You just booked the gig of a lifetime. You’re getting your merchandise together, rehearsing your show and planning the best setlist, when the promoter calls to tell you she wants a live performance agreement in place. Don’t panic! Live performance agreements are an important way to provide clarity and manage expectations for the artist, promoter and venue. Let’s unpack the basic clauses to include in your agreement, as well as some key provisions to look out for.
- The Engagement Information
The engagement information sets out the basic parameters to the agreement, such as the parties to the agreement (e.g., the artist or band and the promoter), the name of the venue and the date and time of the performance. The time of your performance should be clear to you.
Further, this provision should also include timeframes for soundcheck and equipment load-in and load-out to ensure members of the crew are aware of timing expectations. If multiple artists are performing, the order and timing of each performance should be set out in the engagement information.
- The Financial Provisions
The financial provisions lay out how payment is made to the artist. Part of the artist’s compensation is typically paid upon signing, with the total fee usually due within 48 hours of the conclusion of the performance. Artists can be paid in many ways. Below are some of the methods of calculating payment:
- flat fee with no percentage of ticket sales
- only a percentage of ticket sales
- a guaranteed sum or percentage of ticket sales (with the artist receiving whichever sum is higher)
- a guaranteed sum and a percentage of revenues/ticket sales above the guarantee
If the payment is calculated based on ticket sales, the agreement should specify whether the payment will be calculated based on net ticket sales or gross ticket sales. The agreement should also address whether there is a booking deposit, whether the promoter will be covering any travel costs or accommodations, or whether any deductions will be made from ticket sales, such as credit card fees.
The financial provisions can become quite complex, so be sure to have a clear understanding of the promised payment before drafting or agreeing to any specific terms.
- Artist’s Performance Services
The agreement should state that the artist will provide a musical performance consisting of either a certain number of songs or that the show will last for certain duration. Additionally, this provision should address whether the artist’s performance will consist of original compositions, covers or a mixture of the two. This provision might request that the artist has the requisite rights or licenses to perform all songs in the show, and will have the venue warrant that it has all relevant licenses as well, including public performance licenses from performing rights organizations, or PROs.
- Termination/Cancellation
The termination provision should specify the timeframe for when the artist and promoter can cancel the performance. It should also specify the consequences of a cancellation. For instance, the artist may be able to cancel up to 48 hours in advance of the performance. If the promoter cancels, this provision should address whether there is a cancellation fee. Because of the COVID-19 pandemic, force majeure clauses are now under closer scrutiny; it is important to make sure that the parties have flexibility to cancel based on circumstances out of their control. Often, there is language providing that the artist will receive a specified percentage of the total fee upon the promoter’s cancellation.
- Promotion Obligations
Promotion provisions should specify whether the promoter has any obligation to advertise the performance. For example, the promoter may agree to promote by using best efforts to obtain calendar listings, feature articles, interviews with the artist, reviews of the performance and secure placement for the artist’s recordings on local radio stations or television media. The artist should also get approval rights over the use of their name, image and likeness in certain forms of promotion in this provision.
- Tickets
A ticketing clause should specify the cost of a ticket to the performance and how many tickets are available in total. Some venues will have tiered ticket prices and may include a provision with information on average ticket prices and estimated revenue for the venue. With respect to a guest list, the artist should clearly specify how many complimentary tickets will be available for the artist and how many of these tickets the promoter will be entitled to. If the artist is receiving payment based on ticket sales or venue revenue, the artist should advocate for the right to inspect ticket sales records.
- Merchandise
Potential deductions from ticket sales mean that merchandise sales are an important way for an artist to earn additional revenue. As such, it is important that the artist clarify where merchandise can be sold during the performance and whether the venue is entitled to any percentage of the merchandise sales. The agreement should note whose employees will staff the merchandising booth. In any event, artists will want to include a sentence in this provision making it clear that the promoter is not granted any of the artist’s intellectual property rights related to the merchandise.
- Photography & Video/Audio Recordings
Artists often hire photographers and videographers to photograph or record shows for promotional purposes. If you are an artist that wants to photograph or record a show, then your performance agreement should identify the parties that will be recording or photographing the show and specify when these individuals may and may not be onstage with you. Ensure that the venue posts a notice to the attendees – akin to a crowd release – for their consent to be recorded as well. Further, artists should include a provision specifying that the agreement does not grant any rights or other licenses that allow the promoter to record, videotape or broadcast the artist’s performances or sound recordings.
- Technical Needs
The agreement should include a provision about the technical needs of the artist, including which party is responsible for lighting, sound and musical equipment. It is important for the artist to know in advance what equipment each party will provide and whether the venue can support the artist’s equipment. In some instances, artists may want to incorporate a technical rider into the performance agreement. A technical rider can specify the artist’s technical needs in a more complete manner. Some artists require a tech rider if they want to work with certain visual artists, special effects, sound systems, lighting rigs or other equipment. Tech riders also are commonly found in agreements with larger venues, like arenas or stadiums.
Other Important Provisions
Other important provisions that artists and promoters should consider addressing in their agreement include the following:
- Hospitality Rider: is the promoter providing the artist with a hospitality package (e.g., a dressing room, food and beverages, lodging, transportation, wardrobe and glam/styling, a per diem)?
- Security: what security is the promoter providing for the artist and the artist’s equipment?
- Access: what areas of the venue will the artist and the artist’s team have access to?
- Background music: does the artist have approval over background music played before and after the performance?
- Insurance: does the promoter’s insurance coverage extend to the artist’s performance?
- Independent Contractor: does the agreement specify that the artist is not an employee of the promoter, but rather an independent contractor?
Conclusion
Depending on the event, a live performance agreement can become intricate and complex. If you need help drafting a live performance agreement, an experienced entertainment attorney can help. Contact a member of our team for next steps.
Carlianna Dengel is admitted to practice law in New York and California.
