Return to The Indie Band Vault
The Indie Band Vault will begin posting brief articles and legal analysis of issues facing today’s quickly changing music industry. We have retained the services of well known Boston, MA. entertainment lawyer, Michael DeYoung. Be aware that the information in attorney DeYoung’s advice column (The Music Law Connection) is general in nature, and not designed to address the legal issues of any specific individual. If you are in need of such services, you are advised to contact a licensed attorney directly. Attorney DeYoung does accept certain clients on a limited basis. Information re: Attorney DeYoung’s fees and services, etc. may be obtained by writing to him at The Music Law Connection.
Music Law Connection 5/24/04 - #1)

This Months Topic: “Contract & Negotiation: What’s The Deal?”

A contract is simply a promise, or set of promises, between two or more parties, for which the law gives a "remedy" (usually money damages) in the event such promise or promises are broken (aka "A Breach of Contract"). Translation: Just because a "deal" doesn't say "Contract" on a piece of paper doesn't mean it's not a "Contract." Examples of day to day contracts can be things such as apartment "leases," car rental "agreements," or promises to pay your band X amount of money in return for playing a "gig." Contracts involve either (A) an exchange of promises “I promise to show up and play for X amount of time if you promise to pay me X amount of money,” or (B) an exchange of promise for performance “If you show up and play, I promise to pay you $200.00.” Notice the subtle legal distinction here. In the “exchange of promises” you are “locked in” because you exchanged a promise for a promise. However, in the second situation “promise for performance” you are not locked in, but rather the other side is- they made the promise. “If you show up and play…” the other side must pay you $200.00. However, you are free to decide not to show up and play! Indeed, you never promised to! This is similar to offering a reward for a lost item. “If you find my lost Fender “Strat,” I’ll pay you $100.00.” This is a “promise for performance” because no one has “promised” “to find” anything for you. Nevertheless, what both types of promises have in common is an exchange of “something for something” it’s just the terms and conditions that trigger each parties obligations that differ. Finally, most promises can be either written, or simply "verbal," i.e. word of mouth. However, certain types of promises must be in writing.

Generally speaking, written contracts are typically a safer way to minimize “misunderstandings” between parties; which in turn means that “negotiation skills” and “negotiation power” are very important. One way of looking at “negotiation power” is “your ability to either help or hurt the other side.” If you can do neither, they will likely have minimal interest in negotiating with you; why should they? One book on the subject of negotiation skills/tactics that I highly recommend (and is a relatively “short read”) is called “Start With NO” by Jim Camp (available on Amazon.com) for around $22.00. This book offers down and dirty real world advice on how to get deals done that work to your advantage. However, a band that is just starting out is likely to have minimum “negotiation power” and so may have to either (A) settle for what is offered, or (B) decline a gig. But, it doesn’t hurt to begin a little early preparation. Check back to this site for future discussions regarding music industry legal issues and the negotiation process.

The next article will focus on “Exclusive and Non Exclusive Contracts.”

Semper Paratus!

M.J.DeYoung, Esq.

The above does not constitute specific legal advice, and is provided only as general information in a public service capacity. For questions involving specific legal issues, please consult an attorney directly.
Return to The Indie Band Vault