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Who's stuck holding the bag?


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This is a question I've thought about for "quite awhile" (decades) which I haven't settled in my own mind... well I kind of have, except for feeling like a chump when it happens:

 

So this past weekend it happened again... I'm left holding the bag, which this time contains an SM-57 with it's guts hanging out it's mouth. This situation came about via a 2 day festival this past weekend. I have some ATM-63 mics, which I usually use on the snare and rack toms at "local talent" festival situations. I use the ATM-63's because they sound ok for the situation, and will generally survive repeated drum stick hits. One of the band's drummer insisted on a SM-57 on his snare. Ok, so SM-57 on his snare it was. And sure enough, about 1/2 through their hour long set, the SM-57 took a drum stick smack right to the kisser... bad enough the windscreen parts probably flew 15ft. and what's left of the mic's diaphragm and voice coil is laying on the drum carpet, and the drummer's complaining that he suddenly can't hear his snare through his monitor.

 

Ok, so should I hit that band or that drummer up for a replacement SM-57, which will likely only create a scene at the show when time is tight, and likely won't result in anything other than some flared tempers? Or hit the customer (festival organizers) up which would likely result in souring our otherwise very good, long term relationship? Or just take it in stride as a cost of doing business (and stick to my guns in the future concerning my choice of mic for the seeming situation)?

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You should probably trust your better judgement in the future.

 

That said, the drummer specifically asked for a 57, so I'd say it's his responsibility. Shure's repair rate for a 57 is $55 plus shipping it to them, so you're out about $60-$65. There's probably not much you can do to make him pay you, but if you're able to track him down, you should definitely tell him about it and ask for him to pay to repair the damage he caused. It would be different if the 57 was your choice, but you know better than that, so...

 

If he doesn't agree to pay you (or replace the mic), the next event you do for that drummer/band should cost $65 more than normal. Problem solved. Maybe.

 

Next time you run into a situation like this, you shouldn't let him off stage until you come to an agreement. The fact that the drummer is a terrible marksman shouldn't be your problem.

 

I'm happy to use a 57 on snare for any drummer, so long as they provide the mic. I'm not putting one of my 57's onto a minefield.

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Consider it a consumable. Hopefully the gig paid enough to cover it. Maybe mic the underside of the snare with the polarity reversed. If they ask why, tell them. That can lead to an agreement: if it's on top, you break you buy.

 

or do the fork trick. I just picked up one of those 90 degree sm57's. I think I'll mount a fork to it before I use it.

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My 2 cents ... Unless there was deliberate damage to the mic I'd say you should just expect that to happen once in a while and consider it a cost of doing business.

 

 

 

If a HF driver popped during a show would you go after the singer?

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Shame on the drummer for not being a decent human being and offering to replace or repair. Accidental or not, I can't even fathom destroying someone else's gear and shrugging it off. It's no different than a hit and run, IMO.

 

I would absolutely ask him to replace it. If he tells you to effectively "get bent" well then you can take him to small claims court or let it go.

 

Done right, IMO anyway, the accountability should roll through all parties, contractually. You cover these things in the contract with your customer, and they reciprocate, holding you accountable for damages you may cause to other vendors stuff. Then the festival does the same with the artists. While some things would be hard to prove, this example would be pretty cut and dry and you'd get your $55 bucks, or at least have a clear legal and "forced honorable" path to replacing the microphone.

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My 2 cents ... Unless there was deliberate damage to the mic I'd say you should just expect that to happen once in a while and consider it a cost of doing business.

 

 

 

If a HF driver popped during a show would you go after the singer?

 

Poor example. In this case the drummer flat out whacked, and subsequently destroyed, the microphone.... a direct cause and effect. Granted, for $55, it's not really worth the time to pursue, but my guess, in the eyes of the law the drummer would be responsible.

 

Mark was providing a service, not supplying pinatas!

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I just googled "sample sound provider contract". Here are 3 examples:

 

 

The first is holding the artist responsible. LINK TO PAGE. This likely wouldn't work when you aren't directly contracted with the artist, but here's the entire section. I also don't understand why the production company is including damage to facilities, building and grounds. That would seemingly work only if the venue was also the production company.

 

Responsibilities of Artist

 

4.1Artist agrees that it will:

 

make all payments when due;

 

pay for any damage caused by Artist or by Artist’s personnel or guests or audience members, other than normal wear and tear, to the equipment, venue facilities, vehicles, building or grounds;

 

not eat, drink, or smoke near the sound system and not place any food, drinks or smoking material on any equipment.

 

 

4.2In the event of cancellation of a performance or other scheduled service by Artist, Artist shall be responsible for 20% of the cost of sound reinforcement services, if cancellation occurs within 72 hours of the scheduled performance.

 


And here's a contract that's more universal to whoever you're contracted with. - http://hayneseventproductions.com/images/CONTRACT.pdf

 

Theft or Damage to Equipment & Security: Buyer shall be responsible for any theft or damage to Contractor’s equipment while located at the Venue except for normal usage. This responsibility begins when trailer door is unlocked at load-in and ends when trailer door is locked at loadout. Equipment shall be valued at current replacement value, or, if equivalent equipment is not immediately available, then at original cost. Reimbursement for damages shall be made within a ten-day period from date of invoice. Buyer shall provide appropriate security for Contractor’s personnel and equipment during the term of this Agreement.

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Shame on the drummer for not being a decent human being and offering to replace or repair. Accidental or not, I can't even fathom destroying someone else's gear and shrugging it off. It's no different than a hit and run, IMO.

 

The fact that he not only didn't notice hitting the mic, but then was complaining that he couldn't hear the snare any more....and couldn't puzzle out that mystery...speaks volumes.

 

As far as the dilemma, I would just write it off. But I'd also stick to my guns with mic selection....you want a -57 on the snare? Then bring me your -57 and I'll be happy to use it...I'll even provide the stand and cable.

 

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The fact that he not only didn't notice hitting the mic, but then was complaining that he couldn't hear the snare any more....and couldn't puzzle out that mystery...speaks volumes.

 

As far as the dilemma, I would just write it off. But I'd also stick to my guns with mic selection....you want a -57 on the snare? Then bring me your -57 and I'll be happy to use it...I'll even provide the stand and cable.

 

Fair enough, but at some point during or after the set, when brought to his attention and seeing 1/2 microphone in the holder, he'd know he was the cause.

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I would eat the cost this time. For anything similar in the future I would draft a simple loan agreement with a damage clause . If someone ask for a mic, you have them sign the loan agreement. If it comes back damaged, you have a signed agreement. If it comes back fine, no charge, they returned the mic. Since the original contract doesn't require you to meet a rider, you as the provider figure it out. If the drummer doesn't like the solution, he signs to "borrow" a different mic with the understanding that any damage is on him. Nothing elaborate, just enough to be legal.

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Since the original contract doesn't require you to meet a rider' date=' you as the provider figure it out.[/quote']

 

Per exactly my thoughts. I believe the simplest solution is instituting company policy, as I didn't actually field the request nor change-out the 63 for the 57... a stage hand did... but my bad for not explaining my reason for running the 63's rather than 57's ahead of time: If no rider, then we use the ATM-63's which have proven to take a licking and keep on ticking regarding likely drum stick smack situations... and IMO, the ATM-63's sound just peachy-fine for the application anyway.

 

 

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Mark, I always took what I wanted to the show because I seldom had a rider, as in almost never. If anyone asked for a different mic, the normal response is "Sure. No problem! What cha got?" If they didn't bring it, they get what I give them.

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I'm just waxing philosophical here, but just some things to think about.

 

I'd suggest that the fact the drummer wanted a different microphone is a symptom, but not the cause. It just happened to work out that he destroyed a microphone you would have rather not used because it's not as durable. Using the "other microphone" may lower risk, but still resigns you an acceptable loss policy to apparently avoid accountability and the conflict that often comes with it. So now you'll have to have a pile of mics you'd be OK with throwing away. Plus you're not covering losses on anything else you provide.

 

What do you do when a $100 SM58 would work, but the $300 condenser mic would be the better choice? Do you compromise the product in the name of acceptable losses?

 

It seems to me you'd want a more comprehensive solution than the signing out of the "good china" policy, which seems pretty random .... anything we decide is to be used is covered if damaged, but any special requests will be handled by making someone accountable.

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Shame on the drummer for not being a decent human being and offering to replace or repair. Accidental or not' date=' I can't even fathom destroying someone else's gear and shrugging it off. It's no different than a hit and run, IMO. --snip--[/quote']

No question that this be true. Still, Mark's question remains.

 

--snip--

As far as the dilemma, I would just write it off. But I'd also stick to my guns with mic selection....you want a -57 on the snare? Then bring me your -57 and I'll be happy to use it...I'll even provide the stand and cable.

Sounds perfectly reasonable to me.

 

--snip-- If anyone asked for a different mic' date=' the normal response is "Sure. No problem! What cha got?" If they didn't bring it, they get what I give them.[/quote']

Same -- said another way.

 

Yup I think I'd just eat the cost on this one -- especially given your stage hand did the setup and not you -- but would try to take one of the above approaches in the future. Of course if you got $2k to run sound that night maybe just shrug and move on? !

 

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' date=' other than normal wear and tear, to the equipment[/quote']

 

 

 

So this would be the question. I mean guitar players break strings while picking. It think one could make the argument that if you stick a mic over the drum and in the course of normal playing the drummer hits it I would consider that normal wear and tear ( but I'm guessing how the law would treat this). Maybe the liability falls to the one that stuck a mic in the middle of flailing drum sticks. What should they expect. What if someone tripped on a mic cable laying on the floor and breaks it? Should they be liable or should you expect to lose a few cables now and then when they are run where people expect to put their feet.

 

 

 

I can can tell you that when I play drums and someone sticks a mic out over the drumhead I am so careful not to hit it that my playing suffers. I tell them to move the mic further away.

 

 

 

 

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So this would be the question. I mean guitar players break strings while picking. It think one could make the argument that if you stick a mic over the drum and in the course of normal playing the drummer hits it I would consider that normal wear and tear ( but I'm guessing how the law would treat this). Maybe the liability falls to the one that stuck a mic in the middle of flailing drum sticks. What should they expect. What if someone tripped on a mic cable laying on the floor and breaks it? Should they be liable or should you expect to lose a few cables now and then when they are run where people expect to put their feet.

 

 

 

I can can tell you that when I play drums and someone sticks a mic out over the drumhead I am so careful not to hit it that my playing suffers. I tell them to move the mic further away.

 

 

 

 

We don't know how far the mic was away from the head, but if it's in the way where it may get hit it's kind up to the player, IMO, to say, hey guy, you gotta move that mic. If the guy doesn't move the mic and I hit it then I don't feel so bad. I know 57's have been a go to snare mic for years. I'm sure many have bitten the dust in this manner, but I don't consider striking the mic normal wear and tear. If that were the case the 57 would not be a go to snare mic as it wouldn't be cost effect to replace them 2 twice a show. If it's that big of a deal then then put in your contract the drummer must bring his own snare microphone or some other language that flat out says if you strike our microphones with a stick and break then you will pay for the microphone.

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We don't know how far the mic was away from the head,

The mic encroached a couple of square inches over the 150+ square inches of the beater head of the snare... and was situated in an area of the drum's beater head that I'd think is typically unused beater head space for a right handed drummer. IOW: Whacking my mic with his drum stick should have otherwise been an anomaly... but it was what it was. Life is a learning experience. I learned to put ATM-63's on local talent drummer's snares and toms years ago... my bad for not being the Omni present micromanaging boss on that latest of what again proved to be a boss education opportunity.

 

 

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What it speaks volumes of to me is the lack of accountability I've seen in some people. If confronted, he'd probably just shrug his shoulders, or worse go the other way and get belligerent as a defense against accepting responsibility for his damage. He certainly couldn't be so stupid as to not know that half the microphone hanging out of the case was the cause of his lack of hearing the snare drum any more. But then, he's a drummer, so we can resort to base humor here....

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I would eat the cost this time. For anything similar in the future I would draft a simple loan agreement with a damage clause . If someone ask for a mic' date=' you have them sign the loan agreement. If it comes back damaged, you have a signed agreement. If it comes back fine, no charge, they returned the mic. Since the original contract doesn't require you to meet a rider, you as the provider figure it out. If the drummer doesn't like the solution, he signs to "borrow" a different mic with the understanding that any damage is on him. Nothing elaborate, just enough to be legal.[/quote']

 

Legal agreements are only as good as the parties involved. If the drummer says "tough chit", you're back to square 1. Taking this to court costs time and money, which you only collect if you win...and the other party pays, which even with a court win is not a guarantee. And you of course lose a customer, and possibly gain a reputation. The only way this sort of arrangement works is if you collect a damage deposit...in cash...before hand, and apply it to the cost of lost goods, or the cost of the show, later. It still doesn't guarantee that you receive full payment at the end of the show.

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Legal agreements are only as good as the parties involved. If the drummer says "tough chit", you're back to square 1. Taking this to court costs time and money, which you only collect if you win...and the other party pays, which even with a court win is not a guarantee. And you of course lose a customer, and possibly gain a reputation. The only way this sort of arrangement works is if you collect a damage deposit...in cash...before hand, and apply it to the cost of lost goods, or the cost of the show, later. It still doesn't guarantee that you receive full payment at the end of the show.

 

True Craig, but the $50 isn't really the issue. It's about liability. So if the singer drops a $500 microphone into the horn flare of a $1000 monitor and does catastrophic damage to the wedge and destroys the microphone, is that enough to take to small claims court? Having a contract with "something" written pertaining to damage at gives more weight to a claim made down the road. Contracts are as much about setting expectations as they are about what happens if something bad occurs. So it's a reminder to the talent to be respectful of the gear.

 

Again, I've just been waxing here. I'm aware there's a balance what the market will bear as far as onerous contracts go. There are small time operators that do bars and contracts would be just as laughable by the bands as they are to venues when I suggest them for my band. So you're going in eyes wide open understanding, unless it's some outrageous act, you're very likely out of luck if the talent damages anything you're using on the job. For large public events and all private ones, I don't see a contract being a problem, and frankly would think the client would expect, and even want it.

 

So was there a contract? If so did it have any teeth at all? I admit its a tough situation, and we've had to soften our language from the client being responsible for damages to "the musicians" being in control and able to "say no". Things like:

 

- We have the right to stay in view of the performance area at all times

- We have the right to restrict access

- No obligation to let any 3rd party use our stuff

- Any "guest musicians" must be arranged ahead of time

 

This kind of stuff reduces the chance of bad stuff, but certainly doesn't eliminate it. It gives us a fighting chance of knowing who else may want access, or what grand plans they may have that involve "our stuff". It's actually worked well, especially the pre-arranging of musicians. We used to get ambushed anywhere from a few days before to on the spot. Now we have time to manage the situation so - "Hey, can my friend, who's the brother of the groom, play your guitar for a couple songs? becomes - Joe can bring his own guitar, show up for our sound check to make sure everything is set, and will start the second set with his songs.

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