December/January 2015

by David McLaughlin

The Lawful Truth: Performance Agreements – Part 1

by David McLaughlin

The Lawful Truth: Performance Agreements – Part 1

Live performance is one of the absolute bedrocks of the music industry. There are few better ways for an artist to prove what they are capable of, and to really cement a following, than by delivering quality live performances. With this in mind we’’ll be taking a look at Performance Agreements in this and the next Lawful Truth column to help give you a better understanding of some of the key legal issues involved in these important agreements. 

All legal agreements in the music industry have at least some elements to them that are quite legally unique, due to the specific language and concepts used. Consequently you really do need to get a lawyer involved who is familiar with music contracts to ensure your position is appropriately provided for and protected across a number of issues. However, when it comes to Performance Agreements, the success and effectiveness of the agreement often relies much less on specific and complicated legal provisions.

In practice a Performance Agreement is most effective when the performer and the party contracting the performer for the performance have thoroughly worked through the key practical obligations they each need to adhere to, and have then made sure these are clearly provided for in the agreement. There will always be more in-depth legal aspects that you ideally should get some advice on, but Performance Agreements really do rise and fall on the amount of attention and care that has been given to documenting the key practical aspects of the performance.

Although they may not always be drafted in this kind of order, one of the easiest ways to make sure that everything you need is included in a Performance Agreement is to think about the gig process, step by step. This starts right from any pre-performance promotion or advertising to be arranged and goes right through to when the performers’ gear has to be loaded out of the venue following the conclusion of the performance.

Even just thinking about this high level overview of what is really involved in arranging and staging a successful performance you get a good idea of the broad range of issues that could be provided for in a Performance Agreement. However there are also some particularly key issues that should ideally always be covered.

While it may sound a bit like overkill, the more detail you can provide about the actual planned performance the better. Make sure the day and time of the performance are clearly specified, along with the duration of the performance and any breaks that are to occur between sets within the performance. Likewise if you will be requiring a soundcheck it’s important to ensure that that the time this will occur and the duration are also clearly provided for. This can be particularly important if you are using the in-house PA and sound engineer – they will need to be present otherwise the soundcheck itself will not be a lot of use to you.

Similarly it should be clear when you will have access to the venue to load your gear in. If there are a number of acts performing on the day or evening then these kinds of details become even more important to lock down, as there may not be much leeway in terms of the timing requirements that you have to make sure you stick to.

Promotion is one detail often overlooked when it comes to arranging performances. It’’s easy for the focus to fall on arranging things for the day and the performance itself, but if no one knows the performance is on then it won’t do anyone any good. Consequently in Performance Agreements it should be clearly set out who is responsible for arranging the promotion and any advertising of the gig.

Even if there is no advertising spend that the venue is contributing, it should at the very least be clarified who will be listing the show on free local gig guides and online events websites. If the venue has an email newsletter or social media pages then the contract should also ensure that accurate details about the show are included in any email outs and on these social media pages leading up to the show.

It may also be agreed that the venue is to arrange for the posting of flyers or posters advertising the show within the venue and elsewhere in town where the venue normally has posters placed. Specifying these kinds of expectations become even more important when performers are coming from another town and consequently can’t easily arrange for such kinds of things to be done themselves.

In the next Lawful Truth column we will continue to look at the key aspects of Performance Agreements, including the key issues of defining the performance fees to be paid and how the cancellation of the show by either party should be dealt with.

David McLaughlin is a specialist music lawyer with Auckland law firm McLaughlin Law (