For many working musicians, the use of deputies to fulfil engagements – a process better known as ‘depping’ – is an integral part of working life. It’s a practice that has gone on for over a century, with theatre musicians in particular arranging or ‘fixing’ their own deps.
The depping system is an efficient method for musicians to organise themselves and ensure that an engagement is honoured, when illness or other work commitments present themselves. But it can be a relatively informal and unregulated process and for both musicians involved, there are important practical and legal implications to consider.
Such implications have been brought into sharp focus recently by the MU’s East & South East England Office. Regional Officer Tom Eagle and his colleagues have seen several disputes involving function band musicians depping out engagements. The MU is keen to highlight the potential pitfalls of depping out gigs in the function band market and to advise musicians on how to avoid problems in the future.
A band member might have a legal liability for payment
The first thing to note is that anyone depping out work – whether they are a band member or the bandleader – might be legally liable for the payment of that dep, says Tom, even if the band ends up not being paid. Many function band musicians incorrectly assume that payment in such cases is always the bandleader’s responsibility, he says. When they discover the responsibility falls on them alone, it can come as a complete surprise.
A lot of people do not understand that as soon as they dep someone out they’re acting as a contractor. And that’s what they are really, really shocked by. // Tom Eagle, MU Regional Officer, East & South East England
“A lot of people do not understand that as soon as they dep someone out they’re acting as a contractor,” says Tom. “And that’s what they are really, really shocked by… So if you’re depping out a gig, make sure you are able to pay, in the event of a non-payment. We’ve had quite a lot of member versus member disputes where a dep hasn’t been paid by the person who contracted them. And actually, if it came down to it, the person who arranged for them to dep would almost always be liable to pay.”
Don’t assume you have the right to use a dep
It’s worth noting that there is no general right entitling all musicians to appoint a deputy whenever they want. If your contract doesn’t mention it, do not assume you have the right to use a deputy. There may be specific terms in your engagement contract setting out who can appoint a deputy and how. This is often the case with permanent orchestras.
As the MU’s In-House Solicitor, Dawn Rodger encourages members to set out in writing exactly what has been agreed. This way, if needed, it can be used to evidence the terms of the arrangement between the musician depping out and the dep themselves. Dawn also advises that you make sure emails aren’t just going one way, so if you send confirmation of your understanding of the agreement, make sure that the other person replies to confirm that they agree.
“The terms of a contractual arrangement need to be agreed,” says Dawn. “The important thing is to get whatever arrangements have been agreed in writing.”
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Get written evidence of what was agreed
Function bands will typically use the MU’s L1 contract as the basis for their agreement with the client, and an L2 could be used as a written agreement between the person depping out and the dep. But realistically, any form of written exchange between the two parties, outlining what was agreed, can be used. “We’ve used things like WhatsApp and Facebook messages,” says Tom Eagle. “Ultimately you just need to be able to prove that all the necessary elements of a contract have been agreed.”
The terms of a contractual arrangement need to be agreed. The important thing is to get whatever arrangements have been agreed in writing. // Dawn Rodger, MU In-House Solicitor
When it comes to determining the payment for a dep, it’s worth noting that their fees may not be the same as for a regular band member. While many bands have regular deps lined up who may work for the same fees, if you need to bring in a last-minute dep who doesn’t already know your repertoire, they may expect a higher fee for their time spent having to learn the new material.
Make sure the client gets the band they thought they’d booked
The whole process of hiring deps throws up another potential problem. Clients, such as couples planning their weddings, will often hire bands on the basis of the musicians that have impressed them live. Sometimes, it’s a particular band member that has caught their attention. If it’s an instrumental band, the client may have booked them primarily because they were impressed by the saxophonist. Or they may have been drawn by the talents of a particular singer. If that band then turns up with significantly different members, the client could understandably feel cheated.
“We had a case a few years ago where a client booked a band that they saw playing in a club because they wanted that singer,” explains Tom Eagle. “The singer got offered a better gig so he depped his gig out and thought that the client wouldn’t notice, because it was the same setlist. They turn up, it’s not the singer that the client had booked so the client ended up suing the singer for ‘loss of enjoyment’. It’s more the case for singers – anyone who’s named in the band – but basically if there are any changes at all to the line-up, make sure that the client is aware of that and is happy with that.”
The legal view was that fair compensation was the full cost of re-staging the wedding, explains Tom. “The member ended up settling out of court for less than the cost of re-staging the wedding, but it was still a very expensive mistake to make.”
Let the client know if there are any changes to the line-up
The MU’s advice is to always make the client aware in advance if there are any changes to the line-up that they have booked. And once again, always get it in writing. WhatsApp messages, Facebook messages or emails will suffice as evidence of what was agreed. Band leaders will also use one of the MU’s L1 contracts.
“In that contract they might add a page of additional terms, such as rider requests and line up changes,” explains Tom. “Some of the ones I’ve seen say ‘If you’re booking so-and-so band, they may dep out guitar, bass, keys or drums but they will be of the same standard’. It’s always a good thing to make clients aware if that’s the case, so that they know exactly what they’re getting.”
Despite such assurances from the band there are sometimes instances when the wide use of deps impacts on the music provided at the event.
“Having a clause in the contract regarding the use of deps doesn’t completely take away the problem, as of course the client could complain that the dep isn’t of the same standard or some other issue might arise with the performance,” says Dawn. “Sometimes, too many deps are used and the band that performs is not used to playing together which can give rise to performance issues. No contractual clause can protect completely from the risk of a claim being brought against you. But if the client is happy to agree to the inclusion of one, then it’s probably a good clause to include.”
Choose your dep wisely
Tom Eagle has a final piece of advice for members who dep out gigs, particularly those in function bands. “Choose wisely,” he advises. “Remember that if you are booking someone to dep for you, make sure they are fully aware of setlists, arrival and set-up times, dress code and so on. I spoke to a member this morning, he did a function dep and one of the band members had sent him the wrong setlist. So they ended up playing completely the wrong songs at this wedding and obviously the client refused to pay. So it’s making sure that any changes are always conveyed to other band members.”
Ultimately, says Tom, it’s all about being aware of your responsibilities when depping out work to other musicians. Failure to do so can be costly, in both financial and legal terms.
“People just aren’t aware of it” he says. “They’re not aware of their responsibilities. They just think they’ve passed on a gig to someone and while that might be the case most of the time, occasionally it goes wrong.”