6-9-06
Trust Everyone, But Cut the Cards
At the end of March, I spoke on “Freelance Lighting Design Economics” at the United States Institute for Theatre Technology’s Annual Conference. I always allow plenty of time for the question and answer session when I give a talk, since the questions invariably head off in unexpected and interesting directions. And that happened here. Most of the questions from this room full of fledgling designers and university faculty were about contracts.
The word itself seems to be scary, evoking visions of Mephistopheles holding parchment and a blood-dripped quill in front of Faust: “Sign here and be forever damned.” But you’re not making a deal with the Devil. You’re only working with a theatrical producer, and despite the rumors, none are Satan incarnate. (Sharks or piranha, maybe, but not Satan.)
What It’s About
A contract simply provides a written record of what two or more parties agreed to. Memories grow fuzzy as time passes, but what’s on the page does not. The parties can refer to it as needed, and it is the primary tool an outsider (such as a judge or arbitrator) uses to discern the parties’ intent should there be a disagreement or lack of clarity.
The essential requirements for a legally valid contract are minimal: two or more parties; each party gives something; each party gets something; and each party agrees to the terms. You can often summarize the terms in a sentence: Jack will design the lights for Jill’s production of Down The Hill for a fee of $1,000. Just add some dates for design deadlines, opening, payment and such, and you’re done.
Or are you? The omitted details can get you in trouble. Try to think: What could be misunderstood? What could go wrong?
If Jill’s theatre is very small, she might expect the lighting designer to also hang and focus the lights and run the light board. Jack might be expecting a larger-theatre situation, where there is a separate master electrician, load-in crew and board operator. One of them will be severely disappointed, and both angry, when they find out they did not really agree on what was to happen.
Suppose a light falls on someone’s head, or overheats and starts a fire. Who’s responsible? An experienced lighting designer will insist on a provision which, paraphrased, says “I just make art. Somebody else has to do the engineering and make it safe.”
How about budgets? If the lighting designer wants trusses full of moving lights, and the producer has budgeted for 12 ellipsoidal spotlights and a few PAR cans, that’s trouble.
What happens if the production is canceled? Extended? Moves to another theatre? Tours? Goes to Broadway? (Hey, we can dream.)
And so on.
The “Standard” Contract
Folk wisdom has it that anytime someone drawls at you, “Well, I’m just an old country boy, but it seems to me…” you’d better put your hand on your wallet, ‘cause you are about to get taken. Prudence is similarly called for when someone hands you a contract and says, “It’s just a standard contract.” That contract will inevitably be one-sided, addressing all of his detailed concerns but missing some of yours. Even if the person creating the contract tries to be fair, he can only guess at your concerns unless you speak up and tell him.
Don’t be shy about this. Actors and designers almost invariably underestimate their bargaining strength. You may not get everything you ask for, but if you ask for nothing, you get nothing.
Some folks try to be underhanded when drafting a contract, or believe they are entitled to whatever what they can get away with. They will deliberately make provisions unclear or difficult to understand. American contract law anticipates this, providing that ambiguities are always resolved against the party who wrote the agreement. That is great in court, but not much help in mid-tech-week. Look for these potential problems, and try to head them off.
Union Rules
A union representing a group of workers can negotiate with one or more employers about working terms and conditions for that union’s members, or in some cases all the employees of that company. If they succeed, the result is known as a collective bargaining agreement (or “CBA”). You may have seen an Actors’ Equity rule book, which is really just the appendix to the CBA. If you haven’t, you should go to the Equity website and download one. The other theatrical unions (designers, directors, stagehands, musicians, and so on) all have similar materials, though not as widely circulated.
These CBAs set out a broad outline of expectations and requirements for each side, and certainly take much of the angst out of contract negotiations. At the same time – as any of the unions’ business agents will tell you over and over – these are minimums. Nothing prevents you from negotiating a better deal.
Getting paid above scale is only one way you can make a better deal. Jack, the lighting designer, should ask for a provision requiring the producer to maintain the design after opening – that is, don’t rewrite the cues and don’t cut half the equipment to save on rentals. (It’s been done.)
Travel expenses is a common area for better terms. Designers may ask the theatre company to pay the $10 a day your hotel wants for high speed Internet access. CBAs typically provide that travel will be by scheduled airline. One lighting designer routinely asks for a provision specifying jets (no turboprops) and only nonstop flights where they exist on a suitable schedule. He has done that ever since a company asked him to fly from Cincinnati to Chicago via Atlanta, with a six-hour layover there, because that was what their “official airline” would provide.
You’re Not An Expert
People in the arts tend to be more articulate and literate than average. You can read a contract, and mostly make sense of it. Then again, a trial lawyer could recite “To be, or not to be…” and mostly make sense of it. If you are not really sure of what you’re signing, get expert help.
Contracts may not be fun, but they are a necessary part of the machinery that lets art happen. Think twice before accepting a project on a handshake even, or particularly, with friends. If it is a company you have worked with for many years, and you are absolutely confident of their ethics, integrity and fundamental fairness, maybe; of course, those companies also make contract negotiations quick and easy. Otherwise, listen to the unions even if you are not yet a member: no contract, no work.
Are there money or tax questions you would like to see discussed in this column? Let me know, at 2835 N. Sheffield, Suite 311, Chicago, IL 60657, or call 773/525-1778 (888/525-1778 toll-free outside the Chicago area) or e-mail greg@gregmermel.com.
Greg Mermel is a certified public accountant whose clients in the arts range from individual performers to major theatre companies and suppliers. He has also been known to produce theatre.