Booking Agent Agreements: Commission, Exclusivity and Talent Agency Licensing

The short version

A booking agent agreement is the contract between an artist and a booking agent (or agency) that sets the agent's commission on the shows they find and negotiate, whether the agent is exclusive, where, and for how long. The commission most often cited is 10 percent of the gross show fee, though it is not universal. Some states license the agent's side: in California, anyone in the business of procuring engagements for musicians needs a talent agency license.

What does a booking agent do?

A booking agent sells an artist's live shows. The agent pitches the act to promoters, venues and festivals, negotiates the fee and terms, and routes dates into a tour. The promoter makes an offer, the agent negotiates it, and the result is a performance agreement between the artist and the promoter, sometimes with the deposit paid to the agent.

The booking agent agreement is a separate document, between the artist and the agent. The show itself is papered by a live performance agreement between the artist and the promoter.

How is a booking agent different from a manager?

An agent finds and negotiates paid engagements. A manager runs the career and takes a commission on most of the artist's entertainment income, usually at a higher rate (management agreements covers that deal). An artist with both pays both out of the same fee. In California the line also matters legally, because the Talent Agencies Act looks at what a person does, whatever their title (below).

What commission does a booking agent charge?

Ten percent is the figure most often given. Romano Law, an entertainment firm, writes that a 10 percent commission often applies to agents but is not universal. Rates are negotiated, and where a cap applies, it sets the ceiling:

• The AFM's booking agent agreement caps a franchised agent's commission on union members at 15 percent for a steady engagement (two or more days a week for the same buyer in the same place) and 20 percent for a single one-day engagement.
• New York's General Business Law caps the fee for a single theatrical engagement at 10 percent of the artist's pay, and 20 percent for orchestras and the opera and concert fields (section 185(8)).
• California sets no percentage. A licensed agency files its schedule of fees with the Labor Commissioner, and a change takes effect seven days after filing and posting (Labor Code section 1700.24).

What is the commission calculated on?

Commonly the gross fee for each show: the guarantee plus any share of ticket sales, before the artist's own costs. The AFM's schedule, for instance, applies its percentages to the gross money a member receives for each engagement. Read how the agreement defines the income it covers: only the shows the agent books, any engagement in the territory, or other work such as brand appearances.

A worked example: a show pays a $4,000 guarantee plus $1,000 from the ticket split, $5,000 in all.

1. The agent's 10 percent of gross is $500.
2. If a manager also takes 15 percent of the same gross fee, that is another $750.
3. $1,250 has gone to commissions before travel, crew or the band are paid.

If getting there cost $2,000, the $500 commission is a sixth of the $3,000 left. Some artists ask for small shows to be excluded, or for some costs to come off first.

Is a booking agent exclusive, and where?

An exclusive agreement makes the agent the artist's only representative for live engagements, so no other agent may book shows in the same territory while it runs. With exclusivity, check whether the agent is owed commission on every show in the territory, including ones the artist books alone.

The territory might be one country, North America or the world, and a narrower one leaves the artist free to sign other agents elsewhere. The AFM adds a step for its members: an exclusive agreement with a franchised agent takes effect only once the AFM president's office approves it in writing (section 6(d)).

How long does it last, and what happens after it ends?

Romano Law puts agency agreements at one to three years. Some renew automatically unless one side gives notice, so the notice window matters as much as the term.

Commission after the term (a tail, or sunset clause) needs the closest reading. Romano Law describes a sunset covering work secured during the term, for a set time or for as long as it earns; for an agent, that means shows booked during the term that play after it. A broader tail pays on any show with a promoter the agent introduced, for a period after the term.

The AFM agreement gives two concrete versions. Ending it does not cancel engagement contracts already signed or commissions already earned (section 13(d)). And if the key players of a steady engagement are rebooked at the same location within 60 days of finishing (up to 180 if agreed in writing), they owe the original agent commission on that first rebooking, whoever booked it (section 12(a)).

Who holds the money?

An agent may collect the deposit or the fee. In California, a licensed agency must put an artist's money in a trust account and pay it out, less commission, within 30 days (section 1700.25). The AFM agreement requires a buyer's deposit to sit in a separate escrow account until the engagement is complete, and says no commission is owed on a show the member was never paid for, unless that was the member's fault (section 6(c), Schedule 1(D)).

Do booking agents need a license?

It depends on the state. This is background on two states' statutes, not advice on any situation.

California. A "talent agency" is anyone in the occupation of procuring, offering, promising or attempting to procure engagements for artists, a term that includes musical artists and musical organizations; procuring recording contracts does not by itself require a license (Labor Code section 1700.4). Running one requires a license from the Labor Commissioner (section 1700.5), whose approval each agency's contract form needs, with a printed statement that the agency is licensed (section 1700.23). Disputes under the Act go to the Labor Commissioner, a claim must be brought within one year of the alleged violation, and an unlicensed person may act with, and at the request of, a licensed agency in negotiating a contract (section 1700.44).

New York. A theatrical employment agency is anyone who procures engagements for an artist, a definition that names musical artists and musical organizations, excluding managing artists where that only incidentally involves seeking work (General Business Law section 171). Running an employment agency requires a license (section 172).

Other states have their own rules; an entertainment attorney in the state can say how they apply.

What has California held about unlicensed booking?

In a 1990 determination, the Labor Commissioner heard a band's petition against its unlicensed personal manager, who had arranged club shows for it at the Roxy and elsewhere. The hearing officer found he had procured employment, rejected the argument that gigs fall under the recording contract exception because they showcase a band to labels, and declared the management agreement void (TAC 17-88).

In Marathon Entertainment v. Blasi (2008), the California Supreme Court held that the Act regulates conduct rather than titles, so it reaches managers who procure work, and that a court may sever the unlawful part of an agreement and enforce the rest. Each case turns on its facts.

How do AFM booking agent agreements work?

The American Federation of Musicians franchises booking agents to represent its members. A franchised agent signs the AFM's booking agent agreement, which caps commissions, requires each engagement to be on the AFM's contract form and filed with the local where the show happens, forbids a commission that would leave the member below the local's minimum scale, and sends disputes to the union's International Executive Board. Every agreement between that agent and a member is treated as including those terms. A non-union artist's agreement with an agent is outside it.

Key terms in a booking agent agreement

What are the red flags in a booking agent contract?

• A fee to sign up. A California talent agency may not charge a registration fee, and must refund fees and expenses collected for work the artist never got or was never paid for (section 1700.40).
• Commission on all of the artist's income, recordings and publishing included.
• An exclusive worldwide territory for an act that tours one region.
• A tail with no end date, or one covering any promoter the agent has ever dealt with.
• Nothing on where deposits are held or how fast the artist is paid.
• A California agency whose contract does not say it is licensed.

Common questions

How much does a booking agent take?

Ten percent of the gross show fee is the figure most often cited, though rates vary. The AFM caps its franchised agents at 15 percent for steady engagements and 20 percent for single dates, and New York caps a single theatrical engagement at 10 percent.

What is the difference between a booking agent and a manager?

An agent books and negotiates shows; a manager guides the whole career and commissions most entertainment income. Many artists have both and pay both from the same fee. See management agreements.

Does a booking agent need a license?

In some states. California requires a talent agency license from the Labor Commissioner for anyone in the occupation of procuring engagements for musicians, and New York licenses employment agencies, theatrical ones included.

Can my manager book my shows in California?

The Act applies to anyone who procures engagements, and the state Supreme Court has held that includes managers. An unlicensed manager may act with, and at the request of, a licensed agency in negotiating a contract. Whether particular conduct crosses the line is a question for an entertainment attorney.

Does a booking agent get paid after the contract ends?

Often, under a tail or sunset clause, for shows booked during the term that play after it. Broader tails reach shows with promoters the agent introduced. The clause should say which shows and for how long.

Do I need a lawyer for a booking agent agreement?

keysig is not a law firm. An exclusive agreement with a long tail or a wide territory can shape years of touring income, so an entertainment attorney's review is worth having before signing.

Where keysig fits

keysig does not draft booking agent agreements. It drafts the agreements on either side of one:

• The Live Performance Agreement covers one show between the artist and the promoter, its two signers, and either side can start it. It sets the guarantee and any share of net box office receipts, allows only the deductions listed in it, credits a deposit against the guarantee, and requires a written settlement statement on the night. It has no clause for an agent's commission, which stays between the artist and the agent.
• The Management Agreement is signed by the artist and the manager, and live performance and touring is one of the services it can list. It states that the manager is not acting as a talent agent.

For an agency agreement itself, especially an exclusive one or one with a long tail, take it to an entertainment attorney before signing. To see which agreement fits a situation, start with what agreement do I need.