History and Context
In ancient times, contracts were derived for the same reasons they are used today, to protect two individuals or groups making an agreement against one party changing their mind mid transaction or delivering less, or not exactly, what was originally agreed upon. Generally, in the fledgling world of the barter system, no contract was required as goods were traded at the same time but as economies developed and trade between individuals more commonly involved placing orders for goods and deposit for same, contracts became increasingly relevant. Even in primitive civilisations where commerce was less frequent, credit for a debt or surety on an agreement was often done by providing ‘hostages’ or the use of ‘debt slavery‘ as guarantees that the credit would be repaid! In the modern world, contracts are all around us and we enter into them most days, despite not really being aware of it and usually without reading the details of the fine print. So, what actually is a contract and why and when do we need them?
Encyclopedia Britannica defines a contract in basic terms as “a promise enforceable by law. The promise may be to do something or to refrain from doing something. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep the promise, the other is entitled to legal redress“. Essentially there are two basic types of contracts, verbal (or handshake agreements), and written. The dangers of a verbal agreement should be obvious as if difficulties do arise it is challenging for a court of law to determine what was originally agreed upon. Written contracts are much more secure, but surprisingly many individuals still rely on handshake agreements trusting the other party to do the right thing. A primary reason for many artists settling for verbal agreements, is that contracts can indeed be confusing and despite being able to procure free templates online (so you have at least something generic in hand), the popular misconception is that they are time consuming and expensive. All contracts however, usually only consist of the following three components:
- An offer
- An acceptance of that offer &
- A legitimate consideration which is both ‘of value’ and ‘legally binding’.
If the value or consideration to each participant is not equitable (as if often the case), one party may apply to a court, who exercising ‘Contract Law‘ may decide that the contract is indeed unjust and nullify the agreement altogether. So how specifically do contracts apply to the music industry and what types of contracts are there?
Contracts within the Music Industry
- Band Contract or Specific Project Contract – Agreements covering rights of members such as band name / project rights, distribution of income and who is responsible for what.
- Producer Contract – An agreement between an artist/band and their producer concerning remuneration and the rights and responsibilities of each party
- Recording Contract – Often referred to as a ‘record deal’, this contract can encompass elements such as production volume and production formats, merchandising, distribution rights and of course remuneration structure and duration
- Distribution / Streaming Contract – Usually governs the specific area of distribution and any exclusivity rights to the distributor, budget for the release, remuneration to the artist/record label and the specific recordings to be covered by the contract.
- Performance Contracts or Artist Agreements – Usually made by an artists manager, these contracts cover timing, fees, advertising and promotion and the general expectations of the artist to the venue and vice versa.
- Management contract – Many artists will use a manger or management company to book their gigs, organise their marketing representation and negotiate all their financial considerations. This agreement covers the managers duties, remuneration and what permissions the manager/agency has in representing the artists interests.
- Talent release contracts – Used recently when filming interviews both in the studio and in public venues, this short agreement allows the film makers to have sovereignty over the recorded content without fear of interference by the subject
- Music Sampling / Remix Contracts – Today’s music often involves the use of previously existing beats, melodies or lyrics. These contracts cover the remuneration to the original artist/composer and the scope of how the content can be used by the artist.
There are of course other contracts applicable to the music industry and indeed a contract can be drawn up to accommodate any arrangement between two parties ensuring each ones interests are protected. There will always be disputes and memory malfunctions over what was agreed between two parties, so the relevance of contract agreements will remain as important as it has always been into the future.
For more information on contracts and how they can help or hinder your progress, please visit the ‘Arts Law Centre of Australia‘ or APRA AMCOS who can also assist with copyright issues if you feel your contract has been compromised. For general information on entering into contracts and protection provisions provided by the Australian government, visit The ACCC Contracts and Agreements page. You can also read my copyright blog ‘Who Owns What’ here.
Below is an example of a contract provided by Music SA which will give you an idea of what sort of professional templates are available for artists who feel they cannot afford a personalised contract…
INSERT VENUE/EVENT NAME
This agreement is made on: 00/00/00
Insert Name of Venue
Insert Name of Organisation
C/o Insert Address (ABN: Insert ABN Number)
being the person or persons (jointly and collectively) specified in Item 1 of Schedule 1
This Agreement will bind the Venue and the Artist in relation to the presentation by the Artist of the Performance (as specified in Item 2 of Schedule 1) at the INSERT VENUE NAME (“the Venue”). The Artist Representative identified in Item 1 of Schedule 1 warrants that he or she has authority to enter into this Agreement on behalf of the Artist.
- RESPONSIBILITIES OF THE ARTIST
(a) The Artist will present the Performance during the Event on the Date/s and Time/s, and at the Venue, specified in items 2 and 3 of Schedule 1.
(b) The Artist must not do anything or enter into any contract or understanding which might be reasonably likely to cause the Artist not to be available as required under this Agreement.
(c) The Artist must at all times carry out its obligations under the Agreement to the best of its skill and ability, in a professional manner and the Artist will observe the lawful directions of the Venue made from time to time regarding working hours, rules or other matters.
(d) The Artist will be available to perform such technical checks as specified in item 7 of Schedule 1.
(e) The Artist will, at all times, be under the direction of the Venue or its representatives.
(f) The Artist will conduct the Performance in such a manner so as not to breach any law and will not cause the Venue to breach any of the conditions of the permits or consents that the Venue or the Artist have obtained.
(g) The Artist warrants that the Performance will not breach any third party intellectual property right, including copyright.
(h) The Artist agrees that the Venue may record and/or film, or arrange for the recording and/or filming of, the Performance, and that as between the Artist and the Venue, the Artist is the owner of the copyright in any such sound recording or film of the Performance, although the Venue may use any such sound recording or film of the Performance with the prior written consent of the Artist, such consent not to be unreasonably withheld.
(i) The Artist consents to any treatment of its copyright works embodied in any such sound recording or film, and any treatment of the Performance that is consistent with reasonable industry practice.
(a) In consideration of the satisfactory completion by the Artist of the Performance and its other obligations under this Agreement, the Venue will pay the Artist the Fee, as set out in Item 5 of Schedule 1.
(b) The Fee will be paid within whichever is the later of seven days after the conclusion of the show or the production of a valid tax invoice by the Artist. The invoice must be sent with the signed Agreement to the Venue prior to the Event and must contain the information set out in Schedule 2.
(c) The Fee is exclusive of goods and services tax which will be paid only on receipt of valid tax invoice.
(d) The Artist is liable for all income tax, superannuation contributions, workers’ compensation, insurance payments, holiday pay, long service leave or other benefits payable to, or in relation to, any employee of the Artist, and the Artist indemnifies the Venue against any claims in this regard.
(e) Where any loss or damage is caused by the Artist due to its intentional or negligent act the Artist will be liable to compensate the Venue and the Venue shall be entitled to set off such an amount or amounts against the Fee due to the Artist.
- ADVERTISING AND PROMOTION
(a) The Venue must publicise the show through all its regular traditional and digital media channels.
(b) The Artist grants the Venue the right to use its name and approved photographs, likenesses and biographies to advertise and promote the show. The Artist will provide the Venue with the following publicity materials:
(i) short biography, as a Microsoft word document – no PDF files;
(ii) latest press releases as a Microsoft word document – no PDF files;
(iii) high resolution colour image sent as a JPEG file ONLY (High Resolution = 300 dpi & no less than 1meg in file size); and
(iv) publicist / management contact (name, email, mobile) for any interview requests pre-Event.
(c) The Artist agrees to include details of the show on its official website in such places that events normally appear on their website. In addition, the Artist agrees to promote its appearance at the Venue through its digital and social media related entities.
- STAGE SET UP
The Artist will supply the Venue with an up to date stage plot, inputs list and instrument list.
- RESPONSIBILITIES OF THE VENUE & THE ARTIST
(a) The Venue will provide the Artist with the technical support, equipment and other matters specified in item 8 of Schedule 1. The Artist will be responsible for providing all other equipment and supplies necessary for the presentation of the Performance (including, without limitation, costumes, make-up, wigs, props and musical instruments), and for any accommodation required by the Artist during the show.
(b) The Venue is responsible for obtaining the necessary licenses from the Australasian Performing Right Association (APRA) and Phonographic Performance Company of Australia (PPCA).
(a) Either party may terminate this Agreement by giving written notice to the other, if that other party breaches any term of this agreement and, (where the breach is capable of rectification) having been given 5 days notice requiring it to rectify its breach, the other party fails to do so.
(b) The Venue may terminate the Agreement immediately, without any notice to the Artist if any member of the Artist commits any act of serious misconduct, including (without limitation):
(ii) any act of fraud or dishonesty;
(iii) any act which may injure or endanger any other person;
(iv) any act which may directly or indirectly damage the reputation of the Venue; or
(v) being drunk, intoxicated or under the influence of drugs.
(c) If the Artist is not present at the Venue at the time specified on the worksheet the Venue may in its absolute discretion terminate the Agreement.
(d) Except where the Agreement is terminated due to breach by the Venue, on termination the Artist will not be entitled to payment under the Agreement and the Artist must refund to the Venue any amount paid to it under the Agreement.
(e) In the case of Force Majeure which renders the agreement impossible to fulfil, which is not attributable to any act or failure to take preventive action by the Venue, then the Venue may cancel the performance without penalty other than loss of any deposit already paid.
(a) The Artist agrees to provide its own insurance as specified in Item 9 of Schedule 1.
(b) The Artist agrees to insure its own equipment and for all risk of damage or theft.
(c) The Artist hereby releases the Venue (and its officers and employees) from any claim arising from any loss, theft or damage suffered by the Artist (or any guest of the Artist) in relation to their vehicles, equipment or property, whether or not such loss, theft or damage arises from any negligent act or omission of the Venue (or its officers and employees).
- SPECIAL CONDITIONS
(a) The Artist will attend in accordance with the worksheet issued by the Venue prior to the performance date.
(b) Without the express consent of the Venue, the Artist(s) may not invite guests to the backstage and/or secure areas of the Venue(s).
(a) This engagement is personal and cannot be assigned, transferred or sub-contracted. If any of the Artists specified in this contract cannot reasonably fulfill the whole or any part of the Performance, the Artist must notify the Venue in writing, and obtain the approval of the Venue (acting reasonably) of any replacement.
(b) The parties acknowledge the Artist is an independent contractor and that nothing in this agreement creates any relationship of partnership or employment between the parties.
(c) This agreement may only be changed in writing signed by all parties.
(d) This agreement is governed by the law in force in insert state, Australia.
|Item 1||Artist||Insert Artist Name|
|Contact Details||Mobile: Email:
|Item 2||Description of Performance/s||A selection of songs to be performed by Artist at the Venue
|Venue||INSERT VENUE NAME|
|Time of Performance/s||As advised by Venue
|Date of Performance/s||Insert Performance Date|
INSERT VENUE ADDRESS
|Item 4||Venue Manager||Insert Venue Mangers Details|
|Item 5||Artist(s) Fee||Insert deal details or fee $???.?? plus GST if applicable
|Item 6||Performance Duration||Insert performance times|
|Item 7||Preparation Time||Call time – A minimum of 30 minutes before your performance start time.
Line checks will be carried out when time allows we thank you for your cooperation in this matter.
|Item 8||Technical Support & Equipment Requirements||The Venue to provide: insert in house production supplied
Insert backline details
Any specialist equipment is the Artists responsibility.
|Item 9||Insurance:||Artist to provide:
a) public liability insurance with a reputable on-shore insurer with minimum insurance limits of $10,000,000 per occurrence, including coverage endorsements for personal injury and property damage
b) workers compensation insurance policies in respect of its employees and contractors as required by law.
The invoice must contain:
1) the words ‘tax invoice’, if applicable;
2) business, trading or individual name;
4) ABN, statement by supplier form or a letter of representation by an Australian Tax Agent;
5) banking details including account name, BSB and account number;
6) the amount of any GST payable, if applicable; and
7) be made out to:
Insert Venue Details
Insert Venue Address
Insert ABN Number
EXECUTED as an agreement
Signed for and behalf of the Artist(s) by their authorised representative:
Signature: ……………………………… Witness Signature……………………………………
Name (PRINT): ………………………. Name (PRINT): ………………………………………
Date: …………………………………… Date: ……………………………………………………………
Signed for and behalf of Insert Venue Name by its duly appointed representative:
Signature: …………………………………………………….. Date: ……………………
Witness: …………………………………………………….. Date: ……………………
Contract definition courtesy of Enclopedia.com from https://www.britannica.com/topic/contract-law retrieved on 06/05/2018
Ancient Egyptian Contract photo courtesy of the University of Copenhagen retrieved from http://news.ku.dk/all_news/2012/2012.12/ancient_egyptians_sold_themselves_into_temple_slavery/ on 07/05/2018