Elements of the AFM Performance Agreement,
aka How to Read Your Performance Contract
by Randi Reed
You’ve landed your first decent gig, and your agent hands over the show’s
contract for you to countersign. But why are their names and addresses on
the contract you don’t recognize, and what have you just agreed to? Using a
headlining artist’s actual AFM (American Federation of Musicians) performance
agreement from a club performance as an example, we explain typical contract
clauses for you. Mouse over the
image and
match the pop up text boxes to the article below for an explanation.
The fee and terms of the deal represent what this particular artist got at a
particular venue, at a particular point in the artist’s career, and may not
reflect current pricing and costs in your area. Each artist’s situation,
fee, requirements, and deal structure for each show are unique, and fees and
costs go out of date quickly. We include them here for demonstration
purposes only. This article is not intended as legal advice, nor to take the
place of a qualified entertainment attorney with experience in the area of
live music.
Fig. 1. AFM Logo and Address of the Main AFM
office.
Fig. 2. Name and/or Logo of Artist’s talent
agency.
Fig. 3. Name, Title, and License # of the
agent who booked the show: If you’re with a large talent agency, you may
see an agent’s name you don’t recognize. Don’t panic; it’s common and
usually just means your show is outside the geographical territory of your
responsible agent, so it’s being handled by one of his or her colleagues at
your talent agency. The booking agent is the point person at the agency for
the show and is in close communication with your responsible agent. If you
have questions, your manager should call your responsible agent, who will
know what’s up.
Fig. 4. Address of Artist’s talent agency.
Fig. 5.
Date of Contract and statement of
who’s who: This is the date the contract was issued—not the show date.
The date should be phrased in this form: “on this 29th day of August, 2006.”
Some contracts read “Musician,” some read “Artist.” The promoter (talent
buyer) is always referred to as “Purchaser.”
Fig.6. NAME AND ADDRESS OF PLACE OF
ENGAGEMENT: The address of the venue where the show will actually take
place… not the business address of the Purchaser.
Fig.7. NAME OF BAND OR GROUP: The stage
name of your act, as it should appear in advertisements about the
performance, i.e. THE ROLLING STONES or JOE SCHMOE AND THE UNKNOWNS.
Fig.8. NUMBER OF MUSICIANS: The number
of people in your own band. (It does not include any local choirs, string
sections, etc. the purchaser may be hiring locally to appear with you.)
Fig.9. DATE(S) AND TIME OF ENGAGEMENT:
The show date and time. Note that the length of your part of the show goes
here too.
- The show date should be phrased in this form:
08/29/06.
- If the Purchaser is doing multiple dates with you at
the same venue and the showtime and contract terms are identical for
every show, you can phrase it like this: 08/29/06 AND 08/30/06. For
three dates it should be phrased like this: 08/29/06 AND 08/30/06 AND
08/31/06. Use the word AND instead of dashes, which can lead to
confusion and are difficult to read at a glance. (An example of what not
to do would be: 08/29/06-08/31/06)
- When stating the time, always put “approx” (for
approximately). This covers you if someone’s watch is set differently
than yours or if the show starts a little late due to technical problems
or soundcheck running late.
- Approx. (for approximately) should also be used in
the set length to cover you if someone’s watch is a bit off. Otherwise,
some promoter, somewhere, may try to count the time to the last second
and try to get a discount. It really does happen.
- For a major headlining artist who does an encore on a
regular basis, the encore is listed separately to let staffers know
you’re likely to do one. An example of the wording would be: “approx. 90
minutes plus encore.” This wording helps cover you if it’s a dead crowd
or there’s a technical problem and you opt not to do it.
Fig.10. TYPE OF
ENGAGEMENT: If you’re a band or singer, it will nearly always say “Stage
show” because it includes every aspect of what happens on your stage.
- Note that in addition to the type of engagement, it
also states “One performance.” Very important.
Fig.11.
COMPENSATION
AGREED UPON: Note that the exact deal is spelled out, along with deposit
amounts and due dates, form of payment, and to whom.
- If you are an AFM member performing outside of the
U.S., know which currency is worth more: U.S. currency or the currency
of the country you'll be performing in...and get paid in it! Be sure the
contract states which currency you'll be paid in (“U.S. Currency” in this
particular contract). There have been cases of unscrupulous promoters who
tried to pay the artist in a currency with a lower monetary value. (If we hadn’t witnessed it,
we wouldn’t believe it either. Save yourself the headache and be
specific.)
- Where it says “payable to__
Fig.12. ____________as agents”, the name of your talent
agency goes in the blank. If you don’t have an agent and the check goes
directly to the band’s corporation, state the name as it is on the
corporation’s bank account and delete “as agents.”
ADDITIONAL CLAUSES:
Fig.13. BILLING: Your agent should
always discuss your position in the lineup, and be sure your performance
position is written into the contract. This helps avoid the surprise of
arriving at a show to suddenly find yourself opening a show with five other
artists when you thought you were headlining and closing the show.
In this example, “100% Top Headline Billing and Will Close Show” means this
artist’s name appears first in all advertising pertaining to the show, and
that as the Headliner, the artist will perform last, closing out the
evening’s entertainment.
Other billing possibilities include: Opening Act (artist opens the show and
rarely is mentioned in advertising, but your agent should always try for a
mention if the show is booked far enough to make the ad deadlines), 1/3
billing (artist is on the bill with two other artists, is mentioned third in
advertising, and performs first) or Co-headline (artist shares headline
billing with another artist, and the two take turns closing the show on
alternate nights. This situation is found more commonly in series of dates
or whole tours).
Fig.14. SUPPORT: If you’re the headliner
and there’s a local opening act, the name of the act and/or how much the
Purchaser is budgeting for their fee, as well as their set length goes here.
Because a local opening act is often hired last minute, this space often
says “To Be Advised.”
Fig.15. CAPACITY: Venue capacity of
saleable tickets for this show. This is the number from which the Gross
Potential is calculated, so it’s important that the capacity is accurate.
Fig.16. SOUND AND LIGHTS: If the
Purchaser is to provide and pay for Sound and Lights, it’s stated here. If
this is the case, be sure the words “to Artist’s specifications” are
included in this clause. (Otherwise, God knows what you may end up with.)
Also, be prepared to provide a stage plot and list of required sound and
lighting equipment.
Fig.17. TICKETS: The breakdown of the
number of saleable tickets at each ticket price.
Fig.18.
GROSS POTENTIAL: Number of
saleable tickets at each price x the ticket price = Gross Potential.
(Sometimes the anticipated Net is here, too, with a slash in between the two
Figures.)
Fig.19.-22. NAMES OF ALL MUSICIANS/LOCAL
UNION NO./ SOCIAL SECURITY NO./CORPORATE TAX ID #: Used for tax and
social security purposes, as well as union dues and benefits, so check to
see the information is correct. The real name and Social Security # of each
member of your band, the chapter numbers of their local AFM, and the
Corporate Tax ID # of your band’s corporation are here, so exercise care
when handling contracts and disposing of old ones.
- Names of all musicians should be the full legal name
of each band member, as it appears on the band member’s social security
card. Or it can be the person’s full legal name with an aka to indicate
their stage name, as in this example: Joseph A. Schmoe, aka “Joey S.”
Fig.23a
Signature of Purchaser:
This is where the promoter (talent buyer) signs. Important!!! The
Purchaser should always sign first (i.e.,“execute the contract”)!!!
He or she may make changes—especially to the rider-- and you don’t want to
sign your OK before you see them.) Then the Musician signs (aka
“countersigns”) the contract, thus making the contract “fully executed.”
Fig. 23b.
Purchaser’s name, name of his company and company address where contracts
should be sent is typed below the signature line.
Fig.24a. Signature of Signatory Musician/ Home Local
Union No.: The
band member (usually the leader) responsible for signing legal documents on
behalf of the band signs here.
Fig. 24b.
Signatory name, business address where contracts should be sent, (usually
the management company), and chapter number of his /her local AFM are typed
below the signature line.
-
In some cases where
the artist is on tour or otherwise not available, the artist’s manager
signs. In that case, his/her name, business address, and the clause “as
agent for (Band name)” are typed below the signature line.
- Artist (or
manager) should sign in blue ink to make it easier to tell original
contracts from copies and should require
“original contracts only”
as part of their regular artist requirements. Today’s scanner and
editing quality makes it far too easy to edit contracts.
Fig.25. Talent agency name
goes in the blank space here.
Back of Page 1: Additional Terms and Conditions (ignore the black
paragraph numbers)
Fig.26. Prevents your show from being
recorded, broadcast, etc. without yours and the Union’s permission, because
Union Scale rates are different for that.
Fig.27. In laymen’s terms, this
essentially means that, with the exception of the clause in Figure 26, the
AFM isn’t in on the deal, so it’s between the Musician and Purchaser.
Fig.28.
Grants a union representative
access to the venue in the event of a problem.
Fig.29.
States that if Purchaser
breaches the contract or cancels the show, Musician has the right to keep
the deposit and to pursue other remedies allowed by law. (Specific dollar
amounts for cancellation penalties are sometimes spelled out in the artist’s
rider as well.)
Fig.30. Gives artist creative control of
his own show and states artist isn’t liable if he has to cancel the show for
the reasons listed in this clause.
Fig.31. States that the person who signs
as the Purchaser has the authority to sign as such, and is legally obligated
to uphold the Purchaser’s end of the deal.
Fig.32. In a nutshell, this prevents the
Purchaser from discounting or giving away tickets without the artist’s
written permission and gives the artist/artist’s reps the right be present
in the box office at all times and at Settlement, as well as the right to
double-check all the math before and after the show. The specific terms and
wording of this clause are very important.
Fig.33. Essentially states that if,
before show day, the Purchaser breaches a contract for another artist’s show
(or hasn’t paid someone involved with another artist’s show), or has bad
credit or other financial problems, Musician has the right to cancel without
penalty. It also says that if Purchaser breaches this contract, it’s the
musician’s choice whether to perform or cancel the show, and that Musician
can sue either way.
Fig.34. Gives the artist the right to
sell his merchandise and recordings and keep all the cash from it.
Merchandise splits are very common, though, particularly at clubs.
Fig.35.
States that this is the only
valid version of the contract. Important: This means if there were any
verbal agreements or additions, they need to be written in the contract or
be added via an addendum signed by both parties. Otherwise, according to
this clause, they don’t exist.
Fig.36.
The name of your talent goes
here. This clause means the agent isn’t responsible for anything the artist
does.
Fig.37. Here the Purchaser chooses who
will arbitrate in the event of a contract dispute or breach of contract that
goes into arbitration: the American Arbitration Association (option A), or
the AFM Local Union (option B). If no box is checked, it’s option “B”, the
Local Union.
Fig.38. A very important clause where
accuracy is key, because it says who completes your federal and state tax
forms pertaining to that show. This clause is where a lot of artists run
into tax problems; if not done correctly, suddenly the artist finds they owe
a lot of money in taxes because taxes were never withheld for each show. (It
can also affect your Social Security withholding.)
- Find out if your talent agency completes the
withholding tax forms for the show. Your responsible agent will refer
you to the agency’s accounting department. (If you have a good agency,
they do the forms and withhold the taxes for you.)
- If so, the name of your talent agency goes here.
Fig.39.
- If you don’t have an agent and the check goes
directly to the band’s corporation, check with your accountant or
manager: What you will most likely do is request that each show’s
Purchaser fill out the forms.
To request that the Purchaser fill out the tax forms:
- Draw a line through the words “If payments hereunder
are to be made in the name of a payee other than ,” as in the example
below and have the person who signs the contract on behalf of the band
initial next to the deleted clause.
If payments hereunder are to be made in the name of a payee
other than ,
- As in the example below, highlight “Purchaser will
prepare all applicable federal and state tax information returns
including Federal Form 1099-MISC, Federal Form W-2, or Federal Form
1042S.” Have the band’s signatory initial there, too:
Purchaser will prepare all
applicable federal and state tax information returns including Federal
Form 1099-MISC, Federal Form W-2, or Federal Form 1042S.
- Regardless of who fills out the forms, you’re the one
financially responsible to the IRS in the event of a problem. So
regardless of who completes the forms, make sure you and/or your
accountant get copies of the completed tax forms for each gig, and
follow up to make sure the taxes were actually withheld.
How To and
Quick Tips |
