With a booking contract (also called an agency contract), the artist entrusts an artist or concert agency (also called a “booker”) with the arrangement of performances. Here, too, you should choose your contractual partner according to whether it fits in terms of artistic orientation, according to the motto: like for like. Newcomers usually have a hard time finding a booking agency at first. But it can also be that the agent is totally enthusiastic about the band and throws himself into the work full of energy. At the beginning, however, he too will have to pull out all the stops to be able to book concerts.
Because as a newcomer, you probably only have a local fan base at first. If the booker wants to book a young band from Frankfurt into a club in Berlin, for example, 99% of them will tell him: “Nobody knows them here, who should come to the concert? Consequently, persuasion is the order of the day, or you have to swim along in the wake of a better-known band as support. However, it is not unusual for a band to have to buy the status of a support band, so that the tour becomes a zero-sum game or even a minus business in financial terms.
1.) Subject matter of the booking contract
In the field of music, the classic booking contract covers the arrangement, planning and coordination of gigs. All other areas such as advertising, sponsoring etc. are not included. If the booking company has proven expertise in these areas, they can also be included. The usual formulation is that the agency will “endeavour” to arrange concerts for the artist. The agency will not want to enter into a concrete commitment, as the success of the efforts is often unpredictable.
2.) Contractual area
When it comes to booking contracts, it makes sense to limit the contract area geographically. Many agencies are only really strong in German-speaking countries. Everything beyond that is then handled by partner agencies. Here, however, the artist should retain the freedom to decide whether he really wants to be represented by partner agency X or Y. If, on the other hand, he has chosen his German booking company, he should be able to choose between the two. If, on the other hand, he has had the worldwide rights transferred to his German booking company, he will hardly be able to influence this decision. With large agencies, the artist usually has no choice and must transfer the worldwide rights.
Another alternative is to make the contract territory dependent on whether the agency actually arranges gigs for the artist. One could therefore include a clause in the booking contract according to which country X is also considered to be the contractual territory if it can be proven that the agency has arranged gigs for the artist.
3.) Exclusivity
The agency will usually want to make the booking in the contract area exclusive, as otherwise there can very quickly be a clash of dates and interests. But of course this also has monetary aspects.
4.) Cooperation
It is customary and absolutely necessary for the cooperation that the artist informs the booker in good time (usually two months in advance) about holidays, absences from the venue, being prevented from performing, etc. The booking contract must be signed by the artist and the booker. Many concerts or especially festivals are booked with a longer lead time, so that the summer period can even be completely planned in the winter. Sometimes there are also contracts that provide for 24-hour availability by mobile phone (rather the exception). However, each artist should then consider for himself whether he wants such a cooperation. Such availability will rarely be necessary.
The artist should at least receive a copy of each performance contract (even better: the original), which should also be recorded in the booking contract. This gives him a better overview and control. Clauses should be avoided according to which the agent will only inform the artist on request. The booker should always keep the artist informed without special request.
5.) Power of attorney
The booker needs at least a negotiating power of attorney from the artist in order to work. This means that he can first negotiate performance contracts on behalf of the artist. Most contracts also include a power of attorney to conclude the contract. This means that the booker can then also conclude the contracts in the artist’s name in a binding manner; there should therefore be a certain relationship of trust. It is common to include a power of collection so that the fees flow directly into the agent’s account. However, many agencies also leave the collection to the bands and only take care of collecting their own booking commission.
It is important that the powers of attorney in the booking contract are limited to the performance area. Powers going beyond this are unusual for an agency/booking contract and should therefore – if at all – be regulated in a management contract.
6.) Remuneration
The booker receives 15% to 20% of the artist’s income from performances/concerts. This should be a so-called “on-top agency remuneration”, i.e. in addition to the artist’s fee. Otherwise the disappointment is great if the artist first assumes that he is entitled to the full fee and later has to pay 20% of it to the agency. The basis for commission should be the net artist fee.
Some booking contracts stipulate that the fee is owed irrespective of the booker’s brokerage activities. This means that the artist still has to pay a share to the booker for a concert appearance that he or she has procured himself or herself, for example.
The idea is to avoid disputes about who procured which concert in advance. In practice, it is often the case that the booker himself has work to do with the organisation of a performance initiated by the artist, for which he then legitimately wants to be paid. Alternatively, it can be agreed that a reduced commission is owed for the gigs not arranged by the agency (e.g. only 10% instead of the usual 15%).
7.) Settlement
In order to avoid conflicts, a binding payment date should be agreed in the booking contract in any case. This means that the booker must forward the band’s fee to the band within XX days (usually 14 days after receipt of payment), if he has taken over the collection. The same applies vice versa if the band receives payment of the fee and booking commission.
A right to inspect the contractual partner’s documents is also recommended together with the right to audit. However, in the event that the artist always receives the original contract and also takes over the collection of the fee himself, it is not obligatory.
8.) Duration
In booking contracts, terms of one to two years with an option to extend are common. This extension option can be made dependent on the fact that a certain minimum of concert revenue has been brokered.
Often there is a provision that termination is excluded according to § 627 BGB. According to this provision, it would be possible to terminate a contract without notice, even if a fixed term had been agreed, which the agency understandably wants to avoid.
However, the right of extraordinary termination according to § 626 BGB remains. According to this, the artist can terminate the contract if the contractual partner has blatantly violated his duties and a continuation of the contractual relationship until the end of the term is not reasonable (e.g. in the case of repeated and deliberate accounting fraud).
9.) Liability / indemnity clause
The booker naturally wants to minimise his risk and so he will usually demand in the booking contract that the artist will indemnify him against third party claims. To be fair, this should be limited to such culpable breaches of duty by the artist that result from the agency contract or from contracts concluded on the basis of the agency contract.
However, the booker’s liability should be agreed in the event that he was grossly negligent in not knowing or should have known of the organiser’s inability or unwillingness to pay.
Some agency contracts stipulate that the artist owes the agent the commission even if the performance does not take place. Here, too, liability should be limited to a culpable breach of duty by the artist. If, for example, the artist is unable to perform due to illness, the booker’s claim to commission lapses. However, the term illness is to be interpreted narrowly here, so that the cause must not be self-inflicted. Consequently, incapacity to work due to excessive alcohol or drug consumption is not included.
10.) Problems of job placement according to §§ 296 ff. SGB III
If the artist is placed in an employment relationship, special provisions apply according to §§ 296 ff. SGB III. An employment relationship exists, for example, if someone is obliged to perform services for another person in accordance with instructions and in return for remuneration. This will not be the case for a single concert, but it is more likely for longer-term engagements. The consequence is that the agent’s commission is limited to 14% of the gross remuneration on the basis of the Vermittlungs- Vergütungsverordnung (VVO) and to 18% in the case of employment relationships of no more than seven days. If the agent has received more in commission, the artist may be able to reclaim this under certain circumstances.
According to § 297 No. 4 SGB III, agreements are null and void according to which the artist is to use an intermediary exclusively. In the case of management contracts, these legal provisions can also become a problem if arrangements have been made for the artist to be placed in gigs.
If you have questions about the booking contract or other issues, I will be happy to advise you. It is not necessary for you to come to my office for this. You can send me your concerns in advance by e-mail (also with attachments). I will then make you a non-binding offer for a mandate and, if necessary, contact you by telephone. A mandate only comes into effect when the mandate is issued in writing.
