Recoup Money You’re Owed From Shady Promoters

photo by Benko ZsoltLIVE PERFORMANCE VENUES FUNCTION IN A FORMER ERA.  Handshake deals are commonplace, ink is rarely spilled, and a promoter or venue owner’s word is often all you have to go on before you take the stage.  In a way, this is the best way to go – no reason to complicate a straightforward deal:  I play for ninety-minutes, you pay me.  That said, there are dozens of issues that can block this simple transaction from transpiring and this month’s Legal Pad dives right in:

BASICS:  If at all possible, get your contract in writing.  Most disputes start not because one party is trying to take advantage of the other, but because the parties have different ideas of what was supposed to take place under the agreement.  Putting your terms in writing is a major step in avoiding confusion.

CONTRACTS TERMS: Name, date, location, and room within the location are more important than you think (many small to mid-size venues have various rooms; if you’re traveling to a certain venue, make sure it’s for the right room).  While you’re at it – get your order in the lineup confirmed (the term “headliner” can vary depending on venue).

Payout.  There are many ways to get paid.  A “flat fee” guarantees you a dollar figure so long as you show up and play.  A “percentage of the gate” gives you a cut of the tickets sold.  A “minimum guarantee” is hybrid of the two, allowing you a flat rate, plus a cut of the door (or bar receipts) after a certain number.  There’s incentive for both the venue and performer to lock these rates in before the performance date.

Rider and Personnel.  There is a reason for the infamous “rider provision” of a venue contract.  It allows a band the ability to control (and in some cases demand) certain portions of the set up, performance, and post-show.  For touring groups, the rider provision is a must.  Further, personnel issues should always be laid out in a contract.  Is a soundman provided?  Is he/she mandatory?  Some groups would rather ditch the gig altogether than have house personnel control the sound, while other acts would be grateful to bring one less person on tour.  Spell out these details in your contract.

Show Promotion. If you’re lugging your equipment across country for the first time, there’s only so much that Twitter outreach can do.  Make sure you have in writing who is responsible for promoting your gig.  This is less of a concern for flat fees gigs, where the onus is on the venue to bring people in.  But when you are being paid a percentage of the door, you’ll want to lock in promotion and advertising responsibilities ahead of time.

Liability. Make sure to protect your band’s business and assets when signing the agreement with the venue.  Don’t take responsibility for any problems inherent in the venue’s operation or anything that could be beyond your band’s control.  Some acts will request copies of general liability insurance binders before playing – this will give you some confidence that – in the event someone gets hurt – you won’t be on the hook for related expenses.  However, policies differ; make sure to review before signing.

If you are signing a high-stakes contract or multi-date agreement, there are a host of other matters to be aware of. These are simply the basics.

THE “PAY TO PLAY” ARRANGEMENT:   Some define “pay to play’ in the literal sense: to play a certain venue, a band must pay an out-of-pocket fee.   Promoters often define the process in terms of “pre-sale” tickets. This pre-sale process is the one usually sold to relatively unknown and untested bands.  Under this arrangement, a band is given a certain number of tickets to sell. These, however, are not comp tickets: a band is required to pay the promoter/venue for the tickets upfront.  If the band is unable to sell the tickets on their own, they have to eat the cost (i.e. paying for the privilege to play the show).  For a new band, pay-to-play can be an avenue to playing a live venue.  Other bands may see an advantage to playing an historic or reputable venue.  Of course, there are downsides to these deals.  Bands often find themselves paying hundreds of dollars to perform limited sets along with a random assortment of other acts.  The lineups, particularly with many festivals, are assembled based upon ability to pay the promoter or sell tickets – not because they fit a certain bill or attract a similar audience.

WHAT CAN YOU DO IF YOU DON’T GET PAID?  If you’ve signed a contract with a venue or promoter for a certain amount and they fail to pay, then you may have the right to sue for payment.  In Massachusetts, for example, if the amount is less than $7,000 you can bring an action in small claims at your local district court.  This is the fastest and least expensive way to go (filing fees are approximately $100 and you won’t need a lawyer for formal proceedings).  If your fee is higher, you may have an action in a higher court – which will require professional assistance.  If you find yourself in any of these situations, it can be beneficial to first write a position statement or demand letter detailing your circumstances and the reasons you feel entitled to your request.  This can often be the first step in resolving your issues.  If you have questions or want to make sure it’s done correctly – hire a lawyer who has experience in contracts and the music industry.

Adam Barnosky is a Boston-based attorney and writer. For music industry news, entertainment law updates, or to suggest an upcoming Legal Pad topic, find him on Twitter @adambarnosky.

Disclaimer: The information contained in this column is general legal information only. Consult your attorney for all specific considerations.

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