1.) Introduction
Especially in the live area, many performances are only agreed upon verbally and no written concert contract is concluded; there is nothing wrong with this at first. However, if a dispute should arise later, e.g. about the amount of the fee, the artist has a problem of proof. An e-mail with the most important data is very helpful and can also serve as evidence in the event of a dispute. In general, the following points are relevant for concert contracts.
2.) Contracting parties
The contracting parties must be precisely identified in the concert contract (i.e. with their addresses) and their representation (“XY GmbH represented by the managing director AB”) must be disclosed. Possible claims can thus be asserted more easily if disputes should arise.
3.) Event details
Here the concert contract specifies, among other things:
- Performance venue
- Date of the event
- Time for the so-called “get in” (this means when the band can enter the venue and start setting up the instruments / backline)
- Time and duration for the sound check
- Start and duration of the event – “net playing time”.
The term “net playing time” should not be taken too literally. So no one sits there and measures the concert length with a stopwatch. Short interruptions between songs are usual and are therefore not deducted from the playing time. However, if there are longer interruptions caused by the band, the organiser can insist that the net playing time be kept.
4.) Performance
The artist should agree a clause in the concert contract stating that he is not bound by instructions in the manner of his performance as well as in the programme design and that his style is known to the organiser. This means that the organiser cannot influence the content of the concert.
5.) Remuneration for the concert contract
It is generally advantageous for the artist if the payment of the fee is agreed independently of the artistic success of his performance.
There are various models here:
“door deal” or also “playing against the door”:
The box office takings are divided between the band and the promoter, usually in a ratio of 70% for the band and 30% for the promoter.
Fixed fee:
Newcomers will find it rather difficult to get a fixed fee if the promoter is taking a financial risk with the concert. Events such as company presentations etc., where the organiser is not dependent on ticket sales, are a different matter.
Combination of fixed fee and box office receipts
Whether an advance is agreed upon and which payment modalities are determined (payment in cash / transfer after the event) depends on the industry customs and the negotiating power of the contracting parties. In the classical music sector, for example, it is customary to pay on account only after the event. In all other music genres, the artist will want to receive his fee in cash at the end of the event at the latest. Depending on the event, established bands may successfully agree to pay an advance before the start of the concert or even to transfer the entire fee in advance. It is also a matter of negotiation whether the organiser will bear further costs of the artist, such as travel or accommodation expenses.
6.) Technical rider or technical or stage instructions
The technical rider contains the technical details regarding monitor boxes, instruments, microphones, music stands etc. It should definitely be part of the concert contract. It should definitely be part of the concert contract in order to avoid unpleasant surprises shortly before the event on both sides. It is also important that the technical rider is always up to date.
7.) Catering
A catering list will exist, especially for well-known artists. Sometimes the concert contract even states that the artist has a right to refuse to perform if the catering list is not adhered to by the organiser!
8.) Advertising
The advertising of a concert is often the cause of disputes if the concert was poorly attended and an audience-based fee was agreed. Therefore, it should be clearly stated in the concert contract whether the organiser or the artist is responsible for a specific advertising measure. This can go so far that the organiser (or the band) has to put up an exact number of posters and must also provide proof of this.
9.) Audiovisual recordings
If the artist intends to have the concert filmed, the organiser must give his consent to this in accordance with §§ 81, 77 UrhG. The organiser can claim damages under § 97 UrhG if audiovisual recordings are distributed without his consent.
10.) GEMA and KSK
The concert contract should also stipulate who is to pay the fees for GEMA and KSK. Some contracts even have a separate field where the organiser must enter his KSK registration number. In principle, the organiser should bear the corresponding fees and not pass them on to the artist. In the case of KSK contributions, such an agreement would even be null and void.
11.) Prohibition of competition
Some concert contracts require the artist not to perform within a radius of 150 km of the venue, e.g. within two months before and after the event. This non-competition clause is often agreed in contracts with better-known artists and is intended to ensure that there is no loss of visitors as a result. It might be possible to agree on exceptions for festival performances.
12.) Compensation / Liability
It is advisable to include a clause in the concert contract according to which the artist’s obligation to perform and the organiser’s obligation to pay compensation cease in the event of the artist’s illness. The artist’s right to withdraw from the contract can be agreed in the event that the organiser does not comply with the requirements of the Tech-Rider the time agreed for the set-up / sound check is not adhered to for reasons for which the organiser is responsible the safety of the band or the band equipment cannot be guaranteed.
Some contracts also provide for the organiser’s liability for damages if the concert is cancelled for reasons for which he is responsible. The amount of compensation is then based on the artist’s fee, whereby the amounts are often staggered:
- 100% for cancellations up to 10 days before the start of the event
- 70% for cancellations up to 20 days before the start of the event
- 50% for cancellations up to 30 days before the start of the event.
In practice, it happens time and again that advance ticket sales go badly and the organiser cancels the concert for this reason. Since the advance sale falls within the organiser’s sphere of risk, the artist retains his claim to payment of the agreed fee (however, without VAT, since no transaction triggering VAT has taken place). However, if the cancellation is made so early that the artist would still have had time to obtain a replacement engagement, he/she must allow the corresponding omission to be offset against his/her claim (unless fixed cancellation fees have been agreed as described above). Therefore, it is recommended for evidentiary purposes to document corresponding requests.
If the performance is not cancelled, but there are considerable doubts as to whether it will take place, the artist is in any case recommended to offer his performance in writing for evidentiary purposes. At the same time, the organiser should be asked to comment within a period of time whether the concert will take place or not. This should be combined with a warning that if the deadline expires fruitlessly, it is assumed that the concert will be cancelled and that the artist is no longer obliged to travel to the venue. One should also insist on the payment of the fee.
If the artist gets caught in a traffic jam and arrives so late that the event can no longer take place, this, on the other hand, triggers claims for damages by the organiser. This is because it is the responsibility of the artist to organise the journey so that he or she arrives at the venue on time.Possible traffic jams must also be taken into account. The amount of damages is based on wasted expenses and the organiser’s lost profit.
There are also clauses according to which the organiser is liable for the safety of the band / band crew as well as for the integrity of the band’s equipment at the venue. As a band, you should try to include such a provision in the contract.
If you have any questions about the concert 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 request 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.
