Performance Agreements - Part 2

1st July 2009 - By David McLaughlin c/o of New Zealand Musician Magazine
In this edition of our Music Law Newsletter we’ll be continuing with our discussion on performance agreements and some of the key issues in these agreements that you should be aware of. This Time?
Having last time considered some of the general logistical issues that should always be provided for in a performance agreement such as sound checks load in and load out times and advertising and promotion in this edition of our Music Law Newsletter we’ll be looking at some of the more legal issues such as payment and cancellation provisions and also how to best enforce your rights under the agreement. Payment
How an artist is to be paid under a performance agreement can vary greatly from situation to situation. However as with all other aspects of a performance agreement the most important issue is that the arrangement is fair to both parties. It is also very important that there is a clear understanding of how payment is to actually occur. For instance for larger shows it is generally fair for the performer to expect a deposit to be paid on signing of the performance agreement. The amount of this deposit can once again vary greatly depending on the situation and the bargaining power of each party but deposits of even up to 50% of the total performance fee due are sometimes seen. Other Income?
If the artist is not to be paid a straight performance fee but rather is to take a share of door or ticket sales or even a share of the food and beverage sold by the venue on the night then great care has to be taken in defining exactly how these payments will be calculated and who will do the calculation. The simpler these terms can be kept the better. Also ideally with the exception of any deposit already paid the performance agreement should provide for all amounts due to the artist to be paid immediately following the conclusion of the performance. Cancellation?
The issue of how to deal with the cancellation of a show should also be provided for in a performance agreement. These provisions in a performance agreement obviously need to provide for the situation where either the artist or the party contracting the artist for the performance needs to cancel the show. In the case of the other party cancelling the show the artist should be entitled to keep any deposit already paid. Depending on how late the cancellation occurs it may also be reasonable for the artist to expect a further payment to be made to reflect the added cost and inconvenience that goes with a late cancellation. Artist Cancellation?
Where it is the artist who is cancelling a performance it is not necessarily unfair to expect the artist to have to repay any deposit they may have already been paid. An artist should however resist wherever possible any other payments they may be required to make for a late cancellation. However as cancellation whenever it does occur is always likely to be a highly contentious issue it is once again vital that whatever procedures or provisions are to apply both parties are clearly aware of their obligations and will realistically be able to comply with them. Clearances?
Another issue that falls more into the legal side of things that should also be provided for in a performance agreement is that all necessary clearances and permissions required for the show to take place have been obtained by the party who is contracting the artist to perform. For instance there may be specific licences or other permits required from councils or local authorities for certain types of concerts or festivals and the artist needs to be confident that the person promoting the show has total responsibility for these. This is important for two reasons firstly so as to ensure that the show itself will actually be able to go ahead as intended and secondly so that the artist can in no way be seen as being liable to any third party in the event that the show does go ahead and such licenses and permissions have not been obtained. Insurance?
Of a similar nature to the above the performance agreement should also make it clearly the responsibility of the party contracting with the artist for the performance to obtain and hold all appropriate insurance to cover any risk to third parties that may arise from the holding of the performance. Enforcement?
The enforceability of performance agreements is also an important issue to consider. In the event that there is significant money involved in respect of the performance it may be appropriate to clearly provide in the performance agreement for the procedure that the parties will follow in order to resolve any dispute that arises between them. To bring about a resolution to a dispute in a faster way than that possible through the courts and also to ensure that any such proceedings are conducted on a confidential basis it may be appropriate to consider providing for the parties to the performance agreement to have to go through mediation and/or arbitration to resolve the issue. Disputes Tribunal?
When it comes to the enforceability of performance agreements even if there is not enough money involved to justify paying for a lawyer to get involved there is always the possibility that a dispute could be referred to the disputes tribunal. This is a very cheap way of getting a legally binding decision on an issue. Even if you don’t have a formal performance agreement as such if you have written or email correspondence between yourself and the person who booked the show clearly showing the terms you both agreed to at law this could be deemed to actually be a legally binding contract which you could still take to the disputes tribunal. Oral Agreements?
Even if the information you are relying on is not all in writing you may still have a legally binding contract at law but unfortunately in these situations the exact terms that were agreed on may be more difficult for you to prove in the disputes tribunal. This once again highlights the importance of keeping good records and also that any agreement that is proposed is very clearly set out.   Questions?
If you have any queries or questions in respect of the above please don’t hesitate to contact me at or on 021 630 201 or 09 363 2738. I can also be contacted through myspace at   Pass it on
Know someone who you think may be interested in the information in this newsletter? Feel free to pass it on to them! And if someone has sent you on this Newsletter we invite you to register yourself to get copies of our upcoming newsletters sent direct to your inbox. Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article. This article written by David McLaughlin of McLaughlin Law recently
appeared in New Zealand Musician Magazine and has been reproduced with
the kind permission of New Zealand Musician Magazine. RELATED LINK
Performance Agreements - Part 1 (1May09)