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Changing horses: on track with the Riderless contract – Ben Challis

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This week’s guest blog post is by Ben Challis: barrister, General Counsel for Glastonbury Festivals Limited, founder of Music Law Updates, visiting professor at Bucks New University, and co-founder of A Greener Festival, among other things.  In this piece, he writes about the European festival association Yourope’s Standard Terms (The Yourope Standard Terms) for festivals booking artists and performers for live performances. The aim of the Terms is to protect promoters from signing contracts which force them to provide services/Riders which the promoter does not see until after the contract has been signed, but the Terms also include standardised clauses around issues such as weather, security, and backline provision.

Would you buy a suit without trying it on and knowing the price? Would you buy a car without knowing what make it is and without checking the engine works? Would you buy a house without at least a quick visit and a survey? Almost certainly not. But when it comes to the world of live music the established practice has been to agree basic terms for a one off event, festival or even tour – for a festival the date, the time, the stage and how much the fee is and how its paid – but then make that deal subject to additional unseen and unagreed terms contained in booking agency standard terms – and most importantly in Artist Riders.

The myths, legends and truths of Riders have been the source of much amusement over the years. 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? Does Maria 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 different 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 twenty four 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”? Some but not necessarily all of the foregoing may be true! However, a requirement for a specific video wall costing an estimated €45,000 might be slightly less amusing if the promoter has agreed to this up front in an unseen – and unbudgeted – Rider.

A few years ago at the Glastonbury Festival we realised that Riders were becoming more and more irrelevant but conversely more and more important. American artistes in particular were sending Riders that were the equivalent of short novels – covering everything from what the band wanted backstage, to refunding tax levied on fees, to liability for injury and death caused during a band’s performance, to demands for facilities and equipment which would add unsustainable costs to any budget. What we were receiving were one page contracts which almost always started something like this:

It is hereby agreed that the Promoter engages the Artist and the Artist agrees to appear onthe date(s) and at the venue(s) and for the fee(s) specified in the Schedule hereto and on the terms and conditions contained in the Schedule the Additional Clauses and the Artist Rider and any other Artist addenda referred to herein.

But where was the Rider? Who agreed the other documents? If you are a promoter, club owner, or festival organiser, when you get a contract that refers to unseen documents, you need to ask yourself a number of questions – not least these:

  • Q: Have you ever seen the Rider?
  • Q: Have you ever negotiated the Additional Clauses
  • Q: What will it cost you?
  • Q: What are you actually AGREEING to, as this is a legally binding contract?

At Glastonbury we drafted up our own set of terms and conditions which we use when we are booking bands. These are incorporated right from the start – so agents and managers know our terms will apply at the offer stage – and that we cannot accept Riders and Addendums – unless these have been specifically agreed up front. I discovered that T-in-the-Park in Scotland and Roskilde in Demark had devised their own (very similar) systems to protect their events against the worst excesses found in Riders and agency standard terms. In early 2012 Yourope – the 80 strong European festivals association whose membership includes many of Europe’s leading festivals – approached me to draft a set of terms for their member festivals, many of whom were also worried about the same issues. Theywanted to be clear on exactly what they were signing and reduce the budget risks that can result from Technical Riders sometimes received just a week before a show day containing stringent terms that have to be met – maybe a specific PA and additional video wall – and additional costs.

The STANDARD TERMS AND CONDITIONS FOR ARTISTE AND PERFORMER ENGAGEMENT AT YOUROPE FESTIVALS are set out to be standard ‘default’ terms to counter and nullify the worst excesses of Riders and agency standard clauses. BUT conversely they can be over-ridden: if a festival and a booking agent agree special payment terms or special insurance provisions they can bring that up at the OFFER stage and write up that up in the main contract – what bands and their agents can’t do is rely on terms tucked away in other documents. And so what these standard terms are meant to do is to stop terms being imposed by agents and bands at a late date in Riders that they had never seen. And this is a BIG CHANGE for agencies and for some artistes who are used to having everything they put in contents and Riders agreed to. So it’s not been an easy process, but a substantial number of Yourope member festivals are now using the Yourope Standard Terms (or their own version of the Terms) and it now looks likely that a substantial number of the forty-five festival strong Association of Independent Festivals (AIF) will start doing the same in the United Kingdom.

So what is covered? Well this is not an exhaustive list and the main role of the terms is to draw a line under unagreed terms, but certain basic default positions are set out and these can be summarised as follows:

Payment terms: The standard payment terms for YOUROPE/AIF events is that any fee will be paid 50% thirty days in advance to the agent to be held in ESCROW, and 50% on show day or the next working day. There is also a provision that Festivals can deduct withholding tax if they are required to do this by their local tax authority but must provide documentary evidence of withheld tax and that the event must pay VAT where an appropriate VAT Invoice is provided. We have asked agents to make sure Net of Tax deals are accommodated in the CONTRACT itself – not in standard terms and Riders.

Insurance: After discussions with one of the leading talent agencies, Yourope agreed that all participating Yourope festivals would have minimum levels of insurance cover for public liability: These were set at €2 million for up to 15,000 attendees, €5 million for festivals in the 15,000 – 49,999 capacity range and €10 million for events with 50,000+ guests attending. At the moment we ask artistes who are not insured to inform the festival about this but in the future it is likely AIF and Yourope will require artistes to have at least a basic level of insurance cover. Festivals using the Yourope Standard Terms have also agreed to sign up to the new Yourope Health and  Safety Standard which is currently in its final draft, led by the Yourope Event Safety Group, which already provides a series of seminars and publications on health and safety for member festivals.

Force Majeure has been one of the most difficult areas to reach agreement on. As it currently stands, only hazardous weather – deemed a danger to the public by a public authority – or for example national flooding or a tsunami – would be an instance of force majeure where both parties ‘walk away’ ad suffer their own losses in the event of a cancellation. Inclement weather, where a band is ready and willing to perform, would not be force majeure and so the fee (or balance) remains payable by the Festival who must therefore guarantee the fee or take out cancellation insurance

Technical Riders: The fact remains that some artistes, particularly headline artistes, may have specific needs and technical requirements that need to be met: these need to be agreed upfront in the main contract. The Yourope / AIF position is that other than that, Riders DO NOT APPLY although there is an acknowledgement that even post contract, reasonable requests from artistes should be considered wherever possible to facilitate the best show possible. The YOUROPE / AIF standard position is that only equipment specifically agreed up front (e.g. NOT in a Rider) OR in the festival’s own technical specifications (e.g. such as the festival backline) will be provided by the festival – otherwise any artist demands are the cost of the artiste. Yourope members have agreed to put their own Technical Specifications online so artiste tour personnel can see what is being provided. These are often in online ‘walled gardens’ and would include technical specifications for the stage, the PA, lighting, crew, load in and out, as well as details of catering, dressing rooms, passes, security, transportation, noise limits, and curfews.

This is a BIG CHANGE for agencies and for some artistes who are used to having everything they put in contents and Riders agreed to, so it’s not going to be readily agreed to. It’s no secret that agents have their own business models, which have been established over many years, and these will come with Agency’s own standard terms – which have often been unchallenged for many many years. And let’s not forget that Agencies represent their clients – artists – and its artists who create Riders, not agents. But the fact remains that agreeing to unseen and unagreed Riders is a poor way to do business. For European festivals, in particular, US Riders are often at best 99% irrelevant and mostly unrealistic, wholly one sided and sometimes containing provisions that no sensible business could or should ever agree to. It’s time for change.

 

The current STANDARD TERMS AND CONDITIONS FOR ARTISTE AND PERFORMER ENGAGEMENT AT YOUROPE FESTIVALS can be found at www.yourope.org

More on Artist Rider demands here

Morrissey makes festival go meat-free

Van Halen’s M&M demand – and the reason why

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