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How to get & enforce contracts for gigs, are e-mails enforceable contracts?, etc.

Discussion in 'Band Management [BG]' started by Joe Nerve, Aug 27, 2005.

  1. Joe Nerve

    Joe Nerve Supporting Member

    Oct 7, 2000
    New York City
    Endorsing artist: Musicman basses
    I'm throwing the towel in. Need suggestions from people who have succesfully dealt with this stuff. Please don't suggest anything you haven't yourself done, because while some things sound great in theory - in the real world (or in NY) they simply don't fly.

    A $600 steady gig that we've had, cancelled our last show with them the day of. They've been good to us so we let it slide. We were booked again for last night and we called to confirm it. 12 times. They wouldn't return our call, and were avoiding us. We left 2 final messages last week and 2 days before the show confirming that we WILL BE THERE. We didnt' get any resonse.

    Today I get this email:

    Sorry for the late notice, but Fulgum's is cancelling all band dates and is changing the format of the bar/restaurant. For now, we have decided to not have any live music and have opted for having a dj on alternate Saturday nights. I am trying to get the new restaurant aspect of my business established and unfortunately I need to change a few things around. I have been out of town a lot lately (due to personal family matters), I am sorry for my lack of correspondence.

    Bruce Fulgum

    We could have booked another gig. Now we can't. Were out $200 each, and we have no recourse.

    How do we get written agreements? It's tough enough getting a gig when the bar doesn't know you - I can't imagine a bar owner signing and mailing any kind of agreement. Are email agreements valid? What exactly do you write in the agreement? What do you guys with experience in this do to ensure you won't get screwed and I'm not interested in the punching them out method. I'm not in a very good mood right now.
  2. kegbarnacle


    Nov 18, 2003
    Unfortunately I don't know that there is much you can do.

    Even if you get a signed agreement, it just changes your problem to a new problem. If they break the agreement, you have to enforce it. Which means the legal system, and in the end you probably spend more than you'd get.
  3. JimmyM


    Apr 11, 2005
    Apopka, FL
    Endorsing: Ampeg Amps, EMG Pickups
    Good questions, Joe. I don't know if case-law exists to where email agreements are valid. But verbal ones usually are except where property is concerned. You can definitely ask for a contract (most booking agencies do), and you can have your own contracts ready to go where you just whip them out after they agree to hire you and fill in the blanks. If it's a first-timer, I'd almost insist on it.

    However, contracts are only worth what both parties perform, and if they breach, you can go after them in court, but is it worth it? After filing fees, it may not be worth it to you. That's what they're counting on when they cancel you.

    So your recourse is as elaborate and expensive as you want to make it. Sorry it happened, but that's showbiz.
  4. Tingly


    Jul 16, 2005
    Yonkers, NY
    Yes, a series of email messages can constitute a legally enforceable contract. There has even been some national legislation on this subject recently on things like the validity of an electronic "signature" and the significance of clicking on a specific "I agree" link. The only reason I know is 'cause I teach a class on NY Business Law at a local college.

    BUT, kegbarnacle hit it right on the head: unless there is a lot of money at stake, no NY attorney will want to get involved if there is a breach of the contract, and it will cost more time, money and headaches than you will recover.

    Small claims court might actually be the way to go. But that presents problems, too, as all the band members would have to sue together, you can't be a corporation, you usually must sue in the bar's home county, etc., etc.

    In the future, I would advise you and your band mates to consider a lack of response to be a loud "NO!"

    I know the urge to play out and get paid is very powerful, but in that situation, in retrospect, you should have sent one last message a few days before the gig saying, "Since we have not heard from you, we consider the gig cancelled and we are both free to make other commitments. Hope to work with you again in the future." And left it at that. See, hindsight is always 20-20.

    Tingly, Esq.
  5. WalterBush


    Feb 27, 2005
    Yuma, Az
    Full disclosure, I'm a certified Fender technician working in a music store that carries Fender, Yamaha, and Ibanez products among others.
    My band Ariel recently had something similar happen. A club we had been playing at for over a year changed management. Management ran it into the ground and decided to close--without telling anyone. We only found out because our keyboard player drove by, didn't see our sign in the window, and went in to post another.

    This club had sold tickets to a charity event, had PA equipment inside that we loaned them (the new management tried to claim that it was theirs, that they had bought it with the property. We resorted to the threaten-to-punch-their-clock method to dissuade them, with no repercussions), and had musicians booked for two months, and didn't tell anyone. We had to make sure our fans were aware we weren't playing, which meant a lot of emails, phone calls, and a few postcards.

    We weren't out much money, so court was not going to be worth it, but it was damn rude. The only thing I can recommend doing, and this worked for a jazz trio I was in when I was in college, was to go out of our way to make sure our fellow musicians knew how the managers treated us, and warn them off of taking a gig there. In this current case, that involves using the actual names of the people involved. The lady in Phoenix had to grease a lot of palms, make a lot of apologies, and pay a lot of what she owed bands to get another jazz act to come in after a few months, and changed the way she dealt with bands. Hopefully we can persuade the crop here to do the same thing by making sure no Alameda band will play for them, no matter what venue they own, and warn music lovers at other venues not to patronize whatever place they appear at next. Sometimes this actually works.

    Unfortunately, it's true--welcome to showbiz. Without wads of cash to throw at attorneys, you're likely just going to have to bend over a lot and make sure it doesn't happen twice.
  6. Joe Nerve

    Joe Nerve Supporting Member

    Oct 7, 2000
    New York City
    Endorsing artist: Musicman basses
    I agree.
  7. Steve


    Aug 10, 2001
    When I first moved to St. Augustine...I sued 4 bars in 6 months over stupid stuff just like that. I won everytime and never lost a nights work. It was easy. Verbal contracts are binding...you have material damage...you have a case. At least in Florida you do.
  8. Your only safeguard against getting screwed at "this" gig is by making sure the bar wants to have a "next" gig.

    I think small claims court could back you up, but written contract would be a great asset in that case. Legally binding or no, a verbal contract ends up a "he said, she said" situation. The bar owner's word against yours, I don't necessarily like those odds.

  9. bassontherun


    Jul 9, 2005
    Unfortunately not that unusual. As noted above, probably more expensive to go through legal channels than the lost gig would have paid. We've had similar experiences and usually just curse their names and go on with life. We've found out about two cancellations when we showed up for the gigs! Real bummer!! In one case, a promoter cancelled a multi-band event and failed to tell any of the bands--$150 per band for 45 minutes each. The knucklehead called a few weeks later when a band cancelled on them at the last minute. Told him I'd be happy to cover the gig for $1000. Needless to say, I didn't get a return call.

    No question that a written contract is a great tool. However, we find few bar managers willing to sign them ("Sorry, partner, I'm a bartender, not a lawyer. I don't sign those things." is a common response). Take a look at the local bookstore, GC or on-line. Several "running you band" books have sample contracts.
  10. Bassic83


    Jul 26, 2004
    Texas, USSA
    You know those greasy old rags out back? The ones they wrap them tortillias up in? That's all you need, them and a watch crystal. And some sun.... :eek: :D :D

    Seriously, you need a contract for every gig. Written in a way that protects you, not them. See above for suggestions on where to get samples. Every time you book a gig, you must have a signed contract. Most club owners will sign them if you explain that this is standard business practice, and is not punitive. Also explain that it is for their protection as well, once signed, you are committed to that date, to play for X number of hours, for X number of dollars. Without that, you are on the short end of the stick. And if they refuse to sign, ask if you can tape the verbal agreement. If they won't give you an enforceable contract, you don't need to be playing there. Period.
  11. jondog


    Mar 14, 2002
    NYC metro area
    Wow Joe, you're having a string a bad luck w/ the bookings. Yes use a contract (ours is very basic w/ date, times, gear needed, $, etc.) but don't be too surprised when it is not honored. There's no way I'd go to small claims court for $600 and club owners know it.

    I would love to get an agent, but all the big agencies around here have bad reputations. Maybe the rep. isn't all the agent's fault, when a venue cancels last minute and the agent has to tell the band, is the band angry at the agent or the venue?

    We're in the same market, so an outgoing person who wanted to earn a bit of commission $ could book both our bands and several others I know relatively easily. There would still be cancellations, but at least it wouldn't be me doing all the phone calls and leg work to book and confirm the show only to have that effort wasted by the canceller. When this mythical agent person called me to tell me about a cancellation I'd say "bummer" and move on, but when I've done all the booking work and then I find out they've cancelled and I have to tell the guys and they get mad at *me* then it's much more than just a bummer.
  12. Joe Nerve

    Joe Nerve Supporting Member

    Oct 7, 2000
    New York City
    Endorsing artist: Musicman basses
    My lower nature often wants to get one of my old school friends to start taking care of business for us. I try so hard to do the right thing, be peaceful, loving and ethical - but sometimes I really wonder if simply knocking the living crap out of some of these lowlives would change the way they treat people in the future.

    Ahhh.... growing up and doing the right thing.....
  13. slrae

    slrae Guest

    Aug 17, 2005
    St. Louis, MO
    All of our dates are considered "first come, first served" and are open to anyone unless we have a) a non-refundable retainer and b) a signed contract. If we don't have both for any date, then the date is still open and the first party to provide both items gets the gig. We state that up front in the beginning and make sure they understand. It's amazing many people think they are smart enough to run a club but play dumb when it comes to contracts and booking.
  14. Tingly


    Jul 16, 2005
    Yonkers, NY
    Joe Nerve-

    Ain't ever necessary to crawl down onto someone else's low level. LIFE will take care of them for you.
  15. xshawnxearthx


    Aug 23, 2004
    new jersey
    i guess its good that my band deals with mostly dudes are age doing the shows and not older guys thinking they can just walk all over the acts and have no reprecussions.

    with everything, its business. club owners dont care if you have to feed your family, they only care if THEY can feed their family. if band nights arent doing it, and the business is losing money on having a live band, then he si doing what he has to do to survive. it is sucky that he didnt get back to you in a timely matter and that you guys lost money on it, but you cant blame him for wanting to go in a new direction. he should have given you more time to find another gig before cancelling your steady gig. maybe thats the way he does business.

    as for contracts. if they are way out there, most clubs wont sign them and say "hey, if you wanna play, heres the deal, if you dont like it we will find another band to do what we want.." it sucks, but there is probably a dozen or more acts that do what you do(and what i do for that matter) so demanding stuff with a contract might not fly, but it may be worth it. if its a basic. some places may like this because of how professional it is to have contracts, and it may work in your advantage.
  16. Even if you win a small claims court battle, the real struggle is collecting on the judgment itself. Enforcing a judgment can be very very difficult. There are companies who make money doing just that and of course they take a large percent when they are succesful. I don't know how it is in NYC but in Cali, the court clerk does not require the losing party to cut a check on the spot. It's up to the prevailing party to collect the judgment and there in lies the rub.

    Now the squeaky wheel get's the grease. Me, I'd hound (and I mean hound) the dude for some kind of compensation. At least half of what was to be expected.

    Too bad the Musicians Union doesn't get involved in this kind of thing, but it seems to me that unless your cutting a soundtrack they ain't to interested.
  17. Tingly


    Jul 16, 2005
    Yonkers, NY
    mcbassdude is right. Collecting a judgment is a whole other legal specialty.

    Just finding the correct NAME of the club "owner" who is legally responsible, so that the judgment is "enforceable," can be a terrible pain in the butt, even for a qualified attorney.

    Clubs are often owned by "shell" corporations that are wholly owned subsidiaries of another corporation, which is itself owned, in turn, by two other corps. (The idea is, if the IRS can't FIND the money hidden in the maze, they can't TAX it.)

    Depending on how underhanded and petty an owner is, he or she may have the corporation's attorney "wrap up" (dissolve) the company and transfer the club itself into a new corporate name, rather than pay even a small judgment to a band or anyone else. Believe it or not, this is considered a viable legal strategy in NY!

    It's a messed up system in many respects. It's cumbersome, and complex, and really designed to only handle substantial disputes, where there is a ton of money at stake.

    Very truly yours,

    Tingly, Esq.
  18. Music Attorney

    Music Attorney

    Feb 22, 2004
    IMO, there's a good thread at the link below regarding live performances, contracts, etc. including a sample live performance gig from yours truly.


    The contract is obviously just meant as a starting point because, as mentioned in this and other threads, issues raised by live performances make it impossible to create one contract that will work in all situations - - not that it keeps clients from saying “don’t you just have a ‘standard’ contract we could use? We don’t want to spend any money on this.” ;-)

  19. Ryan L.

    Ryan L. Moderator Staff Member Supporting Member

    Aug 7, 2000
    West Fargo, ND
    I guess maybe my situation is different, but we always have a contract when we play. But, we go through a booking agency, and they always have a signed contract for us before we get to the venue. We have come close to having a problem once, but thankfully, having that contract saved us.

    The one that is sent out for us is quite specific in many areas, including the cancellation issues and other things that have been discussed here in this thread. It also covers requirements for us to play at the venue, such as 220v power within 50 feet of the stage, having a suitable stage/playing area, hotel rooms (for 2 or more night gigs), how much and when we get paid, etc. etc.

    I know this may seem like it is a bit much, but it has paid off for us many times over.
  20. JimmyM


    Apr 11, 2005
    Apopka, FL
    Endorsing: Ampeg Amps, EMG Pickups
    +1 for what Ryan said. I wouldn't stop booking gigs on your own, but it does help to have an agent run interference for you. Club owners respect agents much more than they do bands because they think all bands are desperate for work and will do anything they want, whereas the agent usually has a lot more on their plate and doesn't have to cowtow quite as much to make a living.