A Brief Look At Live Performance Agreements [Part 2]

In this second installment of a two part series, Justin M. Jacobson addresses additional clauses artists and musicians should be aware of in live performance agreements, such as those surrounding per diems, tech riders, and merchandise.

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Guest post by Justin M. Jacobson, Esq. from the TuneCore Blog

[Editors Note: This article was written by Justin M. Jacobson, Esq. For Part 1 of this series, click here!]

In addition to the considerations we addressed in part one of this piece, there are some other clauses an artist should be aware of and include in a live performance agreement. We will now briefly explore some of those matters below.

Another essential matter discussed in a live performance agreement is whether, in addition to a performance fee, the artist may also receive the cost of travel and lodging, a “per diem” payment for meals and other daily costs; or, in some cases, even more. These additional perks could include the requirements listed in an artist’s technical “rider.”

READ PART 1: Live Performance Agreements

An artist’s “rider” includes the musician’s personal and technical requirements. These could include information about who provides, whose cost, and who can operate any lighting or sound equipment. A “rider” also usually lists relevant information, such as whether any “backline” equipment, such as amplifiers, mixing board, amplifiers and drum kit, are provided by the venue or if the artist needs to bring their own. A “rider” also includes how many complimentary tickets the musician receives, any meals, food, drinks or other “perks” the artist is entitled to in their dressing room.

Technical Rider – Promoter will provide travel arrangements to the Engagement for Artist, including: (a) first-class airfare for Artist plus two (2) guests; (b) transportation from the airportto the hotel; (c) minimum of three (3) rooms in a four-star hotel accommodation (one (1) King size bed for Artist plus two (2) guests with two (2) nights booked for one (1) concert and three (3) nights booked for two (2) concerts); (d) transportation from hotel to Venue; and, (e) a per diem for meals of one hundred ($100.00) dollars per day. Airline tickets and hotel reservation information will be provided by Promoter in advance and per diems will be either supplied in advance or provided at the time of Engagement by Promoter. Artist will cooperate fully in making advance travel arrangements At Artist’s sole cost, Artist shall provide its own “backline,” sound and lighting equipment for the Engagement.

Another clause that an artist should be aware of and which is typically utilized in this type of contract is a “radius” clause. This provision imposes a restriction on the artist that prevents them from performing for a certain amount of time before a show in selected area or in a specified distance from the venue. This essentially means that the musician cannot promote a concert the following night or a few nights before in the same town or one in the vicinity as it could compete with and impact the existing show’s success. An artist should try to limit the distance and amount of time in any radius clause.

An artist’s ability to sell its own merchandise is another important matter addressed in a live performance contract. A musician is typically provided the right to sell their own merchandise at the venue, including any clothing, CDs, DVDs, posters, stickers or other artist memorabilia. Some venues charge a “hall fee” and others do not. A “hall fee” is a specified amount that the concert hall charges for the artist to sell its own merchandise. It can be a flat fee or a portion of sales. It can be as little as five (5%) to ten (10%) percent or more and usually is a percentage of the artist’s total sales. In some cases, the venue may provide the artist with its own personnel to operate and sell the merchandise; and, in those cases, the premises typically charges a “hall fee,” which may be closer to twenty (20%) percent.

Below is a clause regarding an artist’s ability to sell merchandise during their performance.

Merchandise – Artist shall be entitled to and have the sole and exclusive right but not obligation, to sell Artist-related or show-related merchandise, including audio and audio-visual recordings, such as posters, souvenir books, clothing, photographs, recordings and other such product (“Merchandise”) immediately before, after and during the Engagement and the entire receipts thereof shall belong solely to Artist. Neither Venue nor any third party may distribute or sell such material at the show, and Venue shall use best efforts to prevent bootleggers from doing so. Venue shall cooperate with Artist in prosecuting any bootleggers. In the event that the Venue provides personnel to sell Merchandise, the Venue will receive ten (10%) percent of the gross sales of any Merchandise (except recorded material) sold in conjunction with this Engagement. All Merchandise must be inventoried upon arrival and upon completion of sales by an authorized representative of the Artist.

An artist engagement agreement should also list any licensing, insurance, or security requirements that the event producer must comply with. This includes obtaining event liability insurance in case an attendee is injured or any of the equipment or the venue itself is damaged. A concert venue should also typically provide any security to protect the artist and the artist’s belongings from destruction or theft.

A sample clause exemplifying this point is below.

Licenses/Insurance/Security – Promoter will be responsible for and shall obtain any and all required licenses and permits, and shall obtain and have in place all reasonable and necessary fire, liability and other insurance as may be appropriate and/or required by law for the Engagement as well as adequate security to protect Artist, Artist’s property and equipment and all persons in attendance of Engagement and will look solely to Promoter’s own insurance in the event of any damage or loss of any kind whatsoever, including personal injury, and/or damage to venue and/or sound or other electronic equipment, in connection with the Engagement. Venue and their employees, agents, affiliates, directors and heirs hereby expressly and without reservation forever release and hold harmless Artist with respect to any damage, injury or loss whatsoever.

One final matter that should be addressed in an agreement is the procedure for a cancellation or other breach of the agreed upon performance date. Typically, the agreement states that if the event producer cancels the artist’s show at any time after the deposit is provided, the artist is entitled to retain the deposit. In the more extreme cases, especially if the cancellation by the event promoter is less than forty-eight (48) hours before the scheduled event, the contract may require the promoter to pay the entire fee. This could be due to the fact that if the event was cancelled earlier, the artist could have potentially found another “gig” for that night; however, such a last minute cancellation might have prevented the musician from that opportunity. Ultimately, this is an essential point that should be discussed and agreed upon in a formal writing so that all the parties know exactly how that procedure works if a cancellation or other breach occurs.

Below is a clause that addresses that matter.

Cancellation/Breach By Promoter – In the event that Promoter breaches any of Promoter’s obligations in the Agreement or if Artist and/or Artist’s Agent learns that the financial credit of Promoter has been substantially impaired, Artist and/or Artist’s Agent may immediately cancel the Engagement. In the event Promoter cancels the Engagement on less than five (5) business days written notice to Artist and/or Artist’s Agent, Promoter shall forfeit the Deposit to the Artist. In the event Promoter cancels the Engagement on less than forty-eight (48) hours written notice to Artist and/or Artist’s Agent, Promoter shall forfeit the entire Appearance Fee payable to the Artist.

As with any business relationship, it is prudent to ensure that all parties agree and fully understand the terms of their arrangement. In the entertainment business, it is particularly important that essential terms, especially as they relate to an engagement, are clearly defined and a formal writing helps. Therefore, as discussed above, an artist should attempt to enter into a formal written performance agreement outlining the material terms and obligations to ensure that everybody is on the same page for the upcoming show. Failure to create such an agreement can leads to issues down the road regarding payment, cancellation or other event presentation matters.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted. Some of the clauses have been condensed and/or edited for content purposes, so none of these clauses should be used verbatim nor do they act as any form of legal advice or counseling.

Justin M. Jacobson is an entertainment and media attorney for The Jacobson Firm, P.C. in New York City. He also runs Label 55 and taught music business at the Institute of Audio Research.