Ben Challis is a UK lawyer specialising in music and entertainment law. His clients include the world famous Glastonbury Festival and Ben also acts for Africa Express, Damon Albarn’s eclectic collaboration of African and Western musicians, for the Prince’s Trust, for Yourope, the European festivals association and for the fire breathing, pulsating, monstrous stages and shows from Arcadia Spectacular. Ben is a board member of the International Centre for Crowd Management and Security Studies. In 2006 Ben co-founded A Greener Festival, the global environmental campaign group that works with music and arts festivals around the world to promote environmental good practice, and Ben is a visiting professor in law at Buckinghamshire New University and a visiting fellow at Sheffield Hallam University. He edits Music Law Updates.
As the festival season enters its busiest period in North America and Europe, most event organisers reluctantly turn their attention to the lengthy documents arriving from booking agents in their post box or inbox: the ‘contract’ for the bands and performers that the bookers have selected for their events.
Now almost every booking will include certain agreed contract terms: a date, a time, a stage / venue, details of the deposit and the payment of the fee. So how much paper does that take up? Well less than a page of A4 usually.
So why all these lengthy documents?
Well, it’s the way the live music industry has evolved. Agents send out contracts, usually with agreed terms on a single page, and will often attach pages of unagreed and usually very one-sided ‘standard terms’. Mostly these come as an addendum, and the contract will also incorporate one or more artist riders that might cover catering, hospitality, technical requirements and billing.
But increasingly, these also contain additional ‘legal’ provisions such as clauses covering legal liability if things go wrong, insurance, clauses asking the promoter for indemnity and to insure the artist in the event of accidents, jurisdiction clauses and clauses covering anything from how tax will (or will not) be deducted, to who is in charge of security during a performance.
In fact the rider may not even be sent with the contract. It might arrive a week before, a day before, or even on the day of the event. But if the promoter has agreed to ‘incorporate’ that document into the contract then it is legally binding, not least if the promoter has specifically agreed to ‘accept all terms of this rider unless waived in writing by the artiste.’
So a booker might have agreed to things they never knew they agreed to – and that can be a real problem, as some promoters have found out to their cost.
Most people have heard of artist riders because of the extraordinary and often very funny provisions they contain, and because they provide a glimpse of rock ‘n’ roll backstage life. Surely everyone has heard the story about Van Halen demanding that promoters provide bowls of M&Ms backstage – but with all the brown ones taken out? But does Mariah Carey really ask for a puppy and a kitten to play with backstage?
Does Sir Paul McCartney want an all white dressing room with a range of specifically sized pot plants, vegetarian catering and absolutely no animal by-products such as fur and leather used anywhere backstage?
Does Madonna need her own vegan chef and acupuncturist?
Did Lorkerse festival in Belgium really go meat-free for 24 hours after Morrissey banned burger and hot dog vans on his 2011 tour rider? And does Iggy Pop rather amusingly demand two floor-mounted fans “so I can wear a scarf and pretend to be in a Bon Jovi video”? You look them up!
But the issue behind riders is more serious. Would you buy a suit or a dress without trying it on and knowing the price? Would you buy a car without knowing what make it is and without checking if the engine works? Would you buy a house without at least a quick visit and a survey?
The Glastonbury Festival, the Roskilde Festival in Denmark and T in the Park in Scotland all have their own standard terms which they use to override the various unagreed agency terms, addendums, schedules and artist riders which might arrive and which are inappropriate for or irrelevant to their events.
Recently joining them in this effort is Yourope – an 80 member-strong European festival association – whose members have used Yourope’s Standard Terms for booking artists and live performers since 2012.
The aim of the Terms is to protect promoters from signing contracts which would otherwise force them to provide services / riders which the promoter does not see until after the contract has been signed. The Yourope Standard Terms also include standardised clauses around issues such as weather, security, insurance, health & safety, security, pyrotechnics, curfews, taxation and backline provision – a set of standard ‘default’ terms to counter and nullify the worst excesses of riders and agency standard clauses, but also to provide baseline standards for Yourope events on matters such as safety and insurance.
But the question remains: How did we get to this sorry state of affairs?
A good friend, who is an agent, recently explained to me that lengthy and often excessive riders are not the choice of agents (who of course have to administer the deals). However, they are not in a position to challenge them either: “Any agent I’ve ever worked with has viewed artist’s riders as something that they should contest at their peril – and there’s not much choice when issuing the contracts but to state that the rider forms a part of the overall agreement. Otherwise you’d have two documents out there which weren’t related, and agreeing one while refusing the other could cause real problems.”
But where do these documents come from? Well the same agent explained: “Many artist riders are drawn up by the production staff with the aim of impressing the act with the job that’s been done on their behalf, and the promoter with the gravitas of the act they’ve booked!”
Of course as some promoters are now issuing their own riders – and with additional terms and schedules often thrown in at the last minute alongside hand-amended contracts, you can end up with the situation on the night “with a whole load of paperwork that hasn’t been agreed.” Because of this “you’re effectively crossing your fingers and hoping that no dispute will crop up that leaves the relevant parties waving unsigned documents at each other.”
But a large group of festivals like the Yourope members issuing their own terms – or at least resisting the excess of riders and standard booking terms – is new.
This is a big change for agencies and for some artistes who are used to having everything they put into contracts and riders agreed to (or at least not disputed).
It’s no secret that agents have their own business models, which have been established over many years, and these will come with agencies’ own standard terms – which have often been unchallenged for many years. And let’s not forget that agencies represent artists, and it is they who create riders, not agents.
But the fact remains that agreeing to unseen and unknown riders is a poor way to do business. For European festivals in particular, US riders are at best 99% irrelevant and mostly unrealistic, wholly one sided and sometimes contain provisions that no sensible business could or should ever agree to.
The UK’s Association of Independent Festivals, which has 45 festival members, has held a series of meetings about adopting their own standard terms and increasingly promoters and event organisers are starting to query current methods of doing business.
A number of events are using their own contracts now to book ‘local’ and emerging talent, and recently I discovered, whilst acting for the ‘talent’ there, that one large US EDM festival is now issuing its own contracts and terms – some of which were also rather unpalatable – a complete turnaround from what has been the longstanding norm.
Why? Well many promoters and festival organisers feel that, quite simply, it’s time for change. Hopefully this will end up as change by consensus, to save everyone a lot of time, effort and money.