Making it in the Music Industry: Part III -- Performing & the Performance Contract

(25 April 2007) -- If you have not read the intro and the previous two parts to this "Making it in 'The Industry'" series, please click the appropriate link(s) below:

The Intro [ click to read ]
Part I -- The Artist Bio [ click to read ]
Part II -- The Artist Press Kit [ click to read ]

The Importance of Performing & Performance Contracts

This really should be a no-brain-er.  If you are trying to make it as an artist, you cannot simply hope to make an impact with your music by recording it.  You must also be a great performance artist with an impressive stage performance.

Your fans are going to want to get "next to you" and see you live on stage.  Having a solid album is just the beginning.  Once you've got good music, it's time to get out there and perform it.  Additionally, while you're out there in their faces, you can sell more albums or give away more demos.

So, whether or not you are getting paid to perform, if you are given the opportunity -- TAKE IT!  You will reach more people than you would anywhere else.  In fact, you may reach a fan base you didn't even dream of reaching, especially if you give such an explosive performance that people will remember you and make you stick in their heads.

From my own personal experience, I went to a Fort Minor concert once and walked away a Little Brother fan because they were opening the show and I was so impressed, within the next week or so, I had already bought their album, became their friend on MySpace, secured an interview with them, and turned all my friends on to them.

That's how important performing is!

In fact, groups like The Roots and artists like Mos Def and Talib have huge fan bases in the United States as well as overseas simply because of their constant touring.  They may never sell a million records, but they will always sell out a venue of hundreds-of-thousands.

So if you can open a show for a major headliner, do it!  Now, I'm a publicist, not a manager or booking agent so I don't know the first thing about booking a performance but I do know that your press kit and bio are integral parts of your overall presentation as an artist when trying to secure a gig with a booking agent.

What I do know, however, is contracts and contract law, so ... it is very important when performing live for compensation, that you have a contract.  And while owners or promoters and/or booking agents in smaller venues are reluctant to sign a written contract, it is a good thing that a contract for live performances do not need to be in writing in order to be valid.  However, it's obvious that proving a verbal agreement can be very difficult so if the person hiring you does not want to sign a formal written contract, at least try to get something in writing -- whether it's a letter of confirmation, an email or even something written on a napkin -- showing the date and time of the performance and the compensation you will be paid.

Performance contracts frequently come in two parts, the general information part showing your name(s), the hiring person(s)' name, date, time, place/venue, and payment terms.  The second part is more complex and detailed and is usually referred to as a "rider."  This part is like a list of demands/provisions that may include all or none of the following: specifications for sound system & light equipment, procedures for ticket sales (including who gets what), promotional strategy, billing, background music, opening acts, food, transportation, and accommodations to be provided for the artist(s).  Generally, as a musician/artist starting out your rider is not going to be long or extensive because you don't have that kind of bargaining power just yet.  Sometimes, all you might get is a rider.

There are some very important things to consider when negotiating a contract for performance:

Who's hiring you?
Are you being hired by a promoter or directly by the venue?  Know the difference!  And if you're being hired by a promoter make sure your contract with them specifies what portion of ticket sales (if any) you'll be receiving and how it is to be calculated because promoters (usually) have to split ticket sales money with the venue.

How will you get paid?
Usually you will be paid one of four ways: 1) a set fee, 2) a percentage of ticket sales, 3) whichever is greater between 1 & 2 or 4) a set fee plus a percentage of ticket sales.

So when determining how much you want to request/accept to be paid you need to know how many tickets there are available for sale, how many are going to be given away as promotional items, and whether you're getting a percentage of gross or net ticket sales.  If you're getting a piece of the net ticket sales, it is preferable to ask what deductions are taken out and to specify them in the contract.

Merchandising Rights
As stated above, the sale of CDs, t-shirts, bumper stickers, posters, and other artist related items can be a VERY lucrative part of your live performance.  However, your contract should state whether or not you have to give a portion of this money made to the venue/promoter.  Some places/persons will want a portion of the revenue you make from your sales however, the standard is never more than 40 percent.

Sample Agreement
The following is a very basic performance agreement and does not include any riders and is to be used for informational and educational purposes only and has not been verified for compliance with any particular state's laws.  You should always consult an attorney for specific legal concerns, issues or problems.

THIS PERFORMANCE AGREEMENT is made and entered into as of _________________, 20__, by and between __________________________, whose business address is _________________________ ("Purchaser") and the musical group or performer __________________________ ("Musician"), whose business address is _____________________________________. In consideration of the mutual covenants herein contained and, intending to be legally bound hereby, the Purchaser and Musician agree as follows:

1) Engagement. The Purchaser hereby engages Musician to render a musical performance (the "Performance"), and Musician hereby agrees to render such Performance under the terms and conditions specified herein.

2) Individuals Comprising Musician. Musician consists of the following individuals:
__________________________________________________________

Musician's obligation to perform hereunder is subject to the unavailability of Musician as a result of sickness, accidents, acts of God, and other reasons beyond Musician's control.

3) Location of Performance. The Performance will take place at the following location:

Name: _________________________________________________
Street Address: ___________________________________________
City/State/Zip: ____________________________________________


4) Date and Time of Performance. The date of the Performance is ______________, 20___. The venue will be available for set-up on (date) ______________ at (time) ________. The Musician will perform ____ sets as follows:

Start & Ending Time
1 ____________________
2 ____________________
3 ____________________

5) Payment. In full consideration for all services rendered by Musician at the Performance, Purchaser agrees to make the following payment in U.S. funds to Musician (select one):

[___] Set Fee. A set fee of ______________________ Dollars ($______).
[___] Percentage of Ticket Sales . An amount equal to ___ percent (__ %) of the (select one) [__] gross [__] net ticket sales.
[___] Percentage of Ticket Sales With Guarantee. The greater of (a) ___________________ Dollars ($_____), or (b) an amount equal to ___ percent (__%) of the (select one) [__] gross [__] net ticket sales.
[___] Set Fee plus Percentage of Ticket Sales. A fee of ______________________ Dollars ($______), plus an amount equal to ____ percent (__ %) of the (select one) [__] gross [__] net ticket sales.
[___] Other. (specify) _____________________________________.

 

a) Deposit. Purchaser will pay ___________________ Dollars ($ _____) of the payment to Musician as a deposit by __________________, 20___. If Purchaser does not pay Musician the deposit, Musician will have the option of canceling this Performance Agreement with no further liability hereunder to Purchaser.

b) Payment of Balance. After the last set on the date of the Performance, Purchaser will pay Musician the remaining balance of the payment in cash or by money order or certified check made payable to ______________________________ or within five (5) business days of the completion of the performance.  The check or money order can be mailed to _______________________________________________________________.

c) Definitions. For the purposes of this Performance Agreement, the following definitions apply: Gross ticket sales means the sum of any and all monies paid for admission to the Performance. Net ticket sales means gross ticket sales minus the actual cost to Purchaser of the following expenses: _________________________________________.

6) Merchandise. At Musician's option, Musician may offer CDs, tapes and other items for sale at the Performance. Musician will retain all proceeds from such sales. To facilitate Musician's merchandising, Purchaser will provide a table and chairs set up in an easily accessible and visible area of the venue.

7) Cancellation. In the event Purchaser cancels the Performance less than _____ weeks prior to the scheduled date, Purchaser will pay Musician a sum equal to (select one)
[__] ______________ Dollars ($ ____)
[__] ___ percent of the set fee specified in paragraph 5. Upon payment of the cancellation fee, Purchaser will have no further liability to Musician hereunder.

8) No Taping of Performance. Purchaser will not, nor will Purchaser allow others to tape, record, reproduce, or transmit in or from the premises in any manner or by any means, the Performance without the written approval of Musician.

9) Miscellaneous. This Performance Agreement and the attached rider(s), if any, set forth the entire agreement between the parties, and may not be amended except in a writing signed by both parties. This Performance Agreement will be governed by and construed in accordance with the laws of the State of __________, without regard to the principles of conflicts of law. In any action or proceeding involving a dispute between the Purchaser and the Musician arising out of this Performance Agreement, the prevailing party will be entitled to receive from the losing party reasonable attorney's fees.

Musician and Purchaser have each caused this Performance Agreement to be signed by its duly authorized representative.

PURCHASER
_______________________________

MUSICIAN
_______________________________


Also, some other things to consider when reviewing a contract are the minimum age requirements of the venue (i.e. 18 and up vs 21 and up), the capacity of the venue, ticket prices, who is signing the contract (i.e. you, your manager, your agent), as well as any additional attached riders.

-Kornika