Open to negotiation: A self-employed musicians’ guide to contract negotiation

This article was originally published in our Spring 2024 issue. Click here to subscribe to our quarterly print magazine and be the first to read our Summer issue features.

Contracting can seem like a terrifying prospect. No class at music college can ever really prepare you for combing through something that reads like an 18-page life insurance policy document as you pray that you’re not accidentally agreeing to forfeit all rights to your soul.

The reality is that a contract is simply a mutual agreement between two parties. The person hiring you needs to ensure that you will turn up and do the job, and in return you need clarification of their expectations and legal protection against non-payment. A fair contract protects you as much as it protects the other party. There needn’t be any obfuscation and you should never be pressured into signing something without fully understanding it.

With the wealth of information available online from professional organisations such as the Musicians’ Union (MU) and the Independent Society of Musicians (ISM) it’s not too difficult to know what a contract should look like in theory. Making it happen in practice, though, can seem a tough nut to crack. Just how do you approach the task of negotiating?

One of the most important things is to avoid verbal agreements and get everything in writing. Verbal contracts are extremely difficult to enforce should disagreements occur further down the line. It is simplest to communicate by email if at all possible. That way not only do you have an ongoing record, you can also pause to consider your responses. If you are dealing with someone who prefers phone calls, always make detailed notes during and after the call. If they call you at a time when you’re not able to access your notes, make an excuse to call them back later when you’ve had a chance to review everything and prepare for the conversation. The phrase, ‘I’m just about to go into a meeting’ can always be employed – even if you are, in fact, at home in your pyjamas.

Hopefully, after a few friendly phone calls and emails to flesh out the bulk of your agreement, you should be ready to send a contract. The MU and ISM both have standard contracts for various types of engagements available to download. These contracts are well established and protect the rights of both parties. For recording sessions that fall under the BPI or PACT agreements you should also ensure that both you and the commissioning body sign the relevant session agreements.

If you are drawing up a contract or adding clauses yourself, it’s a good idea to get legal advice, which both the ISM and the MU provide for their members. The law does not always follow standard logic or morals so you cannot necessarily rely on common sense alone. A good example of this is the practice of imposing cancellation fees for live events. It’s pretty common for musicians to ask for a deposit and to lay out a sliding scale of liability for a proportion of the balance depending on when the cancellation occurs. Although on the face of it this seems fair, the MU warns that cancellation fees can be regarded in law as a ‘penalty’ rather than a fee, and therefore unenforceable.

Changes to contracts can be agreed with the mutual consent of both parties. As an example, contracts for live engagements usually state that it’s forbidden to make any audio or visual recordings. However, if you are playing at a private event such as a wedding, it’s reasonable that the client can expect to be able to film it. Therefore, it makes sense to adapt this clause to allow for recordings to be made for personal use only.

Assuming that your terms are reasonable, it’s unlikely you will experience any pushback from the other party, but what happens if you do? Stakes can feel high and the temptation to agree to less than favourable terms can be strong. On most occasions, politely explaining your position will do the trick. If they do seem to be playing hardball, take heart from the fact that it’s in their interests to come to an agreement with you. Do not sign anything you’re unsure of, and don’t be afraid of asking questions or raising queries.

Finally, how to take legal action if the other party violates the terms of a contract? In the case of a simple issue of nonpayment, a letter from a solicitor often does the trick. More complex issues may require further legal action. Legal fees can rack up to a horrifying figure, but should be covered by your ISM or MU membership. It really does pay to be a member of a professional body if you are dealing with contracts.

Andy Farquharson is a contractor for The Music Agency, providing musicians for a wide range of promoters and ensembles in multiple contexts. ‘The main thing is getting all the information because sometimes promoters don’t work with orchestras all the time,’ he says, ‘Quite often, there’s a bit of hand-holding from my side. Sometimes they’ll say they want a 40-piece orchestra, but they don’t actually say what the instrumentation is. You’re steering and guiding things, gathering all the information that you know the musicians will need to be able to make an informed decision as to whether they take the work on or not.

‘I try to cover most of the points at the beginning, managing expectations about what musicians are capable of doing physically as well as logistically. When I’m putting costings together, it’ll say, “This is based on two three-hour sessions per day and a 20-minute break per session, and it’s based on this orchestration,” so all of that’s outlined fairly early on. It’s very rare that they would chuck something in lastminute on a contract without you knowing.

‘If there’s something in there that I’m not comfortable with or isn’t the norm, then I would obviously have to go back to them and manage it out. Sometimes it’s just that they haven’t understood the way that musicians work, or that to film for promo stuff is fine as long as it’s a certain length of clip and not for commercial use and so on. Sometimes there are queries but normally they get worked through.

‘When I offer work, I always make sure that the fee is listed in that email to the musicians. Sometimes it is TBC, but ultimately when there’s a firm offer, they get a fee offered. I think if musicians get offered work, they should always be able to ask what the fee is. If you ever get offers of work and there’s stuff you need to know, or if you’re not sure of anything, then always ask the fixer before you take it on. Similarly, if there’s a patch of work and it doesn’t say that it’s tied, then always ask if the dates are tied or not. It might be that the fixer can make it work for you to do some dates and not others.

‘There have been cases in the past where further down the line after signing a contract a musician has then queried the fee, but they’ve already signed the contract and it’s already in place and they’ve accepted it. Always ask, I suppose, would be the bottom line. The only stupid question is the question that’s never asked.

‘Sometimes there can be a problem with musicians pulling out, just saying, “I can’t do that work anymore,” even though they’re under contract. You need to go about it in the right way. Fixers are human; we get that people need to pay their bills and things like that, so I always try to release people when I can. Communication is key. I always try to keep people as up to date as I can with stuff and ask that the musicians do the same for me, to let me know if they need to change anything.

‘A fixer is putting a lot of trust in people to go out and do a great job for them. If a musician didn’t show up to a gig I would technically be in breach of contract. You’re contracted to provide the service and provide a number of musicians, so if someone lets you down it comes back on you personally, which can be tough. However, depending on the circumstances of the client and the relationship I’ve got with them, there might be a bit of flexibility and understanding there. It’s all just about how relationships are managed between the promoter and the fixer, as well as between the fixer and the musician.’