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This article is written by Atchaya J, who is pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction to a band performance agreement

Picture this, you are a bandleader. Your band has been booked for an international event in advance of three months. You make sure to conduct the practice sessions at your own cost since you have been promised advance payment one month before the event by the organiser. Now, if the organiser cancels the show abruptly, you can recover the payment only if there is a ‘band performance agreement’ intact.

 What is a band performance agreement?

A band performance agreement is an agreement that contains the terms and conditions of understanding between a band or their representative and the music venue or promoter who is responsible for organising the performing event. It lays down the obligations of both the band and the organiser for them to understand the scope of their responsibilities.

 Need for a band performance agreement

A band performance agreement protects the interest of the two signing parties which are as follows-

  1. Organiser: It could be an independent agent, agency, music venue owner, club venue, or promoter.
  2. Artist: It could include a solo performer, band, bandleader, musicians, DJ, etc. We will concentrate on the band for further discussion.

Significance of band performance

Bands are often vulnerable to get deceived into performing for free without a contract legally binding their terms with an organiser. Getting gigs is mostly worked through word of mouth or recommendations. For emerging bands, trust is the only factor to rely on while getting work. Organisers take advantage of this loophole, even small venues and promoters don’t prioritise being bound by contract to cut down on liability.

Thus, it becomes extremely important for the bands to enter into an agreement before the performance to hold the non-performing party liable in case anything goes wrong. A band performance agreement is often a really simple and short documents. This is possible due to the nature of such agreements where the scope of complexities is very less. Nevertheless, the agreement depends on the nature of the event taking place. Band performance can range from small gigs to big gigs, repetitive gigs to one-time performance, operating in restaurants or bars to huge concerts.

Essentials to include in a band performance agreement

Place, date, and time

This section covers the description of the venue service such as the venue’s name, location, the date and time of the performance. In case of repetitive performance, the schedule shall be included in tabular format or attached in the annexure.

Performance of service

Performance of service includes the details of performance and band performers. The number of performers, their backup artist in case any member has to cancel at the last moment, number of sets, stage and lighting requirements, extra equipment. “Drunken Musician” is a cliché highly romanticised in the media. However, such is not appreciated in real life. Thus, both parties need to agree to common reasonable terms regarding intoxication and performance.

Payment

As discussed earlier, most of the time bands rely on the word of the organizer to receive payment later. This clause is important to bring in liability of the organizer to pay the band promised amount. Payment terms lay down the mode of payment, details of bank account, a period within which the payment has to be made. As bands tend to perform nationally and across borders, they should specifically include the currency of payment.

Food, drink, and parking 

The band can avail some discount in the venue for food and beverages, the extent and range of same to be clearly mentioned in this section. Organisers are responsible for arranging places for the band to park vehicles and load and unload their gears and equipment. The band should put down terms of arranging the place overnight or a day prior or the proximity of the place to the venue.

Intellectual Property

The recording of the band performance, copyright over recording, audience permission regarding the recording or live streaming, and related terms are contained in this section. Promotion through the recording to be discussed in advance to avoid copyright infringement.

Representation and warranties

This clause contains the valid representation made by both parties. Anything proved contrary to it will attract misrepresentation under Section 19 of the Indian Contract Act, 1872. The organiser represents valid licensing to operate, eligibility to enter into a contract, non-inclusion in blacklist, and others. Similarly, a band makes certain representations about authenticity or being a member of any music union and other related aspects.

Cancellation

The agreement should contain fair cancellation terms catering to the needs of both parties. This section outlines the minimum requirement for canceling the event or series of events. For a band, it is usually required to cancel before a reasonable time for the organiser to find another band. For organisers, the cancellation after the minimum time period requires it to pay the band in full.

Indemnification

The organiser is presumed to indemnify and hold the band harmless for any claims of property damage or bodily injury caused by the audience.

Force Majeure

It is important to include a ‘Force Majeure’ clause to protect the interest of both the parties in case of an inevitable event. This clause outlines the events which would automatically absolve the obligations of the party without any consequences. These usually include ‘act of god’, wars, natural disasters, man-made disasters and others. The pandemic of COVID-19 serves as the best example of recent unforeseen circumstances. Under this clause, it is made sure that the parties undertake reasonable efforts to mitigate the damage and shall not be liable otherwise.

Dispute resolution

Bands usually perform across various jurisdictions and have multiple arrangements across regions. In case any dispute arises, dispute resolution would deal with such complications. It will deal with questions such as – Where will dispute resolution take place? Will it be the jurisdiction of the band or the organiser? Will the resolution mechanism be litigation or arbitration? Which party will bear the legal costs?

Arbitration mechanism has gained a lot of preference in such a sensitive industry of entertainment and media. It contains some crucial terms of arbitration-

  1. The seat of arbitration and governing law- Parties are at the discretion of choosing the seat of arbitration and the governing law according to where they operate.
  2. Language of arbitration proceedings- Bands are often subject to different languages, this calls for freedom to choose the language of arbitration proceedings.
  3. The sole arbitrator or multiple arbitrators- This choice is agreed upon by the parties to avoid any confusion in the future.
  4. Cap on arbitrator’s fees- It specifies a cap on the amount of fees to be borne. Also, the details of a party or both of the parties to bear the fees should be put down.
  5. Appointment procedure- Here, the role of industry-specific choice comes into play. The parties are at a choice to appoint arbitrators pertaining specifically to the entertainment and music industry. This makes the proceeding expert-oriented. 
  6. Time limit- Constitution of the specific tribunal and the issuance of the award can be put under some time limit as against court proceedings where no such tool is available to the parties.
  7. Delays- Delays are subjected to costs to be borne by the non-performing party to make the whole process function quicker.
  8. Confidentiality- Proceedings of the arbitration can be agreed upon to make them confidential and private as against domestic litigation as the reputation of bands are usually fragile.

Here are some International Arbitral Institutions specialising in the entertainment and music industry-

Any unique clause

Apart from the usual operative and boilerplate clauses, any other terms unique to the band or the gig should be included in a separate clause. It is necessary to put down such terms in writing as they are not usual and should leave no room for any ambiguity. This can include anything like pre-event or post-event accommodation arrangement, travel costs, or no swearing policy, etc.

Merchandising terms include the eligibility of the band to sell their merchandise, availability of specifically booked areas for merchandise sale, and required furniture. Sale commission for the organizer should also be discussed in advance. Some organizers arrange backstage arrangements for water, tea, energy drinks, alcohol, coffee, food, and other hospitality services. Any such request is required to be added to the clause.

Agency contracts

Bands who perform in association with an agent, for instance – a wedding band, would be mostly bound by an already existing agency contract. It is equally essential to critically review the agency contract either by the band themselves or through a lawyer. Any issue with the contract must be negotiated before signing it.

Conclusion

A band performance agreement is an ultimate tool that safeguards the interests of bands from organisers operating in bad faith. Even with a legally binding contract, one is bound to face a breach by any party. For bands, it is always advisable to find the list of “Blacklisted” organisers or venues through online forums and platforms. Organisers equally are assumed to conduct ordinary diligence about the bands before entering into an agreement. Any discourse in performing the obligations by any party thereafter shall be dealt with through a mutually decided resolution mechanism mentioned in the agreement therein.

References


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