Photo: Mr. Spring and Tulga Photo Credit: Moto Photo Arthur Edward Ortiz
“Any time there is an agreement between two people to do something, that agreement is a contract. The importance of the paper is to prove what they agreed on,” explained Gordon Firemark, entertainment attorney in Los Angeles. He represents all sorts of entertainers, from comedians, magicians and clowns to theater, TV and film actors, and he has been a theater buff his whole life as well. He enjoys helping performers so much that he does a blog and podcast on entertainment law issues. Although he maintains that a written contract is the preferred way to outline everyone’s expectations, he also explained something interesting, that even an email, though not a legal document, is sometimes used as an informal contract, outlining the details of the offer and the negotiations leading up to acceptance.
Sometimes, he admitted, that is how jobs, especially smaller one night shows, get booked. But having an official contract, especially with a lawyer, agent or union working on your behalf is generally a more thorough way to assure that you get what you expected out of longer engagements.
So, when is it important to have a contract, and when is it OK to just negotiate details on your own? What do you do if you don’t understand parts of it? I spoke to two entertainment lawyers, and two circus professionals to get their best advice and tips on how to navigate the rocky straits of negotiation so you can sign on the dotted line with confidence and get back to the business of training and performing.
Why have a contract?
How many times has someone handed you a long document and asked you to sign it and rather than delay the deal- you sign without reading everything? Well, that may work when you are renting a kayak, but when you are making a plan to spend an evening or a year in a company’s employ, you really need to know what is expected of you and what will be provided to you.
A contract exists for two obvious reasons; to protect you and the employer in case either party is not living up to their end of the deal, and to help everyone understand what the deal is to begin with. This is why you need to actually read the contract, explains Megan O’Malley, a musician with Ringling Bros. and Barnum & Bailey's Red Unit, currently touring with Circus Xtreme.
“If you are dealing directly with the circus via a personnel manager or HR department, it is up to you to ask questions and discuss your contract terms. If your contract is being handled through a union or an agent, make sure that your representative is aware of your desires so that he/she can negotiate for you effectively.”
Peter Strand, bass player, one time carny and current partner at the entertainment, media, and intellectual property law firm Leavens, Strand and Glover in Chicago, has a another useful reason why contracts can help performers:
““While negotiation is the tool to use to try to improve your contract, it’s also an information gathering tool, especially if you are working with a new circus.
How do they conduct themselves in the negotiation?
How do they respond to your questions?
How do they respond to your proposed revisions?
What their attitude is towards the whole concept of negotiation will tell you a lot about what they are going to be like to work with. If they’re prickly, snappy and uncooperative, then that’s what the tenure is going to be like with the circus while you’re with them.”
Peter also stresses focusing on the practical aspects of your contract, “You want your obligation and your rights to be as specific as possible and visa versa. Some moving parts you need to know are: the pay, how often you’re paid, expense reimbursement, per diem, accommodations, length of performances, number of performances per day, length of contract and how it can be extended, etc.”
Who understands contracts?
Contracts can be complicated, but you don’t have to go it alone. Lawyers and agents make it their business to understand contracts and negotiate them for their clients. Trusted colleagues and industry publications can give you some perspective about what the industry standards are and professional associations (like En Piste in Canada, Circus Now in the US and Circus Next in Europe) often share important industry news. Gordon Firemark says if there are holes in your knowledge, an agent will have the experience to help, because “that’s really the role of the agent—to not just find a job, but to document that the job exists and under what circumstances.”
Sometimes an agent can even preserve your relationship with an employer. Peter Strand explains “The advantage with the agent is that he can be the hard guy doing the tough negotiations. It doesn’t then impact your relationship with the circus because you haven’t been difficult— the agent has. Of course, you have to pay an agent.”
But after you have consulted colleagues, your agent and a lawyer, the responsibility is still yours to understand what you are agreeing to, because none of those people can sign it for you and they will not experience the plusses or minuses of the deal as you will. Peter Strand’s advice is; “Know the industry norms, and know what kinds of contracts are out there, what’s the pay range, what’s the hours, and how often are you expected to rehearse and perform. You need to know your business.”
Of course, each individual and their employment circumstances are unique, so the information in this article should not be misconstrued as legal advice. It is a sampling of information and tips that have helped artists in the industry to understand their own situation better.
Also of importance is the fact that laws vary in each state and country regarding employment, which is one reason why you should consider having a local representative, especially when signing a contract with a foreign circus whose language isn’t your primary one. Gordon says it’s simple, “If you are a Ukrainian performer coming to the States and you aren’t fluent, you want an American agent or lawyer representing you here. Ask your agent from your home country to make an arrangement for you.”
When is it OK to sign on the dotted line?
Can you ask for too much and kill the deal? “There is always a way to reel things back in and reopen discussion, but really what this comes down to is knowing the business you are in… and not being afraid to aim for the reasonable high end of the spectrum. Your quote from your last job is always a good starting point. If you had a good job last year, asking for a 10 increase is not unreasonable, even 20%-25% isn’t unreasonable,” says Gordon Firemark.
Peter Strand has a slightly different perspective on it, “You have to figure out what the intangibles are for this deal; is this a better circus than you’ve worked for before? Is even the lowest amount of money they offer better than what you’ve been paid before? In other words, is this a step up and on to the path where you want to be ultimately? Sometimes you have to take a hit to get there. You may have to work longer, or for less pay or do extra performances, but the prestige of that circus may be a resume builder that makes it worthwhile.”
Megan O’Malley takes a balanced approach, “When discussing employment and negotiating terms, it's important to understand that the employer/employee relationship is supposed to be beneficial to both parties. Your employer wants to use your abilities for the benefit of the company. You want to earn a living and advance your career. It's a "give and take". If you try to "take" too much without "giving" enough in exchange, the company may find that what you offer is not worth what you're demanding, and decide to look elsewhere.”
But would a lawyer ever advise negotiating your own contract without a lawyer or agent? Gordon Firemark admits it happens, especially for shorter engagements, but he says it’s still important to establish an understanding, “For the short term gigs, you can’t afford to have a lawyer look at every deal. If you are going to be doing those one-offs often enough, maybe you want to create your own contract form, an ‘engagement agreement’, so when someone calls to hire you, you can say ‘ Let me send over my agreement.’ And it might be worth hiring a lawyer just to write up your standard form.”
Mr. Spring, an independent circus contractor, with 20 years of acrobatic experience, uses one such engagement agreement for his sort term corporate gigs. He explains how he uses it, “Contracts can pass the liability on to the appropriate person. I can put "in writing" (which is an important detail) the things I need to do my job, such as; a place to stretch, change, rest, put my stuff, parking validation, snacks and drinks, performance time and load in time. It becomes even more crucial on tours where you sign up for weeks, months or even years. Once you start and that contract is signed, that’s it!”
In the end, whether you decide to hire an agent or a lawyer to assist with your contract, or you negotiate your own terms, the onus is on you to thoroughly understand the arrangement. Nevertheless, Circus Promoters is one of the resources available to help you become an independent circus professional. One way we do this is by helping to improve professional circus literacy by creating a professional series about the workings of the circus industry. We also work to connect and match established employers with experienced, high level performers in order to improve the outcome of successful partnerships.
The Nitty Gritty—Lawyer’s Tips for negotiating your contract
Gordon’s Tips
Know whether you are signing an employer agreement or as an independent contractor—there are different plusses and minuses for each involving taxes, liability and benefits
Think about insurance needs; health insurance and disability insurance are important factors in deciding which contract would be better for you
Look out for "Arbitration Clause"—although it is sometimes a preferable alternative to small claims court, the cost can be prohibitive in some circumstances
Consider copyright protection when appropriate—certain characters and performance routines might be protectable by copyright if original and "fixed" in tangible form. A clown's original routine, for example might be registered as a "pantomime". A particular, original makeup design might also be registrable
Seek a lawyer for more complex scenarios such as long term deals, renewal options and extensions
Peter’s Tips
In the US, employment law is state law. The contract will say which state governs it—usually the state where the circus is incorporated. Those state’s labor laws and workers compensation should apply
In most cases, avoid the “Work for hire” provision, which would mean that the employer owns the copyright for your routine If the contract isn’t in your native language, have it translated. Try the language department at a local university
Resources:
Gordon Firemark Peter Strand Megan O’Malley Mr. Spring En Piste Circus Now Circus Next