In this article, Sucharita Ghosh discusses the nature of agreement to enter into while hiring a singer.
Since last month a young entrepreneur of India, Arjun Jain and his startup , white fox India is all over the news for successfully bringing Justin Bieber in India by spending USD 4 million.
Nowadays it becomes a trend to hire singers, comedians and other musicians in the events whether it be college fest or a private event. College, universities and other event organizers are spending huge amount of money to bring celebrity singers to perform live. As they are paying a lumpsum amount of money they also want to ensure that the event must be successful without any hindrance and the singer perform without causing any misconduct. To ensure this beforehand the event organizers are preferring to enter into an agreement with the singer.
So in this article, I am going to discuss about how to make an agreement to hire a singer?
WHY AN AGREEMENT WHILE HIRING A SINGER IS NEEDED
Well, you may think why it is necessary to enter into a legal agreement to hire a singer???
Here, I am describing some situations :
- You are a event organizer and hiring a famous singer for a party, the singer confirmed his appearance and you already started selling the tickets and made banners with the name of the artist to attract audience. But after almost all tickets are sold, just 2 days before the event the singer is informing you that he has another events to cover, so won’t be able to come.
- If you are a singer, and got a wonderful offer to perform your own composed song in an event .But unfortunately neither you received any credit, nor you have received any payment. So, what action can be taken?
- How would you feel if you spent thousand bucks for bringing a top pop singer in an event and without informing anyone the artist did not arrive???
In this above situations what remedies would be available? Would any legal action can be taken against the singer?
Well, the solution to handle these kind of situations is to enter into an agreement with the singer before hiring him/her. In all of the above situation the artist or the organization both can get fair remedy if a proper agreement is there. So a prior agreement would be beneficial for both the organizer and the performer.
In this article I will be discussing some legal points what one needs to include in a contract to hire a singer.
PURPOSE OF HIRING
A singer can be hired for various purposes like
- By the organizers of specific events
- By a band
- By clubs , pub , bar for live singing
- By recording studio
- Hiring for backup singers
- By film producers
- For performing in a specific event like wedding, party, religious ceremony, any opening or closing ceremony of some event
- Or any agency can hire singers for specific time period to send him/her for performing in the events
Here I am writing about an agreement which you need to make for hiring a singer for events.
WORK FOR HIRE AGREEMENT
While hiring a singer or musician one need to enter into a contract for service agreement (also known as “work for hire” agreement).
A contract of service agreement is an agreement between employer and independent client where an independent contractor, such as a self-employed person or a vendor, is engaged for a fee to carry out an assignment or project. It is a strictly business to business contract between two party on a buyer and supplier basis. Here the organizer is the buyer and the performer is the supplier of service. There is no question of any employment relationship.It is a kind of freelance agreement.
IMPORTANT CLAUSES OF AN AGREEMENT TO HIRE A SINGER
There are various points which are important for an agreement to hire a singer. Following are some points that must be included in a contract of service:
- PARTIES DESCRIPTION/ BACKGROUND
- DESCRIPTION OF SERVICE
- TERMS OF AGREEMENT
- RECORDING, REPRODUCTION OR TRANSMISSION OF PERFORMANCE:
- CANCELLATION POLICY
- MUSICIAN REPRESENTATION AND WARRANTIES
- INDEPENDENT CONTRACTOR
- GOVERNING LAW AND DISPUTE RESOLUTION
- MISCONDUCT OF ARTIST
- FORCE MAJEURE
- REPRESENTATIVE’S AUTHORITY TO CONTRACT
For hiring a singer to perform in events, one need to make an agreement which includes the following points.
In the beginning of the agreement the description of the parties between whom the contract is going to be made, should be mentioned with necessary details.
A beginning clause of the agreement may look like this:
“ This agreement, made this _______ day of _____________, 20__, is for the services of singing between the undersigned singer(s) (includes accompanying musicians as described below, hereinafter referred to as “ARTIST”) and the buyer who is to conduct an the event listed below (hereinafter referred to as “BUYER”). ”
DESCRIPTION OF SERVICE
In this clause ,the full description of the service need to be mentioned. Here one can mention the date, timing, details about the other musicians along with the singer,location of the performance etc.
“The BUYER desires to hire ARTIST(s) as an independent contractor for singing purpose.
generally described below (the “Performance”) on the following days and ARTIST(s) agrees to
provide such Performance at said Concert.
__________ day of _____________, 20__, Time:________ Duration: _____
__________ day of _____________, 20__, Time:________ Duration: _____
__________ day of _____________, 20__, Time:________ Duration: _____
Location of Concert: The physical location of the Concert is:_______________________________________________________________”
TERM OF AGREEMENT
In this clause from when the contract will be enforced can be mentioned.
“This agreement will take effect immediately upon execution , and will remain in effect until the services set forth herein have been completed.”
All the details about the payment need to be predetermined. The payment can be made on the basis of hours of performance, venue of performance. One can mention the mode of payment in the agreement.
“The BUYER agrees to pay ARTIST(s) or his/her agent an aggregate of INR___________ by check immediately after the Performance(s). Check shall be made payable to the MANAGER and upon proper endorsement of said check by MANAGER, BUYER agrees to cash the check for the MANAGER. The MANAGER shall distribute the amount to ARTIST(s) as agreed.”
RECORDING, REPRODUCTION OR TRANSMISSION OF PERFORMANCE
In this clause the restriction on recording the performance must me mentioned. In some events the organizers of the event can restrict everyone from recording the event except written permission. It can be written like this:
“BUYER will use means available to prevent the recording, reproduction or transmission of the Performance without the written permission of BUYER, ARTIST(s) or ARTIST’s representative.”
A cancellation policy is very important part of an agreement which tells about when it is possible to cancel the agreement and what actions can be taken if the singer violate the terms of the cancellation policy suddenly didn’t arrive.
A prior notice must be given to terminate the agreement. The clause can be framed as
“A prior notice shall be given before 14 days of the performance to terminate the agreement. Cancellation of the performance after selling out the tickets shall attract fine from the ARTIST(s). The ARTIST(s) shall reimburse all the losses along with price of the tickets including fine of rupees 50 thousand for harming the reputation of the BUYER and also indemnify all the lawsuit file against the BUYER. If the BUYER cancel the event before less than 10 days of the performance the BUYER shall be liable to pay full amount of payment to the ARTIST(s).”
MUSICIAN REPRESENTATION AND WARRANTIES
In most of the entertainment rights deals, the artist makes the bulk of the representations and warranties.The buyer will require the artist to represent that the material which is original and Non-Infringing i.e the buyer’s use of the material will not infringe the copyrights or other property rights of any person or company, nor be invasive of privacy, or defamatory toward any person. By this clause the artists also takes the warranty to fulfill the clauses what are there in the agreement, independently and without the consent of others, and violation of which can be resulted into legal action. when there’s a breach of warranties, the breaching party is required to Indemnify the non-breaching party.
The clause can be written as:
“ The ARTIST(s) represents and warrants that he/she has obtained all rights, clearances, licenses, or other permissions necessary for the production of the Work, and that the Work does not infringe on the rights of any other person or entity, including any copyright or other intellectual property rights.
ARTIST(s) represent and warrant that they are knowledgeable about the copyright laws of India as applicable to the Performance. ARTIST(s) shall not perform any copyrighted materials of others during Performance without full compliance with such applicable copyright laws. In the event that ARTIST(s) breaches this representation, warranty and covenant, ARTIST(s) hereby agree to INDEMNIFY AND HOLD HARMLESS BUYER and its employees, guests and agents from and against all liability, loss, damages, claims, and expenses (including attorney’s fees) arising out of said breach.
The ARTIST(s) represents and warrants that he/she has the legal ability and standing to execute this Agreement without the consent of any other person or entity.
He/she represents and warrants that it has not granted, nor will it attempt to grant in the future, any other person or entity any rights or interest in the Work or in the copyright in the Work.”
By this clause the singer takes the acknowledgement that he/she is not an employee of the buyer, so no right of employer-employee will be applicable. singers are independent contractor and they can control and conduct the performance as they want.
“ARTIST(s) acknowledges that he or she is an independent contractor and not an employee of BUYER. ARTIST(s) shall have sole control and direction in the conduct of the Performance.”
Under this clause all the amenities are mentioned what is going to be provided by the buyer to the singer(s) at the time of performance. Here the organizer can mention what are the facilities to be given to the singer. Amenities clause can contains the following:
- “ Stage: At its sole expense,the BUYER shall furnish the stage, and stage lighting, sound, and power for the Performance, and BUYER shall provide all stagehands required to assist the setup for and takedown after the Performance.
- Dressing Rooms: BUYER shall provide ARTIST(s) with 3 private dressing room, which will be clean, calm, and quiet ,well-lit and air-conditioned.
- Parking: BUYER shall provide parking spaces for vehicles in a location of close proximity to and with direct access to the backstage area where Performance will take place on the date(s) of Performance. This parking space will be reserved for ARTIST(s) for a period of four (4) hours prior to the Performance and ending four(4) hours following the Performance.
- Security: BUYER shall provide security for the backstage and stage areas before, during , and after the Performance. BUYER shall provide security personnel to protect ARTIST(s) and property as deemed appropriate.
- Passes BUYER shall provide identification passes to the ARTIST(s) and ARTISTs’ assistants for the backstage and stage where Performance is to be held.
- Complimentary Tickets Unless otherwise agreed, Purchaser will allow 2 guests per ARTIST(s), with a maximum of 30 tickets.”
Promotion is an important part of an event. In this clause all the term relating to promotion can be mentioned. This clause says that organizer can hold to right to promote the singer’s appearance and use the artist’s name, photos and other promotional materials of such artist to make the event popular and attract audience.
The clause may be drafted like this
“ BUYER shall be entitled to advertise and promote the appearance of ARTIST(s) in the event. ARTIST(s) acknowledges that BUYER will rely on the terms in all such promotions and advertising and in the brochures to be printed. ARTIST(s) hereby acknowledges and agrees that BUYER may use ARTIST(s) name, photograph, likeness, facsimile signature and any other promotional materials in all such promotions, advertising or other activities used to increase attendance in the event.”
GOVERNING LAW AND DISPUTE RESOLUTION
This tells about under which law the clauses of the agreement is enforceable and if any legal dispute arises where and how it needs to be settled.
“This agreement shall be governed by the laws enforced in India . Any dispute arising out of this agreement shall be referred to the arbitration according to the law governing in India and shall take place in the same city of the event and a sole arbitrator will be chosen by both the parties in writing and the decision of such arbitrator shall be binding on the BUYER and the singer.”
Like other agreement in a contract for sale agreement with the artist the buyer must mention the confidentiality clause in an agreement where it will be mentioned that no confidential information can be disclosed by the singer . the clause may be framed as follows:
“The ARTIST(s) shall keep all the confidential information absolutely confidential, and prevent its release to the public,as a term of this agreement. The ARTIST(s) shall agree not to disclose , report, use for any purpose, any of the confidential information disclosed to the ARTIST(s) by the BUYER as a result of providing the services,or which he/she has obtained or accessed.”
Merchandise rights are the right to sell the goods featuring the name, likeness, album names, logos of the performer. The buyer can or cannot grant the right of merchandise and that must be clearly mentioned in the contract.A sample merchandise clause can be written as :
“The ARTIST shall have the right to sell Artist-related t-shirts, stickers, posters and recorded a material (“Merchandise”) immediately before and after, and during, the performance. In that event the BUYER will receive 30% (thirty percent) of the gross sales of any merchandise (except recorded material) sold in the event.”
MISCONDUCT OF THE ARTIST
In this clause it is discussed that who will be responsible if the singer caused any misconduct.If the artist caused any misconduct or misappropriate behaviour during the performance the buyer will not be responsible for the same. As there is no employer-employee relationship between two parties no question of vicarious liability will arise.
The clause can be read as
“If any misconduct caused by the ARTIST(s) the BUYER shall not be liable for the same. The ARTIST(s) shall be solely responsible for his/her behaviour and legal action can be taken against him/her.”
A Force Majeure clause is a contract provision that allows a party to suspend or terminate the performance of its obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.Sometimes there could arise a situation when for some genuine reasons the singer couldn’t perform or the manager couldn’t organize the event.If a singer unable to perform or for any reason the organization who is hiring the singer need to cancel the event, there must be specific grounds mentioned in the agreement when the cancellation should be done. This clause is used to cancel the performance in an emergency.this clause may go on as:
“Neither ARTIST(s) nor the BUYER shall be liable for failure to appear or perform its obligations under this agreement in the event that such failure is caused by or due to the acts or regulations of public authorities, labor difficulties, civil tumult, inclement weather, strike, epidemic, interruption or delay of transportation service, or any other legitimate condition or occurrence beyond their respective control.”
This clause states that if any part of this agreement becomes unenforceable , the whole agreement won’t be invalid, the remainder will remain in force.it can be written as:
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
In this clause the manner of sending the notice is specified. Such a clause may be read like:
“Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to the office address of the BUYER/ ARTIST as the case may be.”
REPRESENTATIVE’S AUTHORITY TO CONTRACT
This clause specifies that who signs on behalf of the singer has the authority to do so and that her/his signature binds the singer to the terms in the contract.
The clause can read as:
“ By signing this document, the representative and/or agent of the ARTIST hereby represent that such person is duly authorized and that the ARTIST agrees to be bound by the provisions of this Agreement. It is expressly understood and agreed that in acting hereunder solely in the capacity of representative or agent of the ARTIST,the said person is not a party to this contract and shall not be liable or responsible in any way for the omissions of ARTIST , nor for any failure by ARTIST to adequately perform or comply with any term or condition hereof.”
After mentioning all the clauses, the agreement must be signed by both the parties.
These are the main important clauses which are to be mentioned in the contract for hiring a singer.