Up until now we've been concerned about getting the gig. But, what happens if either you or the promoter has to cancel the date? The first item of business is to make sure you have a good cancellation clause in your contract.
Let's establish some basics. The first one, and most important, is that you have an entertainment lawyer help you create your performance contract or at least review it for proper inclusion of clauses pertinent to the state from which you operate. Each state may have specific legal items that you need to be aware of and an entertainment lawyer licensed to practice in your state will be able to inform you knowledgeably. Second, I am not a lawyer. I have had all of my contracts reviewed by lawyers while I booked my acts and those I offer in my book have been reviewed by a number of entertainment lawyers. With that established, I want to discuss cancellation clauses because they are an important tool to help protect yourself when special circumstances come up for you or the promoter.
I have always included a cancellation clause in my contracts detailing under what circumstances my artist may cancel their contract to perform. I also include a clause describing the penalties should the promoter cancel the contract.
We are not discussing cancellation due to acts of God, such as disasters, accidents, death, sickness, Union strikes, etc. Those are covered in another clause called a Force Majeure. Here, we are concerned with cancellation for reasons other than those above.
The artist's reasons for canceling fall into the category of career advancement. The promoter's reasons for canceling fall into the category of insufficient funds. As we examine each, think back to times when you might have faced similar situations and had you included a comprehensive cancellation clause in your contract, things might have worked out differently.
Artist Career Advancement:
It is important to understand you must use this clause with integrity, honesty and a sense of concern for the promoter's situation while being true to the career opportunities presented to you. Your integrity in the business will be questioned if you begin to use your cancellation clause to cancel one date and accept another on a regular basis, just because the new gig pays a little better. That is not the way to use this clause. The following examples should provide you with some understanding.
1. Support act for a tour – You have the good fortune to land a slot as a support act for a major artist or at least an artist whose reputation is much larger than your own. This opportunity is rare and has potential to provide you with a career boost to a new level in your market. Any club booker or promoter understands this and they also realize that a tour like that may increase demand for your act making you more valuable to them at a later date. When you approach the promoter about canceling, offer the promoter a future date. In order to sweeten the pot, perhaps offer it at the same guarantee, but increase the percentage or the ticket price. After your support tour, having a better ticket price and / or higher percentage will hopefully pay off for both of you. The biggest inconvenience about opening for an entire tour is that you will have to cancel more than one date if you have many dates booked into the future. Here, it is important to weigh the benefits of doing the support tour against the tour that you have booked already. If you have really good dates booked, with good fees, in areas you normally do very well, make sure the tour you will be supporting really does have potential to make a difference in your future career.
2. Major media broadcast opportunity – There are many syndicated radio shows, cable and network television shows and films that could help create national or international recognition for your act. Most of these shows schedule their guests far enough in advance. Canceling a date to perform on one of these media opportunities will leave the promoter with enough time to find someone to fill your date without too much trouble. Again, the media promotion may cause a greater demand for your act, benefiting both you and the promoter in the future.
3. One time opening act for a major artist – Consider this carefully and again weigh the benefits of doing this date over the one you have to cancel. How much of a career boost might this make? Will canceling your date really be worth this one-time shot at the major artist's audience? Think of ways you can use this opportunity to make it worthwhile and worthy of the trouble of canceling.
Most promoters and club bookers have faced these situations many times. My experience has been given given notice, they are happy for the act and accommodate the situation. In order to make the necessity to cancel go as smoothly as possible, I'll offer you the following clause to use or manipulate as your situation requires or your lawyer deems necessary.
Purchaser agrees that Artist shall have the right to cancel this engagement without liability upon written notice to Purchaser no later than (30) days prior to the date of performance, in the event Artist is called upon to render their services for a radio or television appearance , motion picture, or any career advancing opportunity. Artist will attempt to reschedule the date with the Purchaser for a mutually convenient time.
Thirty days is a standard number of days to use. You may increase the number of days or decrease it as you see fit or as your situation dictates. Thirty days offers the promoter time to find another act and do proper promotion. Many promoters will sign the contract leaving this clause as is. Some may cross it out completely or change the number of days. Be prepared for those discussions. I have only had to call the clause into play a few times during my 20 years as a booking agent, but thank goodness it was in my contract when I needed it.
Promoter Insufficient Funds:
The promoter or club owner may, at times find it necessary to cancel. Situations they may face are as follows.
1. Poor ticket sales – Most promoters don't cancel a show for this reason, although if a promoter is inexperienced or hasn't planned for backup funds properly, they may cancel. I've known festival promoters to cancel an entire festival when early ticket sales were below expectations based on the previous year sales.
2. Lack of sponsorship funding – When a promoter plans an event and expected sponsorship doesn't come through or a major sponsor pulls their support unexpectedly, the promoter may cancel.
3. Denial of grant funding – In the non-profit world, many performing art centers and government agencies are dependent upon grants in order to run the programming. These promoters usually write specific clauses into their contracts protecting themselves against liability in case their funding is denied.
Protecting yourself in these situations is a matter of planning and forethought. You need to include the following clause or something similar in your contracts for just such an occasion.
Should Purchaser have cause to cancel this Agreement, notice must be given to Artist in writing no later than thirty (30) days prior to this engagement. Any notice given less than thirty (30) days will require full payment by Purchaser to Artist as described in Contract paragraph (insert the paragraph # 's describing your compensation), unless Artist agrees to waive any part of that payment or Purchaser and Artist agree to reschedule the engagement for another mutually convenient time.
There certainly are other possible ways to write this clause and a check with your lawyer is advisable. I've known many artists who were faced with a cancellation and had no recourse. They were due none of the contracted fee because they did not include any form of cancellation clause in their contract. Discuss this with your lawyer and your group and be prepared for the varieties of situations that often do arise. It's smart business and even smarter planning.