TMN Ask A Lawyer: Gig Contracts
TMN Ask A Lawyer is a semi-regular column where our readers receive expert legal advice from a renowned entertainment lawyer. :: ASK A LAWYER - BAND MANAGEMENT :: ASK A LAWYER - INSURANCE :: ASK A…
TMN Ask A Lawyer is a semi-regular column where our readers receive expert legal advice from a renowned entertainment lawyer.
Reporting from inside the Australian music business since '94.
Q: Our band is from Queensland and we just played our first show interstate, but the venue is refusing to pay us and we haven’t done anything to breach their terms and conditions. How do I avoid this happening in the future and what are my legal rights in this case?
A: This is a really unfortunate situation, but not a hopeless one. What we need to do is establish the terms of the agreement under which you were engaged to perform. If you’ve fulfilled your obligations to the venue under that agreement then you have a contractual right to be paid for the services you have provided.
Chances are that when you accepted the gig you were provided with a booking sheet which set out the basic terms of your engagement: the date, the load-in times, the backline provided, and the terms on which your payment was calculated. In addition there may have been additional terms relating to how the services needed to be performed and how you needed to behave on the premises.
If there isn’t a booking sheet then there could be some emails and telephone conversations between you and the venue in which the general terms were agreed. If you had phone conversations but didn’t take written notes at the time the terms could still be binding, but it’s likely there will be a dispute as to what was actually said. You and your bandmates should collate all of the correspondence you have from the venue and try to put together the various terms of your engagement.
In the absence of a written agreement, if you’re able to prove that you turned up on time, you performed for as long as was expected, played professionally, weren’t drunk or aggressive or obnoxious to staff or patrons, and didn’t damage anything, then you can make the argument that you have fulfilled all of the basic obligations of your engagement. If the venue still refuses to pay then you should send them a formal letter of demand stating that you have fulfilled your obligations to them, noting that they have so far refused to pay you without citing reasons, and stating that you expect them to pay you within a specified time frame.
If the venue rejects or ignores the letter of demand then you can try to recover the debt in the small claims division of your local court. This is a relatively cheap way to recover small debts, but if the amount you are owed by the venue is small it may not be worth the investment of time. You could also engage a lawyer to help you recover the debt, but this will incur further costs and may also not be worth the effort in this case.
To prevent this from happening again, you should always try to enter into a written performance agreement which clearly sets out the terms on which you are engaged, including the terms of payment. It is much easier to make out a claim where there is a written agreement setting out the respective parties’ obligations to each other. You could also try to ask for a proportion of your performance fee up-front, but given most bands are playing for door takings (and maybe a percentage of the bar) it’s unlikely that most venues will be prepared to pay you money before you’ve performed.
If you’re not in the mood for a fight, it might be worthwhile writing this one off and making sure that you always enter into a written agreement for future performances. This isn’t foolproof as of itself, but at least you will have a document to rely on when you’re making out your case in future.
Andrew Cameron works for Brett Oaten, who established his legal practice during the grunge era, and specialises in music and other entertainment matters. In the music industry Oaten principally represents artists and some current clients include 360, Angus & Julia Stone, Empire Of The Sun, Lorde, and Troye Sivan. Oaten is also a founding board member and life member of FBi Radio.
Submit your questions to info@themusicnetwork.com or tweet them at us: @themusicnetwork
To read more about Brett Oaten and to get in contact, visit his firm’s official website brettoaten.com.au. Oaten tweets at: @brettoaten
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Reporting from inside the Australian music business since '94.
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