Example Performers Agreement

AGREEMENT DATED _______________________________ 1999

BETWEEN [Name and address of company] ("Company")

AND [Name and address of performer] ("Performer")

Represented by [Name and address of performer's agent] ("Agent")

BACKGROUND

A. The Company has employed the Performer to give the Performance.

B. The Company wishes to produce and release to the public recordings of the Performance on the terms and conditions of this Agreement.

C. The Company wishes to record the Performer's Performance for inclusion in the Products.

D. The Performer has agreed to authorise the recording and use by the Company of his/her Performance subject to the terms of this Agreement.

AGREEMENT

This Agreement is made up of the Agreement Details, the Standard Terms and any Attachments incorporated by reference.

AGREEMENT DETAILS

STANDARD TERMS

1. Performer's Consent and Obligations

1.1 Subject to any restrictions and limitations set out in this Agreement, the Performer irrevocably consents to the recording, broadcasting, transmission and any other use or commercialisation of the Performance and the copying, adaptation, broadcasting, transmission and any other use or commercialisation of the recorded performance, including use as a sound track.

1.2 The Performer must:

(a) give the Performance at times and places reasonably requested by the Company; and

(b) reasonably assist with publicising the Project, provided that the Company gives the Performer reasonable notice of that publicity.

1.3 All publicity work referred to in clause 1.2(b) which is the subject of a separate call and for which the Performer is not otherwise paid will attract a minimum payment for [ ] hours calculated on the Performer's hourly rate (as applied when the Performer gave the live Performance).

2. Restrictions on Use of the Performance

2.1 Unless otherwise agreed in writing with the Performer, the Company must not use or authorise the use of the Performance:

(a) in any territories/media other than the Territory/Media;

(b) in any product other than the Products; or

(c) to produce or release a Product once the Term for that Product has expired.

2.3 Notwithstanding clause 2.1(c) and subject to payment of applicable Fees, the Performer acknowledges and agrees that the Company has an irrevocable and perpetual right to copy and use or authorise the copying and use of the Products [on a not for profit basis] as part of a collection of Australian and international audio visual material in digitally encoded and compressed form ('Digital Media Library'), managed by a not for profit cultural institution (including without limitation Cinemedia Corporation) and made available [for viewing and listening] on a restricted basis at the premises of that institution or a similar institution to users of the institution or a similar institution [for the purpose of research or study]. This clause does not permit the Company to copy and use or authorise the copying and use of the Products as part of a commercial digital media library or online service unless the Company has negotiated and agreed with the Performer in writing the terms and conditions (including payment of fees or royalties) on which that copying and use may take place.

2.4 In making the Products, the Company must not allow the recorded Performance to be combined with any third party material not related to the Project unless that third party material [and the manner in which it will be incorporated into a Product] is referred to in Attachment A (Project Plan).

2.5 Unless otherwise agreed in writing with the Performer, the Company must not use or authorise the use of the Performance to advertise or promote a third party or the commercial products or services of any third party. However, this clause does not prevent the Company from:

(a) giving credits to the Company's sponsors or funding bodies (with or without the use of the logos or trade marks of those sponsors or funding bodies); and/or

(b) authorising the sponsors and/or funding bodies to use the name of the Project and/or still photographs and/or extracts from the recorded Performance (not exceeding one minute) in any promotional material (such as an annual report) relating to the relationship of the funding body or sponsor with Company and/or Project.

2.6 In making the Products, the Company must not edit the Performance in a manner that is prejudicial to the integrity of the Performance or that is likely to harm the reputation of the Performer. The Company may, however, edit the Performance in accordance with a written script approved in advance by the Performer. The Company must, in accordance with the Project Plan, provide the Performer with a reasonable opportunity to review the final edited version of each Product prior to the commencement of commercial production for that Product. If the Performer does not notify the Company of any objections to the final edited version within 7 days after the opportunity to review a Product, the Performer's right to object to the use of the Performance in that Product no longer applies.

3. Payment

3.1 The Company must pay the Performer:

(a) Up Front Fees (as defined in Attachment B) within 7 days after the date of this Agreement; and

(b) Royalties Fees (as defined in Attachment B) in accordance with this clause.

3.2 Within 30 days after 30 June and 31 December each year during the term of this Agreement, the Company must:

(a) provide to the Performer (or his or her nominated agent) [or nominated representative] a statement of Royalties setting out in clear terms the Royalties payable for the previous 6 month period and the basis on which those Royalties were calculated; and

(b) pay the Performer any Royalties set out in the statement referred to in paragraph (a), unless those Royalties do not exceed $10 (in which case they will be rolled over to the next 6 month period).

3.3 During the term of this Agreement, the Company must keep records and accounts in sufficient detail to enable Royalties to be calculated. The Company must within 7 days after a reasonable written request from the Performer [or nominated representative], make its records and accounts relevant to the calculation of Royalties available for inspection and audit by the Performer or a reputable auditor nominated by the Performer [or nominated representative].

4. Integrity and Attribution

4.1 Subject to this clause, the Company agrees not to use the Performance in a manner that would infringe the Performer's rights of attribution and integrity.

4.2 The Performer consents to the use of the Performance:

(a) in accordance with the Project Plan; and

(b) in any other manner agreed with the Performer in writing.

The Performer acknowledges and agrees that any failure to object within 7 days of being notified of a particular treatment of the Performance will be deemed to be consent to that treatment.

5. Company Warranty

The Company warrants that it will not (and will not authorise any other person to) record and/or release the recording of the Performance other than on the terms of this Agreement.

6. Dispute resolution

6.1 A party must not start court or arbitration proceedings in relation to a dispute arising under this Agreement unless it has first attempted to resolve the dispute by negotiation in good faith for a period of 30 days (or longer period agreed by the parties). Each party must involve its chief executive officer (or that person's nominee) in those negotiations.

6.2 Subject to clause 6.1, if a dispute arising under this Agreement is not resolved by negotiation, either party may by notice to the other party refer the dispute to conciliation or, where conciliation fails, arbitration before the Australian Industrial Relations Commission.

7. General

7.1 This Agreement is governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State.

7.2 This is the entire agreement of the parties in relation to its subject matter. Any notice given under this agreement must be given in writing, sent by pre-paid post or facsimile to the address of the intended recipient set out in this Agreement (or otherwise notified in accordance with this Agreement).

Attachment A (Project Plan)

Example Only

As part of the 1998 season of [name of show] the Company will make a digital video recording of the show. The recording will be made during live performances, rehearsals and at such other times as agreed with the cast. Live performances will be recorded using [2] cameras.

The recording will be used to create, use and commercialise the products set out below.

Products

* Note that this could be limited to a narrower range of media, for example, 'free to air television'

Third party materials

The Documentary/Product A and the CD ROM/Product C will also incorporate the following materials

• recorded footage of the Company's earlier show know as [name of show]

• recorded interviews with [name of people]

• [give details of any other material]

Review of Final Products

The Company will make the final version of the Products available for review by Performers in accordance with the following timetable:

Attachment B (Fees and Royalties)

Up Front Fees

The Performer will be paid a total of $ _____ in up front fees.

These up front fees are calculated on the following basis:

• $ _____ for inclusion in the Digital Media Library pursuant to clause 2.2

• $ _____ for promotional use pursuant to clause 2.4

Royalties

The Performer will be paid a royalty of _____ % of the Gross Receipts of the Company from commercialisation of Product A.

The Performer will be paid a royalty of _____ % of the Gross Receipts of the Company from commercialisation of Product B.

The Performer will be paid a royalty of _____ % of the Gross Receipts of the Company from commercialisation of Product C.

The Performer will be paid a royalty of _____ % of the Gross Receipts of the Company from commercialisation of Product D.

For the purposes of this Agreement, unless otherwise agreed in writing between the parties, 'Gross Receipts' means the total gross receipts (excluding any amounts collected by way of taxes or duties) from the Company's net sales of and/or licensing of the right to exploit the Products in the Territory, including:

• any advance payments received from the sale of and/or licensing of the right to exploit the Products whether or not those payments are invested in the Product, and

• where the right, title and interest in respect of the use of a Product is irrevocably assigned to a bona fide assignee for value, the gross amount realised by the Company but not any amount realised by the assignee.

In respect of an assignment of the kind referred to in this definition:

• the Company must advise the [Performer or nominated representative] in writing of the assignment specifying the name and address of the assignee;

• if the [Performer or nominated representative] considers on reasonable grounds that the assignment is not a bona fide assignment for value it must notify the Company in writing specifying reasons for its view;

on receipt of such a notice from the [Performer or nominated representative], the Company and the [Performer or nominated representative] must promptly confer for the purpose of reaching agreement.