Performing music live is a prime objective of many artists. The performance may be a one-off show at a local bar, part of a tour, or a corporate gig. The variabilities of artists' performances and the related business considerations are vast. Whether you are the artist, represent the venue, or are the event operator (in which case you might also be the venue representative) challenges may arise if the terms of the performance are not clear and confirmed by all parties. For this reason, like all other business engagements, we encourage written performance agreements to be entered into between artist and party engaging them – either a venue or event operator (also referred to as a promoter). This blog discusses primary legal considerations of performance agreements.
While venues are referenced below, depending on the circumstances, it may be the promoter as opposed to a venue which is taking into account the considerations below.
Basic Logistics
A few essential items in a performance agreement are the venue address and contact information, the call time and sound check time, and the duration of the set/performance. Everyone wants to avoid inconsistent expectations. We want to avoid the artist thinking they are performing for an hour with ample sound check time vs. a promoter who wants the artist on for three hours with no prep.
Compensation
Is the compensation a flat fee, or a percentage of tickets? It could also be a free show (not ideal for artists – you can't pay rent with promotion). If it is a paid performance, is there a deposit or guarantee? When is the compensation paid? Is part or all of it being paid before the performance (how long before?), after the performance date or on the performance date? What is the method of payment? Is tax included or added on, if applicable? Is there interest added if it's late?
Hospitality
Are there amenities that the venue will provide for the artist? For example, are accommodation or travel being covered in one way or another, from reimbursing the artist to the venue paying for such costs directly. Is there a per diem for food… or whatever the artist wants to use it on? Additionally, are there amenities provided for the artist at the venue itself on the date of the performance, from preferred food and drink (the rider!)?
Backline & More
It's important for all parties to be on the same page about the backline, lighting, sound and any other equipment considerations.
Recording and Artist Assets
Is the venue recording any portion of the artist's performance – through photography and/or video? If so, there should be a grant of rights section wherein the artist grants the venue the right to record, as well as other necessary rights relating to the venue's intended use of the recording, for example, posting on social media. Similarly, the venue should also receive a grant of rights for use of any of the artist's assets that it may use to promote the gig. This may be use of the artist's name, photos, music and/or artwork. From the artist's perspective the question is whether this is reasonable. Also to be considered by all parties are the relevant publishing rights.
Merchandise
Is artist merchandise being sold at the show? If so, who will be managing the merch table – the artist or the venue? The venue may demand a percentage of sales, whether they do the selling or not. This has become a hot topic among all parties in the live music space.
Cancellation and Default
Another key element is about cancellation of the performance or a party defaulting on their obligations. What are the implications where one party unilaterally cancels the performance? Are there instances where cancellation may be allowed or perhaps mandated? Some examples are extreme weather, death and illness. What if the artist fails to show up or the venue fails to keep the stage in a suitable condition for the performance?
Liability, Indemnity and Insurance
Liability, indemnity, and insurance are terms common to most commercial agreements. What happens if injuries occur at the venue during the performance? Similarly, what if damage occurs – either to the artist's equipment or to property at the venue? Who is responsible? What if a lawsuit is brought against either the artist or the venue in relation to an incident that occurred during the performance. Often, a relevant insurance policy will be in effect that will dictate processes to follow. At the same time, indemnity clauses may say that one party must defend and hold harmless the other party for any claims brought against them.
Conclusion
This blog provides a summary of some of the legal considerations relating to performance agreements. It is not an exhaustive list. Novel situations and circumstances often arise leading to further legal considerations to discuss and have incorporated into your agreements.
Originally published 26 February 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
