IAMA Guidelines for engagements

IAMA: Creating new guidelines for engagements

Atholl Swainston-Harrison, Chief Executive of the International Artist Managers’ Association (IAMA), explains how experiences in the pandemic have informed IAMA’s new guidelines for engagements

Above: Atholl Swainston-Harrison

Read our feature on page 20 to learn about Paul Whittaker and the challenges of being a deaf musician The unwelcome arrival of COVID-19 impacted the music sector for far longer than we could have anticipated. It also brought to a head the fault lines in our fragile music eco-system, as we witnessed contracts being shredded, whether through force majeure or cancellation. We learned that the concept of force majeure does not exist in every country – and how undefined it really is in legal contexts. We have also witnessed some truly wonderful examples of presenter generosity, contrasted with presenters who moved to protect themselves without regard for the artists who were left high and dry. The vulnerability of the artist in such a situation was clear, and so too their artist managers, whose commission income comes after completion of a contract.

Early in the pandemic, the sector gathered to examine the business model that had become somewhat flabby in its over-reliance on simple agreements and erratic income streams. Questions emerged. Would a deposit payment for booking an artist offer more security? What would secure the artist’s contractual position? The nub of the problem is risk. While we all agree it is a shared risk in theory, in practice the current model does not support this.

The core discussion areas were an improved model of business, along with all the other pitfalls in the timeline up to a performance. And questions such as would use of deposits stop presenters loading their ‘shopping baskets’, only to toss the pencilled engagements later on; would a deposit make an artist think twice about cancelling an engagement; and what value does the digital world have – and has too much been given away for nothing? – were discussed intensely.

High profile presenter members and experienced artist managers formed a business committee which looked at several scenarios, beginning with the idea of a deposit on booking an artist. While this sounded like a good idea at first, artist managements pushed back after realising they might become bankers in some situations – holding onto money that they could not commission. Clearly there will always be cases whereby an advance on fees would be reasonable and acceptable depending on the circumstances of the presenter. Some countries have legal frameworks that prevent any form of payment until the ‘service’ has been delivered and that includes expenses which the artist covers until the contract is complete.

The ‘flabbiness’ referred to earlier often arises from a lack of timely communication, for example: the artist might be presented with unexpected media plans at the last minute or contracts arriving so late that it is almost impossible to do anything about querying them. Both presenter and artist manager must do more to discuss scenarios and details, and if one cannot offer enough information, there should be an acknowledgement of what areas remain unclear.

Given that our members are spread around the world, it is evident that it is challenging to address some of the inconsistencies and give both artist manager and presenter confidence in approaching a negotiation. It is hoped that the following approved IAMA guidelines outline a useful set of values and practical considerations that will help that process and secure a better future for the artist. The document has also been adopted by our sister association, the Association Européenne des Agents Artistiques (AEAA).

Guidelines for engagements

The COVID-19 pandemic has created a global shockwave, with artists and the whole music business ecosystem severely affected. The mass postponement and cancellation of performances has necessitated a review of how we do business, with the result that the IAMA community has come together to debate a better and more robust framework for the future.

We recognise that:

1. The central focus in our business should be on the recovery of music life and fostering fairness and sustainable values throughout the sector. Rebuilding trust is one of our crucial tasks.

2. Shared targets should include improved security in each party’s commitment to an engagement; clarity in the terms of engagement; transparency and fair cancellation policies within the post-

COVID environment.

3. A range of businesses/organisations of varying size and legal structures make it impossible to set any single set of binding rules. Therefore, a set of guidelines is set out for consideration in each negotiation.

Checklist of options:

1. How to clarify and secure in advance a mutual commitment to the engagement? Even when a full contract is not yet possible to draft, a written confirmation of basic terms should bring clarity. Many contracts are drafted very late, contributing to insecurity. This could be addressed by a policy of sending a booking confirmation or a concise Heads of Terms (HoT) document, made as soon as basic terms (date, repertoire, fee) are agreed. This should be a short, concise document or written confirmation of the booking, leading to a more detailed contract to be signed later in the process. Parties should endeavour to be clear in their positions by the time the season is published, irrespective of the contract delivery date. 2. Media exploitation Media exploitation has emerged strongly over the course of 2020/21, with the result that there is a new reality to discuss in many scenarios. Sometimes media plans are late in the planning so it is essential that the option is discussed at the earliest opportunity and not overlooked as a secondary concern. This includes a transparency on any exclusive media deals that may compromise the contract.

3. Are the cancellation terms clear? A thorough and open discussion of cancellation terms is strongly recommended. Recent history has revealed the legal and mutual understanding of force majeure/ frustration of contract/ circumstance exceptionele to be inadequate and it is an area likely to present difficulties in the future. Cancellation terms, however, are within the scope of the contracting party’s control and therefore should be thoroughly discussed. The cancellation terms agreed may be suitable for inclusion in an HoT.

4. Covering the artist’s expenses in case of cancellation How are the costs already accumulated by the artist to be refunded, if the presenter needs to cancel the agreed event? This also may be suitable for inclusion in an HoT.

5. Would a separate fee guarantee and/or cancellation compensation be applicable? Once a booking is confirmed, it should be recognised that the artist is making a commitment to be available and to prepare for the engagement. Advance payments are an option but may cause complexities and can be difficult to handle, but case by case there may be grounds for agreeing a non-recoupable advance. In the case of cancellation by the presenter an agreed compensation formula could be more straightforward to establish up front. 6. A clear postponement policy Agreement on a postponement policy whereby an alternative period/engagement date is envisaged within a reasonable time – ideally not more than two seasons following the postponed event, but this may be case specific. In such a situation, it could be reasonable that part of the engagement fee is paid at the original time of the engagement, as a non-recoupable advance on the full fee, the balance of which is paid when the engagement actually takes place. It might be that the postponed engagement is subject to a new contract too.

7. Preparation fees in advance There might be a case for a ‘preparation fee’ – an advance payment when work is clearly being undertaken such as in the case for music directors, chief conductors, artists-in-residence, opera directors or a new commission. This ‘preparation fee’ might be part of the whole negotiated fee.

8. Heads of Terms Members have often asked IAMA for a standard artist contract but this is of course impossible given the very wide range of demands artists and presenters have on an international scale – and made more difficult as artist managers do not act as principals. Similarly, a standard HoT, although tricky in some legal systems, cannot be boilerplate wording, but if required, needs to be a basic confirmation note between artist/ artist manager and presenter. If there are outstanding issues at the point of agreement before the contract arrives, those points should be stated in writing to be dealt with at a later stage rather than left unattended until too late. If this is done, there will be fewer surprises and greater awareness that risk is a mutual concern for all involved. iamaworld.com