Contracts 101

CONTRACTS 101

These FAQ’s are designed to help performing artists understand their contracts both when engaged as a performer or engaging other artists as performing artist/producers.

Do I have to have a contract?

Yes. And no. Performers belonging to unions (ACTRA, UBCP, AFM, etc) are generally required to have a signed contract with an engager/producer before providing their services. While legally, they can perform without a contract, doing so can and most likely will lead to conflict with their union. A union member who is not in good standing with their union can find themselves unemployable by engagers (producers, theatres, festivals) who are signatories to collective agreements with the relevant unions. Unions can also pursue disciplinary proceedings (fines, expulsion) as outlined in their constitution. While non-union performers don’t need to worry about violating the requirements of a union, they do need to worry about protecting themselves and ensuring their own safety and comfort. Asking a potential engager question about their expectations of you, relevant remuneration, etc, can tell you a lot about how they operate. It’s up to you to gauge the trustworthiness of the engager and your willingness to meet their expectations. Contracts clearly lay out the agreement of the players and provide remedies for disagreements.

Is a verbal agreement a contract? What if we shake – or don’t shake – on it?

The film community operated on verbal agreements for many decades – often the contracts weren’t complete until after a shoot was finished. Reality is it can be very difficult to enforce a verbal contract if not impossible without documents that support the claims of one or the other party.  In short a  verbal agreement is worth the paper it’s printed on (for clarity: which is no paper at all so worthless) there are wrinkles to every situation. Did a producer/engager promise you a bonus if the run sells out then change their mind or deny it? If there’s no proof or paper trail – notes, emails, etc – then you’re usually out of luck. And that is when you find out the value of a verbal agreement.

I exchanged emails and text messages with the engager do I  have a contract?

In a word, yes.  Emails and text message are valid evidence of the intentions of the parties.  Just watch an episode of Judge Judy or the People’s Court for how frequently this happens.

Lawyers watch Judge Judy?

Yes, some do.

Is a “Deal Memo” a contract? Is it binding?

A ‘Deal Memo’ is often a step on the way to achieving an agreement that is then contained  in a contract. Deal Memo’s lay out key broad points understanding between two parties – what they’re doing, how long they’re doing it, basic financial terms. A ‘Deal Memo’ is a contract; however, it may not be enforceable if a longer form agreement is written and conflicts with the Deal Memo.

I work mostly with friends so we don’t really need contracts and deal memo, do we?

ALO will always advise you to have contracts. It is all about their mutual understanding of the requirements of the gig. “What are we doing? Where and when are we doing it? What happens if one of us is dissatisfied or something goes wrong?” In that sense, a contract is not altogether different than the traditional structure of a drama: “What does the hero want? What keeps them from getting it? What do they do next?’

What should a contract include?

There are many key terms or provisions that could and in some cases should be included in a written agreement. These include general provisions what are the co-called “boilerplate” provisions as well as provisions that are specific to your agreement. Of course, written agreements can and often do also include many formalities such as the effective date of the agreement, signature lines, headings, recitals, numbered paragraphs and sections, witness signatures, addresses of the parties, etc, all of which add to the completeness and accuracy of a formal written agreement.

What does “entire agreement” mean?

 An entire agreement clause makes it so that your agreement is limited to only what appears in the final, written contract. This clause means that any promises made, either written or oral, that do not appear in the written contract are unenforceable.

Can I change the contract after I sign it?

Hopefully yes. Usually, a contract can be amended if both parties agree to the change in writing.

When and how do I get paid? Does a contract tell me?

Fees and payment are key provisions of any contract but a contract should also include other considerations, including such things as accommodation, per films, meals supplied, travel expenses and other benefits or so-called perks that might be negotiated and agreed to and set out in the agreement. Depending on your level experience, you might or might not pay close attention to this but it is very important. Always make sure the contract tells you when and how you will get paid.

Am I expected to take care of all the tech and such?

If you are required to purchase any equipment for your performance, the contract should say whether or not your employer/engager will reimburse you. Any technical requirements should also be set out including who is responsible for providing what. Your contract should describe the work you will be doing. Sometimes this description is in a “Schedule” to the contract. The description may be in the body of the contract and may include information about the technical requirements of the performance, rehearsal, and costumes and equipment. If you have any questions or uncertainties about what your performance will require, the best practice is to clarify the terms of the performance with your employer/engager within the contract before signing. 

Should I care about the ‘term’ of the agreement? What does that mean?

The “term” is how long the agreement lasts. Put another way, it is the duration of the agreement. In this regard, the term of the agreement should be clearly spelled out, as well as the rights that either party might have to terminate the term of the agreement. Often, in certain cases, the default (‘boilerplate’) term will be ‘perpetuity’. Understandably, anyone making an investment in a film will want the right to use your likeness in perpetuity. If you’re a writer – or perhaps a performer involved in a collective creation a film producer would like to produce as a film or TV show (‘exploit’), you have room to negotiate the term. In such a case, a producing entity would need the ability to exploit/distribute the production for a period of a time but you might want to ensure that your ability to continue to present your work in its original form (on stage if a stage play) is preserved. You might even negotiate to have all the rights – save for those of the finished film itself – revert to you after a reasonable period.

What happens if there is a technical problem before or during the performance?

Your contract should address the possibility of non-performance. An inability to perform due to technical problems is one such possibility. Issues around non-performance are typically found clauses labeled as “Termination” or “Cancellation”.  The exact terms will depend on whether your performance will occur in-person or virtually. Provides examples of clauses that deal with technical problems for a virtual performance.

What do I do If the conditions are unsafe?

You have a right to contact Worksafe and file a complaint. You may also want to review Actsafe.

Can I quit If I think the conditions are unsafe?

That depends on what you mean by unsafe.  Sometimes your contract will address this, however, this is where it can be helpful to speak to Actsafe or Worksafe when in BC.

I assumed a fight co-ordinator would be hired for our production. Instead, a senior member of our production team (director, producer) is bullying me and a fellow performer to just “make it work” despite the dangers posed. What can I do without making a bad situation worse?

Thankfully, there are a lot of resources available to protect workers in a variety of industries including the performing arts. The Professional Alliance of Canadian Theatre’s has a terrific resource that might help. There is also this resource from Respectful Workplaces in the Arts and this resource from SHARP.

What is a termination clause? What does it mean?

Typically, an agreement might be able to be ‘terminated’ – ended, killed, canceled – based on certain events. For example, the failure to pay a deposit to secure the services of an artist or, for example, ‘on notice’. A typical notice of termination might be based on 30 days written notice. The notice of termination clause is quite relevant because it clearly spells out how notice is to be given. For example, is it be personal delivery? Registered mail? E-mail? Any of these three methods? The notice clause is important and is often a general provision classed as one of the ‘boilerplate’ provisions mentioned above. 

What happens when a contract is breached? What are my rights and responsibilities?

This is an area where  legal advice may be warranted. This could, of course, depend on what is at stake for you or the engager financially and the costs of legal advice. The consequences of a breach of contract are specific to each situation or contract. What many do no not realize is that if you are in a situation where a contract is breach, you have the duty in law to ‘mitigate’ or lessen your losses. For example, if your contract is terminated and you can obtain a similar engagement for the same amount of consideration, or substantially the same amount of consideration, or even greater consideration, then you are obligated by law to make reasonable efforts to do so. If you cannot find a substitute contractual situation after you have attempted to mitigate your losses and failed, then you can elect to sue for damages. Damages are typically the financial compensation awarded by a court which, on a reasonably foreseeable basis, might result from a breach of contract.

If contracts are agreements between entities – an ‘Engager’ and a ‘Service Provider’, usually me – would I be better protected as a Corporation?

Many artists love the freedom of being individual creators. However, if you are not incorporated, keep in mind that ‘personal liability’ can result in situations where you personally sign an agreement. In situations where the liabilities could be substantial, this would mean that you could be subject to having your personal assets, such as your home, other personal assets, including monies in a bank account, available in order to satisfy a judgement in court. This is why one should carefully consider the risks involved in any venture and whether incorporation is a way to appropriately minimize that risk. In this regard, it is also important to consider at all times whether or not insurance is available to the business venture to minimize the risk of loss.

How do I resolve disputes with my employer/engager?

Your contract should address what happens in the event of a disagreement . They can be found under the heading “Dispute Resolution”. There are many ways to resolve conflicts – first by talking to each other.  In an ideal world, that is a requirement  methods may include mediation, arbitration, or litigation (going to court).  Arbitration can be very expensive it may be preferable to go to mediation or Small Claims Court (the Civil Resolution Tribunal).

What does jurisdiction mean?

Basically it means the place that either you or your engager can sue one another.  If you are in based in BC you likely want to be able to make a claim here rather than say Delaware.  Governing law means which country/province’s laws apply to the dispute.

What does non-disclosure mean?

A non-disclosure clause is an agreement to keep information shared between the parties confidential, such as sensitive information or trade secrets. This agreement can be written to apply in perpetuity (forever), or only until a certain date or event occurs. A non-disclosure clause may also list the consequences for sharing confidential information. This might come up in a situation where a musician or musical act has a rider demanding M&M’s and that is leaked to the press. While a non-disclosure clause is fairly standard there is an International Movement to have them banned.

What does severability mean?

Your contract should address how a contract is to be interpreted in the future. Most contracts provide for what is known in the contract world as severability. Severability means that the different clauses of the contract can be separated to stand alone and be enforced. A severability clause typically says that any clause that is invalid or illegal can be separated from the rest of the contract. This clause allows the rest of the contract to continue to operate as if the invalid/illegal clause has been deleted. Severability essentially saves the entire contract from having to be cancelled if one clause is illegal.

What does assigment mean?

Your contract may address whether the rights and/or obligations of the parties to a contract may be assigned to someone else. Assignment allows for the  possibility of the transfer of the rights and obligations in a contract to another party. Often, parties cannot transfer their rights at all, or need to give notice before doing so.

How do I resolve disputes with my employer/engager?

Your contract should address what happens in the event of disputes. They can be found under the heading “Dispute Resolution”. These There are many ways to resolve conflicts – first by talking to each other.  In an ideal world, that is a requirement  methods may include mediation, arbitration, or litigation (going to court).

I don´t understand what all the terms in my contract mean, what is “force majeure”?

Your contract should address what happens if there is an unusual and unforeseeable circumstance that makes fulfilling the contract impossible or extremely difficult. Such circumstances are referred to in contracts as a “force majeure”. Force majeure includes natural disasters, labour strikes, or acts of war. The circumstance must be out of the control of all the parties in the contract. If a contract has a force majeure clause, it usually means that the parties can cancel, suspend, or extend the contract without consequences if a force majeure event occurs.

This clause means that, if a force majeure event happens, neither you or the employer/engager will be responsible for any delays or inability to carry out the agreement. The clause also specifies that the artist will be paid for the work they have done so far, up until the force majeure.

How do I know if force majeure applies to my situation?

A force majeure clause will usually list examples for when the clause applies. The list may be exhaustive, which means it includes all the accepted examples of force majeure. Look for language like “force majeure events are”, or “force majeure only includes” to know whether the list is exhaustive.

Alternatively, the list may be non-exhaustive, which means that examples not specifically listed in the written contract may also trigger the force majeure clause. If the clause is non-exhaustive, it will typically include language like “including but not limited to”. The force majeure clause in the Sample Contract is non-exhaustive.

If your contract does not include a force majeure clause, then it will be difficult for you to use force majeure to delay or cancel your contract. However, you should look at the termination and frustration clauses to understand your other options. 

Does force majeure apply to Covid-19?

A force majeure clause only applies to the events listed unless it is a non-exhaustive clause.  Even if an event is listed or the list is non-exhaustive, there may still be room for interpretation. For example, in the Sample Contract (link), examples of a force majeure include sickness and epidemic. However, whether you can use this force majeure clause for COVID-19 will also depend on the specific circumstances and context. The key requirements of a force majeure are 1) inability for either you or your employer/engager to control the event, and 2) inability for either to foresee or anticipate the event. COVID-19 would likely not count as a force majeure in 2022 because both you and your employer/engager should be expected to have foreseen any COVID-related issues.

Do you have a sample contract or Letter of Agreement written in plain English that I can refer to?

Thankfully, the folks at Rumble Theatre in Vancouver created this handy template. This template also includes “The Five Tenets of Open Access” from An Accessibility Manifesto for the Arts by Carmen Papalia.

Additional Resources

Need more specific help or information? Click here to fill out and submit a Performing Artists Legal Intake Clinic intake form.