• tools
• articles
• brochures
• downloadable tools

On the subject of contracts, they say to always get something in writing. These words of wisdom are frequently dispersed, and yet, everyday we hear horror stories about those unfortunate folks who decide to forego it. In today's savvy market-place, contracts have become common place, however, more often than not, an artist will operate on a handshake deal (gasp), or a producer will download a contract from the Internet and sign on the dotted line (wince). So why is it that people fail to put deals on paper? Why will they opt for a standard form agreement rather than hire counsel to create a unique document to reflect the situation? For the same reason people often fail to act prudently in business transactions: due to time and budgetary constraints.

Generally speaking, to be valid, a contract requires the following:
1. A statement of what each party agrees to do for the other
2. A statement of what each party will give to the other
3. A signature by each party

Given that there is no legal requirement, why fix an agreement to written form? And, why am I professing the need for counsel? Read on below...

REASON 1 - Agreements look different on paper.
Situation: Jill Actress auditions for an independent film. Jack Producer hires her on the spot and offers to pay her a percentage of the profits. The show is a success and other shows want to hire Jill Actress.
Explanation: It is one thing to have a handshake deal and quite another to put it down on paper. Verbal agreements tend to discuss the largest points in a contract. However, between the verbal and the written many things can happen. When Jack Producer offers Jill Actress a big break, she is no doubt excited and eager to start working. The agreement seems straightforward: her services for a percentage of the show. However, to write this seemingly simple agreement becomes more complex. Is Jill Actress permitted to accept other job opportunities, or is the agreement an exclusive one? What happens is Jack Producer fails to pay? Is the percentage applicable to syndication? When you retain counsel, you retain a skilled professional to consider not only the terms that have been discussed, but also to consider other possible situations that should be addressed in the contract. I can assure you that Jack Producer's lawyers will have considered these issues. If Jill Actress signs, she may be agreeing to be bound by terms that were not originally discussed in the 'verbal agreement'. Moreover, since a written contract will consider additional issues, it will provide better protection in case a conflict should arise.

REASON 2 - An agreement today does not equal an agreement tomorrow.
Situation: The Band is performing in bars to earn a little cash, while recording. They hire a manager, agreeing to pay 10% of the earnings.
Explanation: Let's say that the band members trust each other, a rarity in today's business world. Let's even say that negotiations go well and everyone agrees to the terms. I would still counsel the Band to solidify the management agreement on paper. Contracts provide a clear description of the verbal agreement. In addition, they serve to clarify a situation. The previous scenario illustrated that written contracts will cover details that would otherwise be ignored. In addition, over time, details of an agreement will fade from memory or, worse yet, the parties involved will have different understandings of the original agreement. In this case, the Band and manager agreed to 10%. Does this 10% apply to every gig the Band plays? If the Band performs well and is offered gigs independent of the manager's assistance, is the manager entitled to the cut? A written document will serve as a reference point should an argument arise later on. This may mean the difference between a resolution and going to court. Finally, in a litigious situation, the Band's position will be much stronger if they have their agreement in written form. While a judge will listen to each party's understanding of an oral agreement, without a written document, each party will have to prove that their position is in line with the agreed terms.

REASON 3 - Who has the time to make sense of this legal jargon?
Situation: Having a successful modeling career under your belt and with your extensive contacts you decide to open an agency. The agency is a success and you are earning a profit. Given the short term nature of modeling jobs, there has been little time for contracts. Usually, you either sign the agreement the client provides, use a template from the Internet, or simply send the model without a written agreement.
Explanation: Given the rapid pace of the business, as well as the excitement of success, contracts can appear to be an unnecessary constraint upon time. In reality, contracts act as a type of insurance, rarely referred to unless a problem arises, but acting as a safety net in that situation. I urge you to consider the possibility of sending a model to a job without the paperwork. Should a conflict arise, you will be left without a reference tool. At this point, misunderstandings and emotions will be at a high, and without the written reference, parties leave themselves exposed to litigious situations. As mentioned in the previous examples, a lawyer will be able to, not only adequately define the agreement, but also to add in clauses that would be neglected by a verbal understanding. Some clients will opt to download a template from the Internet. However, given that each situation is unique, a template will at best, fail to protect parties in the way they had indented, and at worst, be unenforceable. In this situation, arguing that 'legal-eze' (the fancy word for legal clauses) is too complicated, or that it made no business sense to create a written agreement will not protect you against the opposing party or in court.

To summarize, to the phrase "always get something in writing", I humbly add "and always get qualified counsel to review it before you sign it." In the entertainment business, be it film, television, music, new-media, fashion or a hybrid between these fields, the tendency is to focus on the deal and to neglect the paperwork since it can be expensive and time-consuming. As a result, better business sense seems to dictate operating on a verbal agreement. When considering whether to invest the time and money, ponder the alternative. You may be forfeiting rights to your work or you may be setting the stage for a weaker position should you go to court.

This is your career, invest wisely.