Working With Agents
If an agent likes you, they may try to entice you into an exclusive arrangement. This can be a match made in heaven for the parties. A manager can off load the tour scheduling to the agent and let the agent bring him the tour dates as a complete package. If the agent is working the band in venues with good exposure, it will only help grow the fan base. On the other hand many bands have been worn down on the road to nowhere by playing venues and clubs that don’t respond to that particular genre of music or band. A good agent knows both the venue and the act intimately and trusts that both parties will deliver the goods. A band’s career can go down the drain “touring” little towns playing motel lounges and dancehalls demanding cover music. A few years of this can make a day job look positively cool.
A good booking agent can be a major asset to a performing artist’s career. A good agent is always looking for new talent to add to the stable. It seems there are as many kinds of booking agents as there are musical genres. Many of the smaller agencies will focus on one musical or entertainment genre while the larger corporate agencies such as William Morris can represent a wide range of clientele from actors and musicians to authors and sports stars. The agent’s job is to get as much work as possible at the best (largest) possible price. The agent is generally looking for three things in a new act: talent, reliability and the prompt payment of their commissions. Regardless of how hot your band is, an agent will not book you for long if you are late to gigs, late on paying them or act in other unprofessional manners.
When does an agent enter the picture? A good agent has a long list of contacts with venues, concert promoters, corporate buyers and such. It is hard for a new agency to get off the ground as this network can take years to build. A new agent might be going to clubs to find that many already have an exclusive deal with a particular entertainment agency and aren’t looking for new sources of talent.
Under the assumption that you got lucky and your agent is actually working to expand your career, let’s take a look at how an exclusive agency arrangement develops.
The Exclusive Agent Agreement
Agents sometimes work with bands on an exclusive basis as well as venues. A new band might want to approach a new agent with a “try before you buy” approach. The agent and band can enter into a 90-day exclusive agreement and see how it works out. The band would continue to play and book any venues where they have an existing relationship, but they would pay commissions on new gigs brought to the table. If the band doesn’t get any more bookings with an agent than they were getting without one, after ninety days, they would be best to just walk away. If the agent found that the venues didn’t like the act for whatever reason or the band was paying late on commissions, the agent can also walk away. The less acrimonious the split is the better. It is never a good thing to burn any bridges you don’t have to in this business. Just because a business relationship didn’t work out now doesn’t mean it won’t at some time in the future.
The agent’s goal, if the band is promising, is to replace the existing gigs that the band may have brought to the table with better ones. The better the agent performs, the more likely the band can be enticed into a longer exclusive arrangement. Exclusivity isn’t a necessity but if an agent hears that you are additionally using a competitor, it takes your band down the roster a peg or two. Agents will send the best work to their best bands and the ones that stay close to home.
Exclusive Agent – Artist Agreement
This agreement is for the services of music and/or entertainment described below between the undersigned Musician(s) (includes accompanying musicians and/or entertainers as described below, hereinafter referred to as “Musician”) and the Agent who is to provide booking and management services (hereinafter referred to as “agent”).
I. Term of Agreement
This agreement begins on the _____ day of __________, 20_____, and the term shall be valid through the ___ day of ____________, 20__, and shall be considered renewed at the end of the period herein unless Artist receives a written notice with the intent to terminate this contract. Any questions relating to this agreement shall be interpreted in accordance with the laws of the State of ______________________.
II. Scope of Agreement
Musician(s) hereby employs Agent and Agent hereby accepts employment as Musician’s exclusive booking agent, manager and representative throughout the world for services, appearances and endeavors. “A.F.M.” as used herein refers to the American Federation of Musicians of the United States of America and Canada.
III. Duties of Agent
a) Agent agrees to use reasonable efforts performing the following duties: assist Musician in obtaining and negotiating engagements for the Musician’s professional career; promote and publicize Musician’s name and talents; business correspondence on Musician’s behalf; cooperate with duly constituted and authorized representatives of Musician in the performance of such duties.
b) Agent will maintain office, staff and facilities reasonably adequate to perform these services. Musician is familiar with Agent’s present office, staff and facilities and acknowledges these as reasonably adequate.
c) Agent shall maintain such records as may be required by the State of ________________ pursuant to any laws governing this industry or agreement.
IV. Rights of Agent
a) Agent may render similar services to others and may engage in other business and ventures.
b) Musician will promptly refer to Agent all communications, written or oral, received by or on behalf of Musician.
c) Musician will not engage any other person, firm or corporation to perform Agent’s services (except a personal manager) or perform or appear professionally or offer to do so, except through Agent.
d) Agent may publicize the fact that he or she is the exclusive booking agent and representative for Musician.
e) Agent shall have the right to use or to permit others to use Musician’s name and likeness for advertising or publicity relating to Musician’s services and appearances (without cost or expense to Musician, unless Musician agrees in writing).
f) In the event of Musician’s breach of this Agreement, Agent’s sole right and remedy shall be the receipt of the commissions specified in this Agreement from Musician, but only if Musician receives money or other consideration on which commissions are payable [except as provided in paragraph 5 (c)].
V. Compensation of Agent
a) Musician agrees to pay the following commissions on the gross funds directly or indirectly received by Musician for each engagement:
i) Twenty (20%) percent of the gross funds received for a single night or two consecutive night engagement at the same place.
ii) Fifteen (15%) percent of all gross funds received for three or more consecutive night engagements at the same place.
b) Commissions shall be due and payable to Agent by check or money order. Funds must be payable to _________________________________
for the full amount due within seventy-two (72) hours after completion of engagement. In the event Musician fails to pay any commissions when due, Agent may, at his or her discretion, refuse to secure further engagements for Musician until said commissions are paid. The refusal to secure further engagements for Musician because of failure to pay shall not constitute a breach on the part of Agent to secure the minimum number of engagements provided hereunder. The minimum number of engagements guaranteed pursuant to paragraph 6(b) shall be reduced by either:
i) One (1) week for six night engagements, or
ii) Two (2) engagements for single night engagements for each week the commission remains due and payable.
c) No commissions shall be payable on any engagement if Musician is not paid for such engagement, and only if non-payment is not due to Musician’s misconduct. If non-payment for all or part of engagement is the fault of Musician, the full commission for the contract price will be paid to Agent. This shall not preclude Agent from seeking and recovering damages to compensate for actual expenses incurred as the direct result of the cancellation of an engagement when such cancellation was the result of the intentional misconduct of the Musician.
d) As used in this paragraph and elsewhere in this Agreement, the term “gross earnings” shall mean the gross funds received by Musician for each engagement.
VI. Duration and Termination of Agreement
a) The term of this Agreement shall be as stated in the opening heading, subject to termination by either party upon the default of the other of any provision in this Agreement.
b) In addition to termination pursuant to other provisions of this Agreement, this Agreement may be terminated by either party, by notice as provided below, if Musician:
i) does not obtain employment for at least ______ cumulative weeks of up to six night engagements to be performed during each year during the term hereof; or
ii) does not obtain employment for at least _______ single night engagements to be performed during each year of the term hereof.
c) Notice of such termination because of default of either party shall be given by mail addressed to the addressee at his last known address. At such time, the Musician will play out those engagements specified and contracted by Agent.
d) This contract remains in effect even if the musician joins or becomes a member of A.F.M. or other musician union.
VII. No Other Agreements
This is the only Agreement between the parties involved. There is no other agreement, arrangement, or participation between the parties which are not created by this Agreement.
VIII. Submission and Determination of Disputes
Governing Law: This Agreement shall be governed by the laws and in the courts of the State of _____________ and by the laws of the United States, excluding their conflicts of law principles. Any dispute or legal proceeding regarding the Agreement shall take place in the county of _____________, in the State of _________________.
IX. No Assignment of This Agreement
This Agreement shall be personal to the parties and not transferable without the prior written consent of the Musician and Agent. The obligations imposed by this Agreement shall be binding. Musician may terminate this Agreement in writing at any time within ninety (90) days after the transfer of a controlling interest in the Agent.
X. Damages
In view of the fact that musician is able to secure employment at establishments throughout the United States and the world and is further able to secure agents throughout the same area, it is difficult and costly for Agent to ascertain the names of agents subsequently engaged by Musician or to ascertain the number of or value of subsequent engagements undertaken by Musician. The parties agree that in the event of Musician’s breach of this Agreement either by securing bookings from another agent or person or by refusing bookings secured by Agent, then Agent’s damages shall be determined as follows:
a) For each remaining month of this Agreement after Musician’s breach, Agent shall be entitled to receive as damages an amount equal to the average monthly commissions to which Agent was entitled prior to Musician’s breach. The average commission shall be based on actual engagements by Musician as well as bookings refused by Musician.
b) Agent shall be further entitled to receive his or her costs, disbursements and attorney’s fees as provided by law in any suit to collect damages provided herein.
XI. AFM Membership
By executing this Agreement, Musician does not obligate himself in any way to become a member of the AFM, notwithstanding any agreement Agent may have with AFM.
XII. Terms
All terms expressed in the singular shall also mean the plural and all terms implying gender shall mean either gender.
Dated: _______________________
_____________________________ ________________________________
For Agent: For Performer:
Let’s take a brief look at the main components of this exclusive agency agreement. There are some points that may warrant drilling down a bit.
The preamble is self explanatory so let’s jump down the page a bit to Section IV and pick it apart.
IV. Rights of Agent
a) Agent may render similar services to others and may engage in other business and ventures.
Agents almost always represent more than one artist and this is an industry standard. Asking an agent to book you exclusively is wasted breath.
b) Musician will promptly refer to Agent all communications, written or oral, received by or on behalf of Musician.
The agent will need the space to do the job and this is an important clause as artists that have been booking themselves are reluctant to shell out a percentage of a gig when the venue approaches the artist. I have seen a number of artist-agent relationships go down the tube when the artist tries to “moonlight” behind the agent’s back. When signed exclusively to an agent, let the agent do their job and refer all inquiries to them.
a) Musician will not engage any other person, firm or corporation to perform Agent’s services (except a personal manager) or perform or appear professionally or offer to do so, except through Agent.
This underlines clause (b) and gives you an idea of how important agents see this.
b) Agent may publicize the fact that he or she is the exclusive booking agent and representative for Musician.
The agent will make the call on what promotional material to use. It is a good idea to feed the agent only the “greatest hits” of the band’s promotional arsenal. It is likely that if you have progressed to the point where an agent is willing to take a shot on you, your promo probably already looks pretty good.
c) Agent shall have the right to use or to permit others to use Musician’s name and likeness for advertising or publicity relating to Musician’s services and appearances (without cost or expense to Musician, unless Musician agrees in writing).
This is specifying that the promotional materials will be produced and paid for by the agent. The agent will certainly brand your photos, biography and repertoire with their logo, name, address and phone number.
d) In the event of Musician’s breach of this Agreement, Agent’s sole right and remedy shall be the receipt of the commissions specified in this Agreement from Musician, but only if Musician receives money or other consideration on which commissions are payable [except as provided in paragraph 5(c)].
This is a clause that many agents might delete or modify as it limits their recourse should the band violate the terms of the exclusive agreement or one of the individual concert contracts.
If I was approaching this from the band side I would want this clause or something like it in the contract. If I was the agent, I would delete this clause and leave the door open to greater remedies in case of default.
Section V of the Exclusive Agent agreement specifies the agent’s commission rate. It also specifies when and how the agent expects to be paid. Section C makes interesting reading:
No commissions shall be payable on any engagement if Musician is not paid for such engagement, and only if non-payment is not due to Musician’s misconduct. If non-payment for all or part of engagement is the fault of Musician, the full commission for the contract price will be paid to Agent. This shall not preclude Agent from seeking and recovering damages to compensate for actual expenses incurred as the direct result of the cancellation of an engagement when such cancellation was the result of the intentional misconduct of the Musician.
If you screw up at the venue and the venue decides to send you packing without pay, you still owe the agent the commission. This is an agent’s worse nightmare. A group they send out gets caught in the parking lot with dope and underage girls and gets the boot. The agent may very well lose the account because of the incident and if the venue is a regular client, this incident could cost the agent a great deal of money. As an example, the Wand Dang Club fires a band without pay for misconduct of whatever nature and the club decides to sever the relationship with the agent. The agent might look at it as an account that has been serviced for years and was bringing the agency $1,500 a month in commissions. Those commissions are now gone and the band is to blame for the agent’s loss of $18,000 a year because of the band’s actions. Speaking of actions, this is what an agent might consider actionable as in suing you for damages and lost commissions.
In Section VI we have an issue to address:
VI. Duration and Termination of Agreement
a) The term of this Agreement shall be as stated in the opening heading, subject to termination by either party upon the default of the other of any provision in this Agreement.
At the beginning of the contract, the term of the agreement is specified but there is a problem. Let’s read the opening paragraph:
This Agreement begins on the _____ day of _______, 20_____, and the term shall be valid through the ___ day of __________, 20__, and shall be considered renewed at the end of the period herein unless Artist receives a written notice with the intent to terminate this contract. Any questions relating to this agreement shall be interpreted in accordance with the laws of the State of ______________________.
The first thing that jumps out at me coming from the band’s point of view is that the contract remains binding for the artist but not the agent. This could be amended to include a band option to notify the agent in writing at the end of the term that they are severing the relationship.
There are other causes for the termination of the agreement based on the agent’s performance. These clauses can be easily tweaked to reflect the reality of the situation. For example, it is very unlikely that a band performing original music will be getting one-week stands while on the road. The rest of the performance benchmarks should remain. Keep in mind that the agent’s job is to increase your performance revenues. Filling in these blanks sets the performance benchmark so make sure that it is a good distance from where you already are.
a) In addition to termination pursuant to other provisions of this Agreement, this Agreement may be terminated by either party, by notice as provided below, if Musician:
i) does not obtain employment for at least ______ cumulative weeks of up to six night engagements to be performed during each year during the term hereof; or
ii) does not obtain employment for at least _______ single night engagements to be performed during each year of the term hereof.
b) Notice of such termination because of default of either party shall be given by mail addressed to the addressee at his last known address. At such time the Musician will play out those engagements specified and contracted by Agent.
This could be modified to remind the agent that the continuation of the relationship during the initial term of the agreement is an “at will” arrangement for both parties.
Should things go sour between the parties, we have Section X. standing by to show the penalties for violation of the agreement by the artist.
X. Damages
In view of the fact that musician is able to secure employment at establishments throughout the United States and the world and is further able to secure agents throughout the same area, it is difficult and costly for Agent to ascertain the names of agents subsequently engaged by Musician or to ascertain the number of or value of subsequent engagements undertaken by Musician. The parties agree that in the event of Musician’s breach of this Agreement either by securing bookings from another agent or person or by refusing bookings secured by Agent, then Agent’s damages shall be determined as follows:
a) For each remaining month of this Agreement after Musician’s breach, Agent shall be entitled to receive as damages an amount equal to the average monthly commissions to which Agent was entitled prior to Musician’s breach. The average commission shall be based on actual engagements by Musician as well as bookings refused by Musician.
b) Agent shall be further entitled to receive his or her costs, disbursements and attorney’s fees as provided by law in any suit to collect damages provided herein.
As mentioned above, an agent can suffer loss of revenues and reputation when an artist on the roster causes trouble or violates the agreement. These terms are entirely fair for both the musician and the agent. The musician at this time has broken the promise not to approach other agents during the term of the contract. The agent is due compensation for this violation. This is not always a bad thing for a band or a talent-stealing agent though. Should the band acquire next level management or a label deal that has catapulted them into the public eye and the next level of personal appearances, a new agent viewing the band with greed might think it a bargain to pay off the old agent the balance of the estimated commissions earned and make a clean break. If the old agent was booking the group for $800 a night and the new agent has them on a national tour pulling $5,000 nightly, it would only take the new agent a few performances to recoup in commissions what it cost to buy off the old agent. If time goes by and the band falls from national grace, they may still have a friend with the original agent on the way down because they left under, if not ethically, at least legally sound circumstances where the agent got some compensation.
You will notice that the signature line at the end of the contract is for the agent and band leader. Some agents require the signatures of all the individual band members making them equally liable. So if you have done your homework from previous chapters, the agent will realize that the new client isn’t a group of individuals at all, but a bona fide business with a real name, checking account and tax ID number. It will be much more impressive than a band that asks the agent to cash the check because none of the band members have bank accounts.