We’re running into a costly snag here with our entertainment programs
In today’s changing world of entertainment contracts, there is an issue that is becoming quite problematic, causing delays in contract processing, delayed marketing, lost revenues and higher costs due to the back and forth negotiation over terminology and legalese.
The issue: The Tribal casino addendum.
The addendums themselves are important because it’s a form that can create a more equal contract agreement between your Artist and the casino. I mention Tribal addendums specifically, since commercial non-Tribal Gaming properties operate under different protocols. The issues occur in the language being used in the Tribal addendums versus the language in Artist contracts.
The entertainment business has been around for a considerably long time, and over those years, it has created a contracting process that is accepted and works. Each contract is a basic template with a lot of standard language that tries to cover every possible scenario. It’s a one-sided agreement and is accompanied by a contract rider, which has a lot more specific language that relates directly to the Artist requirements, like hospitality, production needs, room and ground needs, etc. The agencies are very hard-line with their contracts and tend to cross off a lot of points that the casinos are making in their addendums.
So here is some of the language/terminology that creates the conflicts, delayed signed contracts, add-on fees, and delayed marketing and promotion. Do you recognize any of these?
TICKET ISSUANCE
Casino language: Purchaser shall have the right to dispose of tickets in any way it sees fit so long as the ticket price does not exceed the prices stated in the Principal Agreement, or unless otherwise approved by Artist.
Artist/Agency reply: Artists have the right to approve all ticket scaling/pricing.
REPORTING/AUDIT
Casino language: Purchaser shall not be required to provide a ticket manifest, statement of box office receipts or gross or net income. Furthermore, Artist shall have no right of audit with respect thereto.
Artist/Agency reply: Artists will ask for access to your box office and expenses, but since casinos are flat guarantees, this should always be struck. They do have the right to know how many tickets were sold and what the gross revenue was from the ticket sales.
CANCELLATION CLAUSES
Casino language: Artist shall not have the right to cancel the engagement except for the reasons of force majeure or material breach by Purchaser.
Artist/Agency reply: Artists will always ask for a 30-day cancellation clause stating for TV appearance, etc. However, since casinos market and advertise months in advance of the shows, this is not realistic, so this 30-day cancellation clause should be struck. If needed, a reasonable compromise is a 90-day cancellation clause.
Casino language: In the event of a cancellation due to a force majeure occurrence, provided that Artist is present (at the venue if Artist’s hotel is on-site or in the city if Artist’s hotel is not on-site), ready, willing and able to perform with all material elements required for the performance (e.g., band, equipment, etc.), Purchaser shall pay Producer the full guarantee, otherwise, any deposits received in connection with this engagement shall be returned to Purchaser, within ten (10) business days.
Artist/Agency reply: New language has been popping up about this subject, where even if the Artist is not close by or on-property or still at a departing airport, they can claim to be paid in full due to this clause. However, this is ridiculous, and this type of clause should be struck.
LIABILITY
Casino language: Notwithstanding anything to the contrary set forth in this Agreement, neither Party shall be liable to the other with respect to damages or injuries to persons or property resulting from the other Party’s negligence or intentional acts.
Artist/Agency reply: Artists will ask to be named as an additional insured. We tend to cross that out on all riders, since the Artist should already be carrying general liability insurance for themselves.
RIDER PREVAILS
Casino language: If any definition, terms, or conditions of the Agreement or other riders are omitted or in contradiction to this Rider or are for whatever reason ambiguous or susceptible to differing interpretations, the definitions, terms, and conditions of this Rider shall apply.
Artist/Agency reply: An Artist’s contract will always state that their terms supersede all other paperwork. This is where you can easily reach a rock and a hard place. I recommend negotiating this to a reasonable compromise. Sometimes this is a very problematic clause.
ENTIRE AGREEMENT; MODIFICATION
Casino language: The Agreement constitutes the final and entire agreement between the Parties, and there is no agreement or promise on the part of either Party to do or omit to do any act or thing not herein mentioned. The Agreement is intended as a complete and exclusive statement of the terms and conditions of the Parties’ negotiations and agreement and may not be effectively amended, changed, modified, or altered without the written consent of both Parties.
Artist/Agency reply: Again, this terminology is in direct conflict with the Artist’s contract and rider, which state the exact opposite.
What can be done?
The basic goal is for the casino to hire an Artist to perform at their property. This is to draw in new guests, please existing guests, build the casino brand in the region, and generate incremental and gaming revenue on-property, day of show. The Artist is looking to perform, get paid, and continue to build their fanbase and popularity. In today’s world, Artists’ main source of income is from live performances, since sales of CDs is miniscule with today’s downloading technology. So live performances are very important to the Artist’s income stream.
So unfortunately, we have to have a legally binding agreement that guarantees the Artist gets paid and that the casino supplies all the infrastructure for the concert.
What is happening today is that lawyers, both for Tribal Casinos and for major Artist agencies, have decided to draw lines in the sand. Compromise is very difficult, since neither side wants to give up their points. There are situations existing today that, as a company, we have had so many back and forth negotiations over some of the points similar to what is above, that no one can read the scans and we have to start over. A concert for a date, that should have been promoted with at least a 90-day window, ends up with a much smaller time period to promote. This is all created by all of the back and forth negotiations and rhetoric, arguing over whose paperwork controls the legal agreement.
The most important point here is to simplify and compromise on this and other conflicting language. In all the years I have been involved with booking and buying entertainment, conflicts and problems get worked through and solved. Each party wants the event to go smoothly and successfully. Never has a problem escalated to bring in a lawsuit and lawyers, although of course there are rare exceptions. Generally speaking though, if you do your advancing well in advance of your performance date, you can catch issues before they grow into something crazy. After all, we all just want a great show.
