer or act fails to fulfill promises detailed in the agreement other party may seek compensation for damages, foregone income - do this thru negotiating a buyout, filing a lawsuit in civil courts, and using mediation or arbitration

Corporation (Limited Liability Company)

when the act forms this, the business entity is a legal fiction - acts as a separate "person" in the eyes of the law - may enter into agreements w/ other businesses or individuals - may sue/be sued by other companies/individuals - individual members of band can't be held personally liable for contractual promises of their corp./LLC only for the assets they've invested in the company

Stage Name

when the act is a solo artist, the agreement may include this fictitious name he/she is known as, or the act's legal name

Descriptor

when the parties of the agreement have been identified, it creates this unique term for each party - written in capital letters to help readers recognize references to each party - talent buyer is "PURCHASER", "CLUB", etc.

Buyout

when ticket sales for a show are weak, the talent buyer may offer this financial settlement in exchange for the right to cancel the show - touring act is rarely eager to agree to the cancellation - act is more likely to ask for the full guarantee/demand that the show be presented as scheduled - although talent buyer would suffer a substantial loss by paying the act their fee/cancelling show, he would avoid paying some concert expenses (venue services, local crew salaries)

Addendum

written attachment that adds new conditions to the original agreement - after the performance agreement is fully executed, it may be modified with this - includes signatures of the agent/talent buyer to demonstrate that both accept the changes