Tuesday, November 20, 2012

How to get paid at the end of the gig.

What happens when a venue doesn't want to pay me even though they said they would?

I've heard plenty of crazy ideas about what musicians should do to protect themselves from getting ripped off by greedy venues or promoters. We all know that iconic scene in the Blues Brothers where the band goes to get paid and the bar tells them that their drink tab was more than their pay. Of course, they were outnumbered by crazy rednecks and ended up fleeing for their lives with no money to show for a long night of babysitting rowdy drunks. But that was a Hollywood movie. So, what happens in real life? 

My friend told me about one of his experiences at a gig in Austin, where at the end of the night the venue didn't want to pay. So, they casually went and grabbed their tool kit from the van. While the manager was distracted, they proceeded to remove the front doors from the place. Then, like a boss, he said, "If you want your doors back, you'll have to pay us." Now, that certainly might be an effective method, but I definitely don't recommend it because it might be interpreted as extortion... It makes for a good story though. 

But seriously, what can you do? You play the gig. You fulfill your obligation to the venue, and the price was already agreed upon. Then the time comes to get paid, and the promoter doesn't want to pony up. "It was slow tonight... You didn't bring enough people," he says. Or my favorite, "Can I pay you in sandwiches instead?" Well, let me just call my landlord and ask him if I can pay rent in sandwiches this month. 

Listen, unless it was agreed upon beforehand that I would have to bring a certain amount of people in order to get paid, that's irrelevant. 

A deal is a deal. Whether it is in writing or merely spoken, as long as a contract is definite in the necessary terms, has been communicated clearly, and is accepted by both parties, it is a legally enforceable contract. You don't have to be a licensed booking agent to have an enforceable contract with someone. You don't have to be a lawyer either. Anyone can make a legally enforceable contract. Once a contract is accepted, it cannot be changed. In other words, if we agree on a price and I perform my end of the bargain, show me the money! On a side note, if a person is not a licensed talent agent (someone who books multiple artists) they are acting illegally, and no contract made by them is enforceable. You can't legally contract to do something illegal.

That said, I have to let you know that I am not a lawyer. I'm just a musician and this not legal advice nor should be interpreted or construed as such in any way. I'm just putting a few things out there that I've learned over the years playing gigs and doing the research. If you ever run into trouble, you should always consult an experienced lawyer, and make sure that you get the most accurate and up to date information possible. 

Now, my explanation before of a legal contract was the most basic and generic explanation that you can possibly get, so here's a few more details to always consider just to cover your ass.

First and foremost, always write it down! Even though oral contracts can be enforced, they are much harder to prove. So, get the deal in an email or on a facebook thread, both mediums are recognized as legit written communications by a court. You will have proof to show the original terms of the gig. If you can't get an email, have them text you the specific price, location, date, time slot and what sound equipment you need to provide. These are the essential items that you need to have written down. 

As an exception, it doesn't have to be a specific amount of money explicitly stated in the deal. As long as there is a set method of determining that specific number when the time for payment comes. For example: If the promoter agrees to give you $5 per person, that is specific enough. The problem will be with the official head count. Ask for the official print out of ticket sales. Take pictures of the crowds at the show. Ask the door guy how many people showed up. Its always better to be prepared, and if you have some real evidence to prove that the number was not met then you might be able to argue for the difference if you feel like you got ripped off.

Once you have a gig offer in writing from a venue that you have confirmed, you essentially have what constitutes an "offer to make a unilateral contract." A unilateral contract can only be accepted upon the requested performance in the contract, i.e. you showing up at that location on that day and rocking out for that period of time. After you have completed that performance, the venue becomes legally obligated to pay you the money that they promised. 

However, they can withdraw the contract prior to your completion of the full performance because technically, a unilateral contract is not accepted until after the performance is completed. You may be able to collect something on partial performance like the costs incurred by agreeing to the gig and as a result turning away other opportunities as well as cost of gas for driving there or something, but that is a bit more complicated situation. You definitely would want a lawyer to go any further there. 

Another side note, if you don't negotiate for free booze then there is no such thing! Sorry Booze Brothers, don't drink up your paycheck!

Of course, all of this stuff depends on how much trouble it's worth to you to get that $200 or whatever the gig was supposed to pay in the first place. A common misnomer is that the money needs to be a certain amount for a court to acknowledge it. But this isn't true. You can file a claim for breach of contract in small claims court no matter what the amount of money in dispute. The smaller the amount the less likely you will want to go through all the trouble though. 

You can check out the fee schedule for the court in the county where the venue is located and see how much filing fees are. Then call an entertainment lawyer and take those bitches to the house because you may have a number of other claims besides just the breach of contract. That might enable you to really stick it to them if you want to and that would make it more worth the trouble. But you must have solid evidence to back up your claim of an agreement, and that is why you always cover your ass in the first place.

So, we all know that we can sue each other for basically anything right? What else is new?

I hear the phrase "Theft of Services" a lot from musicians who claim that you can call the police if you don't get paid at the end of a gig. This is another common misnomer. As far as I understand, "Theft of services" is a statutory crime that really doesn't exist in Florida. "Theft of services" is considered a civil dispute that must be settled in a civil court. The only remedies of the law would be the ones I discussed earlier, meaning you would have to sue to get anything and there would be no involving the police because it is not a crime to refuse to pay someone for services.  

However, as I was looking at the Florida theft statutes, I came across §812.155, which states,

"Whoever, with intent to defraud the owner or any person lawfully possessing any personal property or equipment of the rental thereof, hires or leases said personal property or equipment from such owner or such owner's agents or any person in lawful possession thereof shall, upon conviction, be guilty of a misdemeanor."

It goes on to say that if the value of the property is over $300, then it is a third degree felony. 

So, how does this apply? Well, I would argue that in situations where you are bringing out your own PA equipment, (typically thousands of dollars worth of stuff that a venue needs in order to have a night of music) for all intents and purposes, that constitutes "renting" of said equipment from you for the night. If you can prove that they defrauded you into renting it to them, that is, they never had any intention of paying you and tricked you in order to gain access to your personal property, then you may have a criminal charge against them. In which case, you could call the police, and potentially have them arrested. 

Now, I'm not a lawyer, and I don't know the odds of success on such a claim. I searched the database of court opinions and couldn't come up with a specific case in which this was argued in the scenario that I'm describing, but it's worth a shot if you are in a difficult situation. 

So, next time you are arguing with a venue owner or a promoter over your pay, and you can back up your agreement with evidence, tell them you will sue them in small claims court. Then, when it gets serious, inform them of FL Statute §812.155, the crime of "defrauding an owner of personal property." Threaten to call the police, and do so if you have to, but make sure you are in a mental condition capable of talking to a police officer, i.e. don't be a drunk ass. 

They will cough up the money. Take it, and don't ever do business with those cheap bastards again.