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Bob K

Deal Memo after the shoot

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Anyone been required to sign a deal memo after the shoot?  I did a one-day corporate shoot based on a simple agreement reached in a phone call and subsequent email:  day rate, call to wrap, gear rental, OT rate, parking reimbursement.  After I sent an invoice I was told to sign a 7-page Deal Memo heavy in legalese that "supersedes all prior agreements."  Here in the hinterland I rarely see a deal memo at all.  What are your thoughts?  A deal memo is a contract.  When do you normally see it?

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ALWAYS before. No exceptions. Do not sign it.

 

*On the NY union stuff, it's on the first day of the shoot or prep/scout, but the point is, it's at the beginning of the process, not after you're done.

 

Sent from my SAMSUNG-SM-G891A using Tapatalk

 

 

 

 

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If the agreement they want you to sign reflects the verbal deal you made then whatever, although you might patrol the rest of the legalise and see if you are cool with it all (like watch out for requirements that you insure/indemnify/etc THEM and agree that you have various forms of insurance which you may or may not have) or stipulations that they don't have to pay you for some long period of time etc etc.  It might just be a lot of NDA and work-for-hire stuff, which is pretty common in corpo-world anymore.

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If the deal memo is in deference to your phone agreement,

Phone producer offer thanks for the memo,

Point out the errors and reach an agreement

 

mike

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One could say I'm in the hinterlands, too, and usually work via casual text, phone or email agreements. But I have been asked a couple of times to sign a deal memo after the fact. I didn't see anything legally dangerous in the memos, so I signed them just to keep things moving and get paid ASAP from the job. Some of these gigs require a lot more paperwork than that! I really dislike having to open, print, sign, scan and email 6 or 7 docs just to get some little one day job!

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I'm concerned because the deal memo's legalese is often vague and subject to interpretation, and it invalidates our previous agreement.  It "supersedes all prior agreements."  I'm told that language is "standard contract language and needs to remain in ... or this contract is fully void."  Yet the only contract we have is the one we made when they booked me.  There was no mention of a deal memo until after they received my invoice (which was for the exact amount agreed upon).  I'm now told it's "customary" for freelancers to sign a deal memo after the shoot.  That makes no sense.

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I'm now told it's "customary" for freelancers to sign a deal memo after the shoot. 

It might be customary for them because they're habitually disorganized. And to be fair, it could be the person who contacted you is perfectly organized but people higher up in the organization aren't. Happens a lot (so does buckpassing, so who really knows who's to blame...sure seems like you aren't).

 

Sure seems to non-lawyer me that you and the company agreed to a contract and you performed your obligation. Time for them to pay up. Brief background written by a lawyer:

https://www.nolo.com/legal-encyclopedia/contracts-basics-33367.html

 

They're now trying to make changes to your existing contract. How hard do you want to push? How pigheaded are they (and more properly, their lawyer)? Probably best, even if you don't want to work with them again, is to come off as a good guy so they don't slag your rep to others.

 

I do a fair amount of journalism and writing/producing where I'm handed grim contracts asking me to indemnify multi-billion-dollar organizations, and this is in situations where there really could be a lawsuit. I have insurance, but my insurer doesn't want me taking on the burden of possible frivolous lawsuits from cranky rich people/companies (think of Peter Thiel's various lawsuits). So I'm hyper cautious about this stuff...and that caution spills over into my regular hired-hand audio work and probably makes me more cautious than I need to be. But still. 

 

If their longer (and frankly new/proposed) contract clearly includes all the terms you agreed to in the original deal memo, great. But as Phil points out, look out for bummer indemnification language, ways for them to delay payment, and all that. If you see anything you don't like, cross it out. Since they don't want you to cross out the "supersedes all prior agreements" phrase, make sure you only agree to what you want to agree to. Or only cross out what really freaks you out (indemnification, no payment until they finish their work, their ability to not pay you if they kill the project, etc).

 

Want to take a stand against THE MAN? Since they're asking/demanding changes to your agreement, you can request a change to your terms (e.g.,- more money to cover the time you're spending dealing with their proposed changes to your established agreement, quicker payment). And seems to me you currently own the copyright to the audio recordings you made since they haven't performed their obligation. But that'll really amplify their crankiness (and get their lawyer all excited...always a bad thing). Or suck up the time and just make sure to cross out the bad or ambiguous stuff. (Note that the whole "cross stuff out" thing will also get their lawyer all excited...)

 

You know the drill: How hard you want to push depends on how much you want to work with them again. And how much time you want to waste on all this.

 

Total drag. Totally common. Sigh. Good luck!

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I want to underscore that these days you really do have to watch out for companies of any size trying to shift any liability to you.  I have had numerous discussions with clients current and potential on this issue, and some see my point of view and some don't.  At this stage of my career I'm not willing to risk working for someone who insists on me signing off on that sort of language in advance: if they send me the paperwork BEFORE the gig I take that to mean they are serious about it.  Cross out what you don't like, send it back, get ready for a conversation about it.  Contracts sent AFTER a gig has been done, where there was a verbal agreement made (hopefully by email or text) are sort of moot, they have to pay you whether you sign their contract or not.

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Verbal contracts have been found to be legal many, many times.  But after that, since you don't live in the same state as the employer, it will be hard to enforce.  No easy small claims court solution.  I am sorry.  If there is any talk about bearing responsibility for legal claims against the production in the "deal memo," DO NOT SIGN IT.  You might not ever get paid, but one day's work is a small price to pay to avoid a potentially huge lawsuit down the pike. 

 

But it is bullsh!t and if you don't get paid in as fast as your verbal deal said you would, pass along the name of the company so no one else will ever need to go through your pain.  And talk to the person you made the verbal deal with and tell him/her how outraged you are by this trickery.

 

D.

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I'm in the same situation right now.  The thing to remember is these contracts are an agreement between two parties, you and them.  You both are agreeing to what it says.  So change or strike out and initial your changes, then you can feel comfortable signing a document that reflects your agreement.  There are several companies that will no longer call me because I wouldn't agree to indemnifying them of their own neglegence, for example.  And there have been several jobs that I have walked away from because they weren't willing to accept my changes to the deal memo.  I'm perfectly ok with all of that, and it allows me to focus more of my energy on the client whom I like doing business with.

My understanding is your emails, phone calls, etc in many states count as a legal contract, unless superceded by a written contract otherwise.  Since they hired your services, and you supplied your services based on the agreement made, the law is on your side.  In reality, having the law in your favor won't actually get you paid if they decide to argue, and for a small job the cost and effort of pursuing it will be far greater than the day rate.

You are going to have to sign something for them to move forward with your payment, I'm sure they want a contract on file.  Not everyone cares too much how complete the contracts are, sometimes it's just the template their lawyers gave them.  

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Thanks everybody, I really appreciate your thoughts.

 

Philip, Jim, tourtelot and Wandering Ear, I've reread the contract and don't see any insurance or indemnification provisions except regarding any unpaid taxes.

 

As to crossing out things, I already did that before I started this thread.  It was a chore since it came as a HelloSign e document.  I had to convert, print, cross things out—including the "supersedes all prior agreements" provision—type notes, scan and email.  It came back as unacceptable.  They want me to fill out and sign the HelloSign e doc as it is.

 

It's good to hear consensus that verbal and email contracts are legal (and I did record the verbal conversation), but I understand that since I'm not a lawyer enforcement is another matter.  (It's too bad we don't have some professional association to represent us in such things.)

 

Phil, the copyright of the audio recordings idea seems like it could be useful leverage.  No pay, I keep the copyright.  They do seem anxious for me to sign this contract.

 

One thing I noticed in rereading their deal memo is a provision that I can't disclose anything about it, or them.  I guess I've already violated that.  Also, I can't take photographs of the production.  I took a couple with my smartphone.  This all gets back to the whole idea that there was no mention of a deal memo or any of it's provisions before the shoot, or on the day of the shoot.  This was first mentioned after they received my invoice.  They then sent it by email and noted that when we wrapped the shoot I left without signing the deal memo (which they had never once mentioned).   Now they insist I sign a contract specifying what I will and will not do on the shoot, after the shoot has already happened.  I don't have a time machine.

 

By the way, on the shoot there was some disagreement about what "I was hired to do."  The producer went ballistic when I politely said I knew what I was hired to do because I had recorded and reviewed the phone call (which she was not part of).  She accused me of committing a "felony" by recording my own phone call.  So this is a concern.  I'm worried the verbal agreement may go out the window if I sign a contract which "supersedes all prior agreements," and even though the deal memo has no specifics and only talks about "the usual and customary services required of a person employed in the position," they could invent a reason to not pay.

 

I'll think this over some more.

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Honestly, this might be a great learning experience for you in your career.  I would suggest that it's well worth your money to pay a lawyer for an hour to review your contract and your situation.  Not because they will solve the situation you are in, they won't, but you will learn an incredible amount just sitting down and talking it through for an hour. At least that has been my experience, and I have happily paid for my education via professionals (lawyers, accountants, etc) many times, and not regretted it once.

As to recording people without their knowledge and permission, that has the potential to get you in trouble, so be careful.  Photo/video laws are a lot more permissive of recording people without knowledge, especially in public, but the laws regarding audio are fairly tight from what I understand.

Truthfully, if there is nothing in the contract that really concerns you, I would sign it and move on with life.  The clause about this agreement superceding other agreements is not something I would personally worry about, but that's just me. I see it on a lot of contracts. The disclosure clauses etc are an every day thing for me.  I sign NDA's almost everyday, and as long as I don't see any off language, I am on board.  I have also had others sign NDA's for projects that I have been in charge of because I want to be in control of when and what is released publicly.  Don't be scared because it's legalese, but do make sure you agree to abide by it.

Just my .02

 

 

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So maybe the production company screwed up procedures that their client is insisting upon? 

 

She accused me of committing a "felony" by recording my own phone call.  So this is a concern.

I'm not a lawyer but I do pay attention to laws surrounding recording events, phone calls, and all that. The Reporters Committee for Freedom of The Press (a great group, btw) says that Minnesota, where I presume you recorded the call, is a one-party consent state. Heck, so is New York: 

"Minnesota bars the recording, interception, use or disclosure of any oral, telephonic or electronic communication by means of any mechanical or electronic device without the consent of at least one party to the conversation."

https://www.rcfp.org/reporters-recording-guide/state-state-guide/minnesota

https://www.rcfp.org/reporters-recording-guide/state-state-guide/new-york

Google around and/or check deeper if you want, but legally, at least, it looks like you're OK.

 

In addition to the recorded phone call, you have the email, right?

 

Anyway, the details you provide (no photos, disclosing the existence of the gig, etc) seems to make a stronger argument for not signing as is. Could they say, "well you violated this new contract by taking pictures and talking about it on jwsound. So we're not going to pay"?

 

"They want me to fill out and sign the HelloSign e doc as it is."

Are you up for saying, "I guess we'll stick with our original agreement, then"?

 

And sure seems like you own the copyright to the audio if they don't pay you (perhaps unless you sign their new contract).

 

Talking with a lawyer will most likely be expensive. 

 

What a complete drag.

 

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Jim, yes I have both the recorded phone call and the email chain.  The gig—standard corporate PR—and services, gear and charges were discussed in the phone call.  I was booked, and I reiterated the specifics of our verbal agreement, in a subsequent email chain.  The company rep agreed to all, including paying my invoice within 30 days.

 

Yes, I am aware that about 10 states have "two-party consent" telephone recording laws, not including MN and NY.  I'm not sure what the practical effects of those laws may be.  I don't think, for example, companies can hide behind two-party consent laws to commit fraud.  I started recording all business calls three years ago after a client falsely claimed that my 10-hr day rate was a flat rate, and I had no record of our verbal agreement.  $1,400 in OT over four days, gone.

 

I just tried Googling "smartphones that record calls" and came up with 15 million hits.

 

Getting back to the Deal Memo, I'm not sure if signing it—after the date of the shoot—could legally commit me to anything on the day of the shoot?  It wouldn't seem so.  But, then I don't know how the HelloSign e doc works, and if its date can be changed without my knowledge to the shoot date.  I'm not even sure if I normally retain a copy of it.

 

I still haven't decided which way to go.  It's troubling that the same person with whom I made the contract now says she will not honor it.  She also says she will pay the invoice if I sign the new contract (which does not incorporate the details of the current contract, and in fact specifically supersedes it.)  This would seem to fall under the old adage "Fool me once, shame on you; fool me twice, shame on me."  On the other hand, could this whole situation be the result of systemic chaos and incompetence?  Definitely.  e.g. the deal memo shows my day rate as my "hourly rate," and specifies I worked 12 hours.  If interpreted literally, I suppose it would obligate the company to pay me 12 times my day rate.

 

And yes, it's a pain.  I only agreed to one production day of work for the specific charge, not one production day and two more days of paperwork.  I do have other commitments to attend to.  All I want is to be paid as agreed.  There's no chance I would ever accept work from this company again.  

 

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Interesting to know about the 1 party consent states.  My state is a 2 party consent state, so I never considered recording my business calls.  As a side note, how do you record them?  Do you have an app that automatically records, or do you manually trigger the recording if you think you might want it?

It's unfortunate that we have to deal with stuff like this.  It seems to happen all to frequently for me.   The company I'm in the same situation as you with had over half a dozen paragraphs I couldn't agree to, including one that required me to report to them Everytime I work for another company that could be considered a competitor.  There is no way I'm reporting every job I do for every production company to this company.

You are your only advocate, and as a freelancer unfortunately we have to stand up for ourselves.  The thing I always remind people is that a contract is a mutual agreement between both parties.  There are some people that it's just not worth doing business with.

I hope you can resolve this without too much further effort.  Best of luck.

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2 hours ago, Bob K said:

  But, then I don't know how the HelloSign e doc works, and if its date can be changed without my knowledge to the shoot date.  I'm not even sure if I normally retain a copy of it.

Hellosign maintains a provenance of IP addresses of who accessed it and when. This is appended to the signed version of the PDF. Once you sign it, you can request a copy for your records.

 

On 9/20/2017 at 7:13 PM, Bob K said:

Anyone been required to sign a deal memo after the shoot?  I did a one-day corporate shoot based on a simple agreement reached in a phone call and subsequent email:  day rate, call to wrap, gear rental, OT rate, parking reimbursement.  After I sent an invoice I was told to sign a 7-page Deal Memo heavy in legalese that "supersedes all prior agreements."  Here in the hinterland I rarely see a deal memo at all.  What are your thoughts?  A deal memo is a contract.  When do you normally see it?

 

This is why I never do anything without a potential client signing my deal memo up front. If they balk for whatever reason (don't like the terms, corporate policy forbids them, etc.), I tell them I'm not a good fit and refer some colleagues to them. The peace of mind from having them agree to my terms is worth missing a few paydays.

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17 minutes ago, syncsound said:

This is why I never do anything without a potential client signing my deal memo up front. If they balk for whatever reason (don't like the terms, corporate policy forbids them, etc.), I tell them I'm not a good fit and refer some colleagues to them. The peace of mind from having them agree to my terms is worth missing a few paydays.

This is a good policy.  What do you do when they call you the afternoon before the shoot?

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3 hours ago, Bob K said:

Jim, yes I have both the recorded phone call and the email chain.  The gig—standard corporate PR—and services, gear and charges were discussed in the phone call.  I was booked, and I reiterated the specifics of our verbal agreement, in a subsequent email chain.  The company rep agreed to all, including paying my invoice within 30 days.

 

Yes, I am aware that about 10 states have "two-party consent" telephone recording laws, not including MN and NY.  I'm not sure what the practical effects of those laws may be.  I don't think, for example, companies can hide behind two-party consent laws to commit fraud.  I started recording all business calls three years ago after a client falsely claimed that my 10-hr day rate was a flat rate, and I had no record of our verbal agreement.  $1,400 in OT over four days, gone.

 

I just tried Googling "smartphones that record calls" and came up with 15 million hits.

 

Getting back to the Deal Memo, I'm not sure if signing it—after the date of the shoot—could legally commit me to anything on the day of the shoot?  It wouldn't seem so.  But, then I don't know how the HelloSign e doc works, and if its date can be changed without my knowledge to the shoot date.  I'm not even sure if I normally retain a copy of it.

 

I still haven't decided which way to go.  It's troubling that the same person with whom I made the contract now says she will not honor it.  She also says she will pay the invoice if I sign the new contract (which does not incorporate the details of the current contract, and in fact specifically supersedes it.)  This would seem to fall under the old adage "Fool me once, shame on you; fool me twice, shame on me."  On the other hand, could this whole situation be the result of systemic chaos and incompetence?  Definitely.  e.g. the deal memo shows my day rate as my "hourly rate," and specifies I worked 12 hours.  If interpreted literally, I suppose it would obligate the company to pay me 12 times my day rate.

 

And yes, it's a pain.  I only agreed to one production day of work for the specific charge, not one production day and two more days of paperwork.  I do have other commitments to attend to.  All I want is to be paid as agreed.  There's no chance I would ever accept work from this company again.  

 

If the written deal doesn't contain anything onerous (as has been covered above), doesn't commit you to any future  obligations and reflects the deal you made for the job you've already done then I say sign it and get your money.  Yes--they are weasels, and you'll remember that, while mentioning that if there is a next time you'd like to see any docs they need signed BEFORE the job.  If the new deal is attempting to slide in some new wrinkles then you'll have to escalate.

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1 hour ago, Philip Perkins said:

If the written deal doesn't contain anything onerous (as has been covered above), doesn't commit you to any future  obligations and reflects the deal you made for the job you've already done then I say sign it and get your money.  Yes--they are weasels, and you'll remember that, while mentioning that if there is a next time you'd like to see any docs they need signed BEFORE the job.  If the new deal is attempting to slide in some new wrinkles then you'll have to escalate.

But, the deal memo only reflects the charges we agreed upon, not anything about the services and equipment that we agreed upon.  Those specifics are replaced by the generic phrase "the usual and customary services required of a person employed in the position."  The specifics of our agreement are my only defense against an angry producer who disputed what I was "hired to do."    

 

Wandering Ear, there are many apps for smartphones that automatically record calls.  Some phones are sold with them pre-installed.  For landlines I manually trigger a recorder.  JK Audio makes professional gear.  Their QuickTap is a simple way to connect.

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3 hours ago, Wandering Ear said:

This is a good policy.  What do you do when they call you the afternoon before the shoot?

Same thing. My deal memo is an e-signable document, sent through Hello Sign, which can be signed on any device connected to the internet at any hour.

 

I never take a job without a COI and a signed deal memo. On occasion, I'll accept a COI emailed to me  the morning of before I land on set (i.e. east coast insurance company, west coast call time).

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On 9/23/2017 at 4:04 PM, Wandering Ear said:

As to recording people without their knowledge and permission, that has the potential to get you in trouble, so be careful.  Photo/video laws are a lot more permissive of recording people without knowledge, especially in public, but the laws regarding audio are fairly tight from what I understand.

 

 

On 9/23/2017 at 3:42 PM, Bob K said:

By the way, on the shoot there was some disagreement about what "I was hired to do."  The producer went ballistic when I politely said I knew what I was hired to do because I had recorded and reviewed the phone call (which she was not part of).  She accused me of committing a "felony" by recording my own phone call.  So this is a concern.  I'm worried the verbal agreement may go out the window if I sign a contract which "supersedes all prior agreements," and even though the deal memo has no specifics and only talks about "the usual and customary services required of a person employed in the position," they could invent a reason to not pay.

 

 

On 9/24/2017 at 6:03 AM, Bob K said:

Yes, I am aware that about 10 states have "two-party consent" telephone recording laws, not including MN and NY.  I'm not sure what the practical effects of those laws may be.  I don't think, for example, companies can hide behind two-party consent laws to commit fraud.  I started recording all business calls three years ago after a client falsely claimed that my 10-hr day rate was a flat rate, and I had no record of our verbal agreement.  $1,400 in OT over four days, gone.

 


I did a quick google to check, and yup, you're all good:
https://jux.law/minnesotas-wire-tap-law/

Smart move! Made me wonder about my own country, looks like I'm all good here too:
http://www.lawspot.org.nz/privacy/can-i-surreptitiously-record-a-conversation-if-i-want-proof-of

Hmmmm.... tempted to do this myself, as I've had a disagreement myself in the past between what they said on the phone and then what they actually tried to pay me for. 

On 9/24/2017 at 6:03 AM, Bob K said:

I still haven't decided which way to go.  It's troubling that the same person with whom I made the contract now says she will not honor it.  She also says she will pay the invoice if I sign the new contract (which does not incorporate the details of the current contract, and in fact specifically supersedes it.)  This would seem to fall under the old adage "Fool me once, shame on you; fool me twice, shame on me."  On the other hand, could this whole situation be the result of systemic chaos and incompetence?  Definitely.  e.g. the deal memo shows my day rate as my "hourly rate," and specifies I worked 12 hours.  If interpreted literally, I suppose it would obligate the company to pay me 12 times my day rate.

 


I sense an opportunity here to get 12x pay ;-) mwhaha! :

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Update:  I stood my ground, declined to sign the deal memo, and got paid in full within 30 days.

 

After repeated reminders to sign the deal memo including the "supersedes all prior and contemporaneous written or oral agreements and understandings" clause, and statements that my invoice could not be processed without it, I sent the following:

 

"I hope you understand that you have entered into a legal contract with me.  That contract is contained in our email chain beginning ***.  It includes the specific services and equipment to be provided, and the specific charges, and obligates *** to pay my invoice in full within 30 days.  Payment of $*** is due by ***."

 

Several days later I received a check, dated the same day as my email.

 

I see a couple of possibilities.  Either someone "upstairs" decided the email contract was valid and needed to be paid (overriding the associate producer who was still insisting on the deal memo), or Accounting paid the invoice routinely without knowing about the unsigned deal memo.  Either way, it's a relief.  I treated my self to a nice bottle of wine that evening.

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Fortunately I have always been paid in ten years, but a producer friend of mine learned this lesson about law: Yes, the law might be totally on your side, but if the other side is a big company with an army of lawyers, and they just choose not to pay you, for whatever reason, what are you gonna do? In the case of my friend the client (big agency) offered to pay half of what they had agreed on before, and said if he didn't like it he could go to court, but then they would pay zero. Since he couldn't afford the latter, he ended up just taking the money they offered and take a loan on his house to pay the people who had worked for him.

 

Our job is small time, our rates peanuts to most productions (compared how much money gets senselessly burned everywhere in big companies), so I guess we're pretty safe in general to get paid. Well, my experience.

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