Dear Listers,

Here is the compilation of comments regarding contracts with outside
musicians. It is quite extensive as there were many responses. Thank you
to all the people who did respond with such helpful suggestions. You are a
truly marvelous group!

Just as a refresher here is my original posting:

> Dear Colleagues,
>
> I am wondering if you could give me a little advice on a difficult subject.
>
> If you arranged to hire some musicians or a musician for a job and then had
> to cancel the job and gave the musician(s) a little more than one month's
> notice of the cancellation do you think that the musician(s) is entitled to
> a cancellation fee even if none was ever mentioned in the original
> negotiation? Essentially, what I want to know is; do you know of any common
> practice in the music industry of paying cancellation fees? If so, would it
> be understood that a cancellation fee was owed even if none was ever
> mentioned either written or verbal? For further clarification; this was not
> a union job but a privately negotiated job.
>
> Please respond privately and I will compile the responses to the list if
> there is an interest in this.


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I have run into this sort of thing before too. As far as I know, unless you
had a written agreement specifying a cancellation fee, you are not liable to
pay
one. I almost got stung on a similar deal and so I have always insisted
since
that time that all agreements made with outside musicians be in writing and
that
there be a "no pay for cancellation" clause in the agreement. It's a CYA
manouver, but one that is worth the effort. Good luck.

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I hire both union and non-union players regularly. There is no obligation
for a cancellation payment unless stated in the original agreement (verbal
or written). Without taking the time to look at my own union book, I'm
also pretty certain that a one-month cancellation is way ample for even a
union job.

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The reason you're in questionable territory is, as in so many choral
situations, there wasn't a force majeure or time-for-notice stipulation in
your contracts or negotiations. This kind of possibility is covered more
often in per service orchestra contracts where players in scheduled
engagements are subject to being paid unless notified no later than a
certain date before the engagement. In one orchestra where I worked as
assistant manager, a concert could be cancelled no later than two weeks
before starting date. In orchestras, at least, I believe that approach is
quite common.

So, if this wasn't even discussed in your case, I think your musicians are
not ENTITLED to compensation; they are not OWED the fee. They have has much
burden as you to show that a fee was promised or unjustly denied. However,
I get the feeling that your wisest course, for rather obvious reasons, may
involve coming to some agreement on a token payment, especially if they are
making grumbling noises about it all. And, after this is over, cover these
things in future negotiations so that there can be no misunderstanding, and
never, ever back down from that position.

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I don't claim to be any type of attorney, but there are a few key points
that you mentioned that should work for you. First and foremost, this was
not a union gig. Therefore, in my opinion, the musicians were responsible
for any fine print type legal stuff that they would want in their contracts.
When I do a gig as a soloist (non union of course) I include my own contract
that covers extra music, cancellation, etc. The other key thing is the
amount of time. One month is plenty of time for notice of cancellation.
If these are really high caliber players they should have no problem finding
another gig.

The flipside of all of this is whether or not you want to have the option of
hiring these players in the future. Possibly a 25% fee could be negotiated
as a courtesy to keep everyone on good terms. You don't want to get taken
to the cleaners or set a bad precedent, but if these are your best players
you may not want to burn that bridge. I'd be curious to see how this comes
out. I hope not to see you on Judge Wapner or anything!

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hmm.... sounds nasty. A month seems plenty reasonable notice. No
cancellation fee unless previously agreed upon.
Now you know to put it in the contract (or not).

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NO!!! A month is more than enough time for them to make other arrangements,
but the basic issue is that it was never mentioned up front and was not part
of the original agreement. Professionals don't change agreements
mid-stream,
unless there are unforseen circumstances and both parties agree to the
change.

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I ran into a similar situation a couple of years ago. I prepared a community
chorus for a performance of Mozart's Requiem, but asked the chorus to
replace me when shoulder surgery became necessary. The chorus decided to
postpone the performance rather than replace me. This was 3 months prior to
the concerts.

I contacted the orchestra contractor and told her to "cancel" the orchestra,
but that we would reschedule and give those persons first refusal. I went
ahead and paid the contractor's fee (she had already done the work), plus
the fee she would have earned by playing the concert (it is important to
keep her happy in a small community where good players are a premium).

Needless to say, tempers flared, letters were written, angry phone were
made, etc. There's no way around that, I'm afraid.

To answer your question, most standard "union" contracts have the 1 month
grace period where no cancellation fee is required. Since this was privately
contracted (assuming that some kind of written contract was issued), my
limited knowledge of the law yields to what is "common practice," in other
words, what would be issued in a union contract. Therefore, no cancellation
fee is needed.

If the contract is only verbal, the implication of a written contract is
still there.

There are some differences in the law between for-profit and not-for-profit
organizations. You should check with some legal counsel about this.

The other side of the situation is to recognize whether or not your
reputation, or that of your organization, may be irreparably harmed by not
making some token payment to the contractor, as well as "mea maxima culpa"
letters to the orchestra.

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I'm not a musician, but I've done a great deal of hiring and firing of
artists of various kinds, mainly in Australia and UK. Unless there was
written agreement on the matter of cancellation, then with a full
month's notice there would be no expectation of cancellation fee UNLESS
special purchases had been made with the booking in mind, etc.

In many instances, full fee would be payable if there was 72 hours or
less notice.

Dependant on your relationship with the parties concerned, you may feel
like making an ex gratia./without prejudice payment of a portion of the
agreed fee, but this would be a 'grace and favour' thing rather than an
obligation. In any case, a round table face-to-face discussion with all
parties tends to leave better feeling all round, and leaves the way
clear to work together in the future.

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I think a lot depends on where this concert was to have been. Are you in an
area with lots of musicians available for gigs, or are there only a few?
Absent a union contract or a written agreement, you are probably not
obligated legally to pay. However, if you want these musicians to work for
you again, you might consider at least a token cancellation fee. Even if
they refuse it, you have made a good-faith gesture.

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I've hired pit orchestras for over 60 shows and classical orchs for church.
In our area - North, South Carolina, no such practice exists. No such thing
could be required without a formal written contract containing a clause
allowing it.

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I had a similar problem once. You didn't say whether the musicians already
had the music. In our case they had the music well in advance, so we gave
them each a twenty percent cancellation fee- it seemed to us that they'd
probably spent a fair amount of time practicing already so we wanted to
compensate for that time.

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No cancellation fee would be paid by me no matter how much they sqwauk

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This is unheard of in any of my experience. Sounds like you didn't have a
written contract, or perhaps you sent them a letter confirming arrangements.
I'd refuse to pay and never hire the person(s) again. Perhaps in major
metropolitan areas like NYC this might be done with unions, but nowhere else
I know. If a player stipulates up front that they need a cancellation fee
then bully for them, but it ain't the norm, particularly with a month in
advance. Maybe you could put in your contract that you'll charge them ten
dollars for every wrong note!

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In my estimation, if the players are used to signing contracts, and
there is no cancellation clause in the document, you are not obligated
to pay them--and they know it. The fact that you gave them a month
notice is also in your favor.

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The "musicians' union" usually has a length of time for cancellations,
after whcih you have to pay. I think it's one month, but it may
differ from area to area. If people have turned down other work of
course it's hard to offer no cancellation fee, but that's one of those
things. Do you have a local chapter you can check with? 30 days
seems right to me for any schedule changes, including cancellation, so
I think you are okay.

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P&L Flahive wrote:
>
> Essentially, what I want to know is; do you know of any common
> practice in the music industry of paying cancellation fees? If so, would it
> be understood that a cancellation fee was owed even if none was ever
> mentioned either written or verbal?

Patrick,

This depends first on if there is a written contract. If no written
contract, then you will have to look to your state's labor laws re
verbal contracts, rather than common practice nationwide. If your and
the musicians failed to execute a written agreement, then it should be a
lesson for both sides.

> For further clarification; this was not
> a union job but a privately negotiated job.

Well, there's a big part of your problem. Union contracts should spell
out that kind of thing. Also, you didn't say if it was union musicians
you hired without a written union contract. That should also be a
lesson for both sides!

As for what is "common practice"--you're going to have to ask your AFM
local!

If your booked engagement prevented the musicians from taking another
job they had been offered and would otherwise have taken, they are
certainly going to be *unhappy* with the cancellation, even if it was a
over month in advance, if there is nothing to compensate them for the
lost engagement and income.

Next time, have a written contract which include cancellation terms
(even if it is to say there is no compnsation for cancellation) rather
than leave the subject tacit.

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I work at a community music school in Philadelphia and in my office we
contract musicians to play at functions. Although you may not have a clause
in the contract pertaining specifically to a cancellation fee, it is usually
standard to do so. Keep in mind that although you gave the musicians a
months advance notice, many musicians book gigs several months in advance.
These musicians may have had to give up other jobs in order to keep their
commitment to you. It is only fair and right to give them some
compensation.
Obviously this won't equal the full amount, but something that shows that
you respect their time. If you decide to not pay them a cancellation fee, I
would plan on NOT being able to hire those musicians again.

That's just my two cents on the matter...

One more thought: remember also that they have a contract in their hands
that is promising them work and now you are taking that work away. Whether
or not you have anything about cancellation in the contract, you still have
a
binding agreement to give them work.

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What kind of contract did you use? Written or verbal? Was cancellation
considered in the contract? If a written contract does not contain
cancellation provisions, then it is an ill-considered document. If disputes
arise, I suggest mediation rather than litigation. Get together with the
aggrieved musicians and some mutually argeeable third party, in particular,
someone skilled in the realm of mediation, and work out the differences.
you may have to pay a little, simply because you had not thought ahead about
cancellation provisions. The musicians may have to yield a little, because
they entered into the contract and thought about cancellation later on,
after the deal was signed.
A conctract should include cancellation provisions. The contract may be
cancelled by mutual agreement of both parties within a specified lenght of
time. If either party cancels after that date, then specific amounts or
precentages of compensation need to be clearly stated. And, of course,
provision must be made for "acts of God" (dreadful expression) --
involuntary circumstances which neither party can control -- fire, storm,
vehicle breakdown, illness, and the like. Check in with an attorney about a
standard way of working out such a contract. You need a common-sense,
simply understood agreement, not a multi-page tome.
Work for mediation, not litigation, in case of disputes.

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Patrick, tough and touchy subject. Orchestral players often turn down
contracts to play for a particular event, and if that even is cancelled it
may leave them without a paying gig for that date. We had to cancel a large
orchestra of 38 players last year about 2 months before the performace. I
paid my contractor his ususal fee for all of his trouble but did not pay any
of the other players. However, I apologised to them profusely and since
most of them had played for me for years they were forgiving although it was
evident they were disappointed. Above all, you want to stay in good
standing with the union for future contracts. You want to be able to depend
on these players at a later date. Hope all goes well.

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It is always understood that if the gig is cancelled
(even far in advance), the performers are paid a
percentage of the original fee (perhaps 50%).

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I would say no cancellation fee is owed, in fact even a union musician would
not be owed a fee unless the cancellation was less than a week before the
performance... still, I would check with your union musicians' local contact
person to see what they say.

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This seems a no-contest situation to me. Is there a written
contract for the musicians' services? If so and it does not
enumerate a cancellation fee, there is none. Also, if the agreement
was a verbal one, there is no agreement to anything but what was
spoken. I assume from what you said that the musicians are
asking for a cancellation fee. They have no legal right to one
unless it was stipulated in whatever original agreement you had
with them. If they are honest in their business dealings, they
already know that. Good luck!

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If nothing was spelled out in the contract, then you don't really OWE them a
cancellation fee.
I don't know how long ago you contracted their services, but a cancellation
fee, however small, recognizes that they have been turning down other jobs
to hold the time for you. Hopefully, one month gives them time to find
another gig. Cancelling a few days before the job would not.

This situation also points up the advantage of using union contracts ...
these questions are spelled out in advance. It may seem like a lot of extra
effort to file union contracts, but in the long run it is certainly worth it
to all concerned. It also helps musicians build up credits for health
insurance and pension benefits through the Musicians Union (which are not
available from one-time employers).

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It may not have been a union job (and we can talk about
that later!), but you might check with the union to see
what their policy is. Use that as a guideline, but then
again, if the players or the contractors don't want to
go through the union, then they are hardly guaranteed the
protection of that union when things go wrong.

(Personally, a month's notice to cancel a gig - unless it's
Easter or Xmas - is plenty of time for the musician to find
other work.)

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Yes, you should at all times use written contracts even if it is friends or
family. I wanted to know the date you originally asked these folks to book
the date.

Legally, you may not have to pay them, however think of it as if it were you
in your line of work. You are asked to put aside time and then it was
canceled when other work would have been available. Now you have no work.
Also, sometimes the courts will honor verbal and email agreements. You
never
know who will take who to small claims these days.

Since this in 4 weeks in advance and usually most musician agreements are
drawn up months before this, there will probably be no work to replace this.

I don't believe you need to pay the whole thing. Obviously the intent of
goodwill on both sides should be honored.

Did they ever get the date right? If not, I would ask that question. Of
all
the years I have contracted, I only had two musicians make this type of
error.

So bottom line, you need to look at intent, when you originally struck up
the
deal as I asked a few times and where you are now to make to correct
decision
for your particular case.

When folks contract musicians through me, I always collect a 50% non
refundable deposit and the balance 30 days prior to the event.

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I wouldn't expect to be paid a cancellation fee if over a month's notice was
given, unless exceptional circumstances obtained (i.e. I had had to refuse
other particularly lucrative gigs in order to honour the first contract).
And certainly, if there was no cancellation fee mentioned in the original
negotiation, then the musician has no claim to one, end of story.

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Thank you again,

Patrick Flahive