Crowdsurfer at Neurotic Deathfest, by Susanne A. Maathuis
With the recent drama surrounding HRH bookings, Hammerfest, and HRH Vikings in the UK, it has once again become very clear what a vulnerable position bands are in the live scene. With rumours of bands allegedly not getting paid, contracts being broken, and extra costs thrust on bands set to perform, as well as them refusing refunds for ticket holders even during covid in 2020, it is clear this is a very bad situation.
But it isn’t the first time we have seen this happen, where we saw a similar situation about bands allegedly not being paid both with Temples fest as it disintegrated, and Blastfest in Norway in 2017, and even a big festival tour like Australian Soundwave eventually folded under not paying out bands in 2016. It appears not getting paid after the fact is a real risk still for bands on the road, and because of this we at Ghost Cult Magazine felt it was wise to do a rundown of what to do as a band to protect yourself while touring and how to go about getting paid when the promoter runs with the money.
As always the best treatment is prevention or at least building a solid position of evidence from day one. Always ask for a contract, which covers all details discussed and agreed upon. If you can’t get this, or have an oral agreement, make sure to follow up on key points like the amount of fee and the reimbursements or costs the band is making in an email. Written proof of agreement is always much stronger. It is also an option to record oral meetings or calls, though in some areas you may have to inform the other party (in California there is dual consent required). Publishing such recordings may not be allowed under privacy laws, but they can be used as evidence in a court case. Tell the opposing party you wish to record the conversation so you can listen back to it and write down the important agreements afterwards, or as a memory aid, or to get the opinion and agreement of your bandmates or label/booking agent.
Now you have your agreement clear and written down, and the worst happens: you play and don’t get paid after. Of course, the wise way would be to require part of your fee upfront to cover the cost of flights and accommodation or travel, but we understand not all bands have this option. If you have agreed to this and do not get this advance in time to cover your costs, don’t go ahead with the show. It sucks to cancel but being left out of pocket can destroy bands, especially smaller ones.
Now what to do when you don’t get paid? Bands are a business, a small independent one maybe, but still a business. What do businesses do when you don’t pay your bill? Right. They send you a notice and then go to collections. Sending a notice with a term to pay by is the first step, often a legal requirement. Mention if they don’t pay, it will go to collections and costs will increase. Usually, a week or two weeks is considered a fair deadline for payment. Date the notice, so the final pay date is clear. Next, you go to collections. Anyone who can show they have a debt to collect can hire a collections agency to collect for them. This is why getting the fee you are owed in writing is so important because then hiring a collection agency is easy. Any costs involved are added to the debt owed, so paid by the debtor. Please vet your collection agency before hiring them, as there are cowboys and scammers in this business as well. Some due diligence and a search for reviews should be enough. Another option is to hire court bailiffs, they often also do private collections and are the most trustworthy option in many cases.
Now, what if even after this a festival or a promoter or booker doesn’t pay up? There are two options.
Many collection agencies also buy debts. You will get less than what you are officially owed but can often get a decent price for what you are owed. The collection agency then owns the debt and can collect it and go to court over it themselves. They assume all the risks at this point, but also pay you for your debt according to risk. If there is a higher risk of it not being collectible, you will get paid less.
The second option is to go to court yourselves. For this, you may have to hire a lawyer, though many of these cases could fall under small claims. Getting legal advice is wise though. Pay special attention to what court has jurisdiction. In international contracts, this is usually decided in the terms. If nothing is decided that means three sorts of law could apply: the law in the country of the event; the law in the country the business or person you are suing is located; or the law in the country the band is from. This is a free choice at this point, though usually suing in the country the business or person you are suing is located makes the step for collection easier. Otherwise, you may win your case but have to apply to the courts in the event country to get an execution order, and actually collect. After such a judgment, the courts help with collections.
Finally what if they just refuse to pay, or let the company/event go bankrupt? Well, this is what we have what’s called a lien for, basically a hold or impounding of property and funds. You have to request a lien at the courts. Sometimes you can even get these as a preventative measure before you present your case if there is reason to suspect the debtor will take action to hide or remove funds from the company if they are notified of being sued. You can put a lien on the property, bank accounts, cars, and equipment. You name it. This holds the assets securely until the case is settled and allows you to recoup on that. For property, it is normal that these get sold or auctioned to satisfy the debt, bank account the balance gets frozen and then transferred. Often though just the pressure of impounding or threatening to sell someone’s car is enough to make them find some funds to pay you.
Bankruptcy is more problematic because in bankruptcy there is often not a lot of money left to collect. Especially not after taxes take their priority cut. Some liens also have priority, usually going from consensual liens (mortgages, or security for a loan) to judgment or collection liens. After all these priorities are finished, all other debtors are considered equal and get an equal percentage of what is left over.
If there was gross mismanagement in a company or things that feel like knowingly trying to scam people, there is an option to pierce the corporate veil as it is called. This means that you can also collect your damages on the personal property of those behind a company. This isn’t an easy thing to prove but it is an option.
All of this sounds very scary, but really isn’t, if you have a good position and did your homework. Get whatever you can in writing with dates on it. I’d also recommend getting the band some legal insurance. Its less expensive than many fear, and it will mean you don’t have to pay the legal bill upfront. Many also offer collections in-house. Finally checking out what resources are available at your label, booking agent or even from cultural organizations. Unions or PRO’s can also at times have legal representation available. Being prepared is half the battle.
One of the reasons bands don’t chase up such problems is a fear of getting blacklisted or a reputation for being difficult. This is why it’s important to give enough chances to remedy the situation, but not to the point you as a band are taking all the risks. In general, though, most people will be on your side about getting the pay you were promised. Talk to other bands on the same bill as well, because solidarity between acts, especially from the larger established acts, can give you a lot of leverage. Ideally of course bands would never be put in this position, but it’s clear that this is a risk, and knowing what to do will help you out a lot. And don’t be afraid to hire help. As a scene, we must stop tolerating the grifters.
WRITTEN BY SUSANNE MAATHUIS, LLB.