Contracts

[Rachel Cameron]

Do you use a contract? I've not so far, but would love to integrate one into my workflow. I've been lucky, but feel that I'm courting disaster.

I'd love to hear some thoughts on this...or get one I can use. PM if necessary.

Rachel

[old school]

I never have but 99% of all my work is union commercials so I doubt it is necessary for me but in the wider world it might be worthwhile.

CrewC

[mikewest]

Here in NZ contracts apply to drama and documentaries

Day work is done on a trust basis with an accepted non union guideline

Talk to your fellow workers

 

mike

[Marc Wielage]

I believe there have been past conversations here on deal memos, so if you do a search on that you'll find them.

[Rachel Cameron]

Yes there was, and thanks guys, for all the goodwill. I copied a bunch of advice to my desktop. Some of those links to contract downloads were now dead ends, so I think I'm going to keep looking about for something that works, have an entertainment world attorney look it over, and if anyone wants it, I can post it here. 

[Wandering Ear]

I was doing a contract for a while, now I just have rental terms and conditions.  When you agree to the rental rate you are also agreeing to those terms.

I would highly recommend the guidance of a lawyer for this, it was very helpful to me.

[syncsound]

I was doing a contract for a while, now I just have rental terms and conditions.  When you agree to the rental rate you are also agreeing to those terms.

 

Same. I email a PDF of my rate card. The client checks what they want (like a menu), signs and returns it. Once I have that, it becomes the deal memo. Easy peasy. 

It tool a while to build. Essentially, it became this: every gig I came back from kicking myself about forgetting a particular term (per diem, etc), I'd add that to the rate card. Mine's 1.5 pages, but it covers most use cases. 

Edited August 26, 2015 by syncsound

[Miles Anderson]

Same. I email a PDF of my rate card. The client checks what they want (like a menu), signs and returns it. Once I have that, it becomes the deal memo. Easy peasy. 

It tool a while to build. Essentially, it became this: every gig I came back from kicking myself about forgetting a particular term (per diem, etc), I'd add that to the rate card. Mine's 1.5 pages, but it covers most use cases. 

can we have a look at some non-personal version of this? (i.e., take out all your contact info or something) and upload it as an attachment here? 

I'm curious to see what you've gathered, and I'm sure there are others too.

thanks

[Rachel Cameron]

 

 

can we have a look at some non-personal version of this? (i.e., take out all your contact info or something) and upload it as an attachment here? 

I'm curious to see what you've gathered, and I'm sure there are others too.

thanks

+1

[Rachel Cameron]

For anyone who is interested, I've engaged a small legal team who's willing to help with this. If I can come up with what should be on it, they'll come up with the legalese. If Jeff thinks it's prudent, it can be here as a .pdf. We can then keep it up to date, tweak it for other jobs, etc.

To be clear: this document would not be for the trustworthy companies who pay fast (no worry there), but the other types...

So I need input: (personal names and company names omitted please) Contracts and DM's you've used in the past, that might need updating or not. Clauses, suggestions, worries, war stories, horror stories, the Old No. 5, client complaints, bitchin', and other sundry stories that might have gone better if the deal was papered. 

What's being suggested by the legal team:

"...a two page document, with the terms of the agreement on the first page and a standard contract on the second page."

"...[charting a] relatively high level list of desiderata, i.e., what are the have-to-haves, the nice-to-haves, and the must-not-haves." 

"...that we effort to limit the final product to something that will fit on the front and back of a single sheet of letter-sized paper, without having to resort to 6-point type and 0.25-inch margins."

This first page would be a document that clearly lays out the parameters of the deal (DM), like day rate, overtime rate, what the production covers, and the issue of gear damage/insurance, pay date deadlines, expendables, fuel/milage, meals, travel/hotel/lodging, IMDb/credit name, gear package, beer package, federal ID, full information on the production company, right to terminate the agreement, coverage of any rental agreements..etc.

The second page would be the contract. 

Of course, it would be best to start with something that already exists, and improve on that.

PM me if you have a document you're willing to help out with. Add to this thread here, with any input. I'll get compiling.

 

[Marc Wielage]

I had a bizarre thing happen sometime back where a company wanted to hire me freelance for a project and they had a 14-page document that was basically non-disclosure, non-disparagement, etc. etc.  What was baffling to me was there was a condition buried in the legalese that basically said, "if you're late on delivering your work, you'll have to pay us any losses we incur." I rejected the document out of hand and told the people, "hey, I've signed NDA's with ABC, NBC, Disney, Lucasfilm, Kodak, Technicolor, and a slew of other companies and never had this condition. Just put in there, 'you agree to work for X days, you'll put in a best effort, we'll agree to pay you Y dollars, it's due on this date, we own the finished project, and you can't show it to anybody or talk about it to anybody."

That's pretty simple. But they did not agree and I chose not to work for this particular company. It was an odd experience.

Edited August 27, 2015 by Marc Wielage

[Rachel Cameron]

+1 and duly noted!

[David Waelder]

There's a "gotcha" factor in submitting contract forms to a production company.

Contributors on this forum have occasionally discussed sending a message to the company informing them of the terms and conditions that are an expected part of employment. But if the company fails to respond positively, a court would probably regard that set of terms as rejected. The company must affirm your terms for them to be binding.

If one does submit a summary of agreement, it's important to get a positive response from the company.

David

 

[sarcanon]

Well, I wouldn't consider this a "gotcha", because the contractor presumably went ahead and performed his/her services and handed over the audio files without waiting for affirmation from production. You can't furnish services to someone and expect them to be subject to terms you unilaterally assumed would attach.

You're absolutely correct, though, that without getting the other party's express assent to the terms, any paperwork you submitted to them would be pretty much worthless [*]. It might be relevant, but you'd have to go to court to make that argument, and at that point, you've already lost, practically speaking.

[*] Unless you've worked for them before, and they've accepted your terms previously. Then you have what's known as "course of dealing", and the previously agreed-to terms would likely carry forward.

[Rachel Cameron]

I appreciate this, guys. Good points. I feel that many of us might be able to benefit from this, if I can keep this moving in a forward direction.

[syncsound]

can we have a look at some non-personal version of this? (i.e., take out all your contact info or something) and upload it as an attachment here? 

I'm curious to see what you've gathered, and I'm sure there are others too.

thanks

Sure:

https://drive.google.com/file/d/0B4YnFWCYisiGdlVxUjQ3Y1J4X28/view?usp=sharing

I'm located in Portland, OR, so the rates are competitive for the PNW.

[Rachel Cameron]

Thanks for the help Christian.

[jozzafunk]

I had one this past week that stipulated a 100000 GBP fee for disclosure of concepts as well as a clause saying overtime would be worked as required without additional payment - this was 2 days into the shoot - I refused to sign it and have since walked from the gig - 1st time, appalling gig - I sat there and watched them make payment before I'd hand over the audio - even though they had a decent mix to cam/split, but they didn't seem to realize that ... I've never seen anything like it.

I had more than an inkling this gig might turn out this way - it was definitely one to insist on a contract up front

 

Edited August 31, 2015 by jozzafunk

[Wandering Ear]

I had one this past week that stipulated a 100000 GBP fee for disclosure of concepts as well as a clause saying overtime would be worked as required without additional payment - this was 2 days into the shoot - I refused to sign it and have since walked from the gig - 1st time, appalling gig - I sat there and watched them make payment before I'd hand over the audio - even though they had a decent mix to cam/split, but they didn't seem to realize that ... I've never seen anything like it.

I had more than an inkling this gig might turn out this way - it was definitely one to insist on a contract up front

 

Flat day rates are a deal breaker for me.  Overtime is paid as worked.

I recently saw a contract given to me after work start (too late) that stated I had to do reshoots for free if at the sole discretion of the producer, the producer was unhappy with the proceeds.  No thanks.

[syncsound]

Flat day rates are a deal breaker for me.  Overtime is paid as worked.

I recently saw a contract given to me after work start (too late) that stated I had to do reshoots for free if at the sole discretion of the producer, the producer was unhappy with the proceeds.  No thanks.

Yup. My card states no flats or half days.

[Dan Rose]

Followed Rachel's link here from the "Client refusing to pay" thread. I don't know how well this would fly with clients, but how about retaining ownership of the copyright until paid in full - the copyright assignment turned over on receipt of payment, basically. It's less drastic and less aggressive than holding on to the physical files/tapes/drives/whatnot, but still allows you to register the copyright within 3 months of publication and pursue statutory damages and attorney's fees. And that means you could likely get an attorney on contingency, since the infringement would be pretty cut and dried.

A savvy client might balk at the clause, but a savvy client is also less likely to screw you on payment, so if they object, maybe that's justification to remove it.

[Jeff Wexler]

Every deal memo I have ever signed before starting any job has always had some language regarding how we do not own ANYTHING in relation to the content we record for the employer --- I think it is somehow implicit in even the loosest structured employment arrangement in our industry. I think it is possibly this fact that has caused people, on occasion, to hold the actual physical media their labor has produced until such time as they are paid.

[sarcanon]

There are two very different scenarios here.

The situation Jeff describes is an employer-employee relationship, and if the mixer is paid wages and is otherwise treated as an employee, then even in the absence of an express contract provision stating that the recordings are "works for hire", the employer has a pretty solid case for ownership, since the work will have been created "in the course of scope of employment" (language from the relevant section of the Copyright Act). The inclusion of the clause in the deal memo that Jeff mentions merely confirms this situation and pretty much renders it irrefutable. It's not necessary, but helpful to the employer. In this case, the copyright belongs to the employer from the moment of creation. Of course, given that the mixer's compensation is in the form of wages, there are all kinds of other legal and statutory remedies available to the mixer if the employer is slow to pay. Thus, the loss of the copyright as a lever for payment is not so much of a problem. Statutory damages for infringement are nice, but the procedures for prosecuting wage theft strike me as less troublesome.

If, on the other hand, the mixer is an independent contractor and does not sign any paperwork confirming the work-for-hire arrangement, then the copyright belongs to the mixer. This is a fundamental tenet of copyright law. Authors of creative works own the copyright in the works they create. N.B. this is merely the copyright in the recording, not in the underlying performances. This means the mixer would be ill-advised to attempt to commercially exploit the recordings. Of course, this is not usually the mixer's goal. He/she only wants leverage to guarantee expeditious payment in full. Of course, most producers are idiots and assume they own the copyright for work created by their independent contractors. They suffer under this misapprehension at the peril.

However, a reasonable and straight-dealing mixer who provides his/her own paperwork should address this situation by making it clear in their own deal memo that they are indeed the owners of the copyright and will only surrender that copyright upon full and complete payment of any monies due under the deal memo. No amount of whining or wishful thinking by a producer can change the operation of the Copyright Act, nor would striking the language from the deal memo. Not that it should be the mixer's job to educate the producer, but I prefer to deal with these issues head on. If the producer is insistent on removing the language, then this would be a clear signal to me that I can look forward to some gamesmanship when the bill comes due. No producer who intends to pay his bills can reasonably object to such a provision, since, provided he pays in full and on time, he gets what he bargained for, and everyone walks away happy.

 

 

Edited September 17, 2015 by sarcanon
Fixed typos

[Philip Perkins]

Re general deal memo stuff--I recently had a producer send me a deal memo at the start of a holiday weekend, when work was to start the first day following the holiday--I had no idea this was coming.  There was a lot of stuff in the contract I didn't like, and yet more that I didn't really understand.  I told the producer that since he'd had his lawyer draw this doc up, I guess I'd have to have a lawyer look at it before I signed.  He was adamant that it had to be signed before work could begin, which I wasn't going to do.  In addition to language re: the frequent producer hallucination that they can duck Workman's Comp because they say I'm a contractor, there was also specifically no liability and no equipment insurance, as well as a long paragraph that I didn't understand but that seemed to indicate that by signing I was ok with the producer being able to use the terms of the contract to come after me but that the reverse was not true, or only true to a very limited extent.   We argued right up to the night before the gig, when I finally sent him a marked up version of the doc that I was willing to sign right then (w/o legal help on my side) and start work, or…call your backup-soundie I guess.  Fortunately reason prevailed and the job was done, but not without a certain abiding antagonism between myself and this producer.   I doubt he'll call me again ("no one else had a problem with this contract" etc) and that's probably ok.

p

[Rachel Cameron]

Every deal memo I have ever signed before starting any job has always had some language regarding how we do not own ANYTHING in relation to the content we record for the employer --- I think it is somehow implicit in even the loosest structured employment arrangement in our industry. I think it is possibly this fact that has caused people, on occasion, to hold the actual physical media their labor has produced until such time as they are paid.

What Jeff said. DP's I've worked for would complain about clauses in some of the larger companies' contracts protecting the recorded content in other galaxies and universes. I was never sure if they were joking or not.