After a number of seasons as a chorister for the Washington Opera, I decided to strike out as a solo artist.
As a fledgling solo artist, I arranged all my auditions and engagements on my own. Within several years, I had successfully performed a number of major roles with most of the smaller companies in my geographic area. I had the beginnings of a “track record”—but I was approaching the limits of what I could achieve under my own management, and I was spending time in self-representation I could have better devoted to artistic matters.
Then one day, during the course of a vocal session, my voice teacher mentioned that she had recently spoken with an agent friend in New York who was looking for an individual of my voice type to add to his roster of singers. He headed a small startup agency that seemed perfect for an entry-level artist like me.
At my urging and with my teacher’s recommendation, I arranged to sing for this agent in New York City. He liked what he heard and asked me to return to New York
City later to negotiate an artistic management contract.
Since I had never entered into an artistic management contract, before returning to New York City I did some homework. I called all my friends and colleagues, including some who had previously been under artist management, for general advice on any industry standards, and specific advice on what information and clauses should be included in an artistic management contract. I was appalled at the lack of knowledge on this subject from virtually every person I spoke to. The only thing of value I heard was that most artists paid commissions of 10 percent for opera and 20 percent for concerts. Beyond this, I was largely on my own.
The best advice I could get from other colleagues was: “Don’t sign anything dumb.”
This placed me in a difficult position: I had no idea if there were any customary industry practices or “standard” artist management contracts. I felt at a distinct disadvantage in my forthcoming negotiation. Ultimately, I was forced to use my own best judgment and limited experience to guess at what should be in the contract. I could find no person or place to go for impartial information, because no repository or reliable source of industry standards and practice even existed.
Fortunately, my first agent was an honest person who answered all my questions thoroughly and proposed a very fair and equitable contract. I took a day to read and understand the contract thoroughly before signing it. In retrospect, both my agent and I benefited from this negotiation process: We gained respect for each other and started to learn how best to communicate with each other. We continued this communication during our association, which was both personally and professionally rewarding. He was an honest agent whose integrity was beyond reproach.
This same scenario—a fledgling artist trying to break in to this industry—largely continues to this very day. Young artists—particularly in their first negotiations for artist management or representation—continue to be at a decided disadvantage in their interactions with potential agents or managers.
The Industry
The majority of agents and managers are honest, independent people trying to make a living in a difficult business. These agents and managers attempt to negotiate fair, equitable and mutually satisfying professional relationships with their client artists on an individual basis. But without a professional society or organization to represent the industry and establish industry-wide professional standards, the artist management industry currently doesn’t speak with one voice.
As in every industry, a minority of predatory agents attempts to take undue advantage of naive, inexperienced artists. The extent of the problem in this industry is currently unknown, but the high turnover in some agent rosters does not bode well.
Some fledgling artists, fresh out of music school and with little or no education in the business aspects of their careers, find themselves confronted with a proposed contract from a predatory agent. The agent tells them the contract is a standard contract and that it is OK to sign because “a lawyer wrote it.” Such contracts are usually one-sided, giving maximum advantage to the agent.
Furthermore, an artist has no way to verify any agent’s claim that his or her contract is the “industry standard.” These contracts—some with large retainer fees payable up front—are contrived to ensure that the agent makes money, even if the artist doesn’t.
This is the essence of a bad business arrangement. Artists need to know whether agent proposals are reasonable, or they can’t conduct a negotiation in good faith. On the other hand, “let the buyer beware.” Some unknowledgeable artists actually believe that joining the roster of any agent means all their troubles are over and their path to artistic and financial success is assured. Furthermore, these same artists may be so naive that they sign a contract without reading it or receiving a copy—but it doesn’t take long to become painfully aware of the contract’s provisions, once they receive the first of a number of hefty invoices from their agent, without any accompanying substantiation of expenses or engagements.
It is difficult to help an artist at this stage. The die is already cast, forcing the artist into a reactive mode.
AGMA’s Involvement
A number of AGMA members have expressed concerns about this situation and asked if the union can do something to remedy, or at least improve it. An April 2004 Classical Singer article, “Agents: A Revolution,” discussed these concerns.
The AGMA Board of Governors has a number of alternatives under active consideration. At one end of the spectrum of alternatives: an AGMA-managed system of authorized agents mandated for its membership’s exclusive use, with an expanded system of arbitration. At the other end of the spectrum: a simple reiteration of “caveat emptor” to the membership. Since the extent of the problem of predatory agents in the industry is unknown, it is difficult to identify an appropriate course of action. A system of authorized agents—in which AGMA, in essence, collectively bargains with agents on behalf of its membership—requires much time and effort to implement successfully. That remains an option for the future—but it is possible for AGMA to capitalize now on the efforts made to date, to provide assistance to its membership, and possibly improve the industry itself.
Summary: Code of Professional Standards
On June 16, 2004, the AGMA Board of Governors unanimously approved a motion to prepare an AGMA code of professional standards and best practice governing professional business relationships between agents (a term that includes managers) and AGMA artists. After consultation among appropriate committees and several revisions, on Dec. 15, 2004 the AGMA Board of Governors unanimously approved a motion to adopt and promulgate this AGMA code, governing the relationship between members of the American Guild of Musical Artists and the agents who represent them.
The immediate goal of the code is to establish a set of industry standards and to identify fair and equitable business practices between agents and AGMA artists. The future evolution of the code will be based on feedback from both the AGMA membership and the industry, and will strive to reflect the best interests of both artists and agents.
Since no professional association for agents exists, this voluntary code is the de facto industry standard at this time. Artists (particularly those in their first negotiations with agents) now have written standards from which to conduct their negotiations. They have a basis to challenge an agent who claims that a $10,000 retainer fee is the industry standard. They know that commissions should not be charged on per diems, transportation or housing. They know that even after a contract expires, they are still obligated to pay commissions in a timely manner on all future engagements booked by that agent.
Now artists can avoid problems by identifying specific contractual items that are neither in their best interests nor in the best interests of the industry as a whole.
Another benefit of the code is an educational one. Many artists are largely uneducated in business matters, putting them at a considerable disadvantage in negotiations with an agent. After reading the code, artists are armed with the knowledge to reject a three-year, self-renewing, exclusive artistic management contract that has no financial reporting requirements (and continue their search for a suitable artistic manager). And an artist who reviews the code while being courted by two or more agents can identify and reject the less advantageous offer.
Artists who cannot understand one or more clauses in a proposed contract have the right to insist that it be rewritten before they sign it. A satisfying, mutually beneficial, long-term relationship must be built on the foundation of a fair and equitable business relationship characterized by good communication. The code is a tool for AGMA artists (especially those in a negotiation with their first potential agent) to use for assistance.
I strongly suggest that all new artists confronted with their first artist management contract compare each proposed clause against the code, Discuss with the agent anything that deviates from the code. A good, honest agent will be able to explain any valid reasons to include clauses that differ from those in the code.
The code is not something to be blindly followed, but intelligently applied and tailored to your specific situation. Yes, AGMA cannot enforce a code of standards and conduct as a stand-alone document—but all the provisions of this code that are incorporated as clauses in an agent/artist management contract are fully enforceable under the laws of the state that has jurisdiction.
The majority of agents in the industry are good, honest businesspersons. The same is true of artists. Unfortunately, a small minority seeks to take undue advantage of others. The code is a tool to help AGMA artists identify this minority and avoid problems from the outset.
The Code Itself
AGMA has published the full text of the code on its Web site:
www.musicalartists.org. [Editor’s note: It is also reprinted for you on page 54.]
Here’s a Summary of the Code of Professional Standards and Preferred Business Practices Between Agents/Managers and AGMA Artists
Goal: To attain, achieve and maintain the most exemplary levels of quality, honesty and integrity.
Basic Understandings:
• The agent obligation to the artist is that of a fiduciary, acting in the best interests of each represented artist.
• Strict confidentiality regarding the artist’s personal information.
• A written agreement should identify the respective responsibilities of each party.
• No agreement should exceed three years and cannot renew itself.
• No “retainer” or other regularly recurring fees for undocumented “expenses.”
• Every agent is entitled to artist commissions for employment secured by the agent and performed by the artist.
• No agent is entitled to commissions on per diems, transportation, housing, or other artist’s expenses.
• Agents are entitled to reimbursement for all reasonable expenses actually incurred and accounted for by the agent, with the artist’s consent. Artists have a right to examine pertinent books/records of the agent at reasonable times.
• Nondiscrimination,including
membership in AGMA or other labor organizations.
• The agent shall forward in-care-of-agent communications addressed to the artist promptly.
• The artist shall abide fully by all obligations to the agent.
Termination:
• The agent may terminate agreement if the artist fails to remit commissions due to the agent in a timely manner.
• The artist may terminate the agreement if the agent breaches fiduciary duty, rejects an employment offer without the artist’s informed consent, or fails to pay money due to the artist in a timely manner.
• The artist may terminate the agreement if the agent fails to secure employment for the artist during a specified number of consecutive days of the agreement.
• The agent and the artist may terminate their agreement by mutual consent at any time.
Responsibilities:
• The artist is obligated to perform engagements booked by the agent, including timely commission payment. Obligations continue even after termination for engagements previously booked by the agent.
• The agent shall not represent an artist who does not join AGMA, where this is a condition of employment.
• Upon termination, the agent shall issue a letter acknowledging termination. This letter will include a final financial statement and list of all pending offers of engagement and future engagements booked by that agent.
• The maximum amount the agent may spend for promotion without the artist’s consent is specified for any one time and for the year as a whole. At least quarterly, the agent will render itemized expenditure statements according to the original bills.
Maximum Commissions:
• No commission on compensation that is less than AGMA scale plus 10 percent.
• Maximum commissions are as follows:
– Operatic engagements: 10%
– Dance engagements: 10%
– Regular concert engagements including recitals (except recitals given at risk and expense of the artist), symphony orchestra and oratorio: 20%
– Broadcast of any live performance: 10%
– Civic and community engagements: 15%
– Release in other media (of additional over scale compensation received by Artist): 15%
• After termination or expiration, the agent is entitled to commission for release of the artist’s work product in any other media. This continues for whatever period of time in which the artist continues to receive monies, royalties or other considerations.
• Except when the artist fails to appear without cause, the commission is payable only when the monies are actually received by the artist or on the artist’s behalf.
• Agents should not charge commissions on bookings arranged, secured and negotiated solely by the artist. The artist shall fully coordinate these with the agent.
Deal Memoranda:
• Agents shall execute a Deal Memorandum for each engagement obtained by an agent.
• The Deal Memorandum shall include engagement requirements, including performance and rehearsal dates and times, compensation due the artist, and commission due the agent.
• The Deal Memorandum also shall include transportation arrangements, housing, per diems and reimbursed expenses, required publicity arrangements, and other relevant terms.
• Nothing in the agent-artist agreement or Deal Memorandum shall contain any provision less favorable to the artist than those set forth in this code.
Resolution of disputes:
• Disputes arising between an artist and an agent shall be governed by, and resolved pursuant to, the law of the state having jurisdiction over such disputes.
Future implications
Right now, the AGMA artist and the potential agent are the two principals involved in the negotiation of an artistic management contract. The code is an excellent starting point for negotiation and should help both parties reach a fair and equitable business arrangement quickly and efficiently. AGMA hopes this will lead to improved understanding, realistic expectations, fair play, and business practices in the industry that are more equitable.
AGMA will gather data on the effectiveness and usefulness of the code and provide an analytical basis for any future changes and evolution of the code, or other actions.
AGMA needs to continue the momentum of this first step in the education of its membership and extend this to other related areas. AGMA’s limited resources can be put to better use in preventing problems, by encouraging fair and equitable business relationships instead of dealing with or arbitrating a multitude of repetitive, avoidable problems on a case-by-case basis.
Problem prevention, rather than problem solving, is a better strategy for all parties. This is what AGMA hopes o achieve in the adoption and promulgation of a professional code of conduct for agents and artists.
Feedback:
AGMA welcomes your comments and suggestions for improvement of the code. Please address all comments on this article and/or the code to:
AGMA@MusicalArtists.org
