#781062 - 05/13/03 11:37 AM
WHAT TO DO IF YOU DO NOT GET PAID FOR A GIG
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Rafael Ventura-Rosa
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Registered: 05/13/03
Posts: 1
Loc: Miami
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LEGAL MEASURES TO GET PAID FOR YOUR GIGS
http://www.groups.yahoo.com/group/TheMusicBiz
What to do if I do not get paid for a gig.
I am sure that all the working musicians in this eGroup have on at
least one occasion, encountered the situation of performing at a gig
and then being told, for a number of reasons, that the venue owner
had not made enough money to pay the artist's fee. This usually
takes a variation of not making enough at the "door", not selling
enough tickets, etc.
For starters, no reputable venue would refuse to pay an artist a
deposit (anywhere from 10-50% depending on the overall gig fee). Tne
idea being that if the gig is cancelled, the artist will maintain the
deposit as "liquidated damages" because they may have passed up
another gig in order to be available for the venue paying the
deposit. At the very least s/he/they will receive some compensation
and may even be able to obtain a substitute gig (even if it is at a
lower price, the overall result may turn out to be financially
favorable to the artist.) This, of course, assumes that the "band
leader" will share any such deposit with the other members of the
group. Often times, the leader will keep the money from any
deposits for a cancelled gig, simply informing the other band
members of the cancellation. This is especially true when it is
a "pick up" situation instead of a group that regularly works
together. For this, among other reasons, you should never agree to
a performance unless there will be a deposit (unless, of course, it
is someone you know very, very well and have reason to trust
them based on past experience.)
In the event that you have not taken a deposit, perform the gig and
then get "stiffed", you do have a remedy, even if there is no written
contract. Many times I have heard musicians commenting about such
situations and saying yhere was nothing they could do because they
did not have a "contract". That is technically not accurate. In
such case you do have an "oral" contract even if not a "written"
contract and a court will upheld the fee if you can show some
evidence of what was agreed upon. If the gig fee was $2,500 or less
(in some jurisdictions up to 5,000 or 10,000), a lawsuit can be filed
in "Small Claims" court. The process is relatively informal and
inexpensive though it may involve alot of waiting time on the day the
case is heard. In addition, many small claims courts hold their
sessions at night (starting around 6PM).
Even if you cannot show any evidence of an agreed upon price, the
court will decide the case based on the legal concept of "quantum
meruit" (the amount deserved) and will determine it based on the
value of the performance within that musical community, the amount,
if any, of money made by the venue owner, promoter, etc. and the
relative experience and notoriety of the performer(s) involved.
Witnesses can be called and examined under oath and the venue
owner/promoter will be notified to appear in court on the given date
for a hearing of the matter.
Many times the cases are sent out for binding arbitration, which is
quicker but the decision cannot be appealed and is usually some sort
of "split the difference" type compromise unless you can show some
strong evidence of what was agreed upon.
If the other party does not show up, the court will grant you what
is known as a "default judgment" which means you win by default.
(Sort of like a "forfeit" in baseball.) In such a case, you will
have won but if you cannot enforce the judgment you won't have any
means by which to be paid. Because of this, I usually counsel
performers to maintain copies of any checks they receive from the
contracting parties (for example, for deposits, etc.) At least, you
will have a bank account that you may be able to "attach" in order to
force the other side to pay you the amount of the judgment. You can
also get the court to issue an "information subpoenae" with
a "restraining order" directing the bank to "freeze" the account and
tell how much is in it so that you can eventually have the court
direct the bank to pay you the amount of the judgement directly out
of the procveeds of the account.
A "judgment" is usually good for 10 years or more and can be used to
impose a "lien" on the property (real estate or personal property,
e.g., a car or other vehicle) of the party who did not pay you. That
means that if and when such party sells the property, you have to be
paid directly out of the proceeds of such sale in the amount of the
judgement, plus interest from the date the judgment was issued.
Hope this info helps at least some of you folks out there though I
really hope you never have to make use of it because you will make
sure to use appropriate contracts and at least take deposits and/or
get paid before you actually finish your performance.
Take care,
Rafael Ventura-Rosa
musicbizlawyer2002@yahoo.com
http://www.groups.yahoo.com/group/TheMusicBiz
_________________________
Rafael Ventura-Rosa
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#781063 - 05/23/03 04:58 AM
Re: WHAT TO DO IF YOU DO NOT GET PAID FOR A GIG
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surfmonkey
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Registered: 06/08/02
Posts: 974
Loc: Los Angeles, CA, USA
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I got one for you lawyer dude. What if a band shows up for a gig and it has been double booked. The booking agent blames the club, the club blames the booking agent, leaving the band in the middle. Who does the band go after for their money? How much of the original fee is recoupable? I have seen a ton of agent contracts that specify that in this particular case, the agency is not liable and cannot be taken to court. Is that legal?
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#781064 - 06/03/03 07:44 PM
Re: WHAT TO DO IF YOU DO NOT GET PAID FOR A GIG
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daddyelmis
Gold Member
Registered: 04/09/02
Posts: 704
Loc: USA
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Originally posted by surfmonkey:
I got one for you lawyer dude. What if a band shows up for a gig and it has been double booked. The booking agent blames the club, the club blames the booking agent, leaving the band in the middle. Who does the band go after for their money? How much of the original fee is recoupable? I have seen a ton of agent contracts that specify that in this particular case, the agency is not liable and cannot be taken to court. Is that legal? 
An agent that isn't getting at least a one-page contract for gigs, or a master agmt with a club they book often and then following up in writing confirming specific gigs (i.e., a letter) isn't much of an agent.
Bookings are like car reservations, and as Seinfeld said of car reservations, "You see, you know how to TAKE the reservation; you just don't know how to HOLD the reservation. And that's really the most important part of the reservation: the holding. Anybody can just take them.” 
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http://www.ruleradio.com "Fame is like death: We will never know what it looks like until we've reached the other side. Then it will be impossible to describe and no one will believe you if you try." - Sloane Crosley, Village Voice
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