The Contract
Someone once said ‘the contract is where the soul of man resides’. I think it was Nietzsche or maybe Camus – it was possibly even my second-year contract law lecturer. I don’t know where the soul of women resides. Not in the contract clearly, which probably explains why women are more interesting than men.
It is a little known fact that the concept of a written legal contract was invented during the age of slavery in the United States, and it was the primary cause of the American Civil War. What happened was that Thomas Jefferson proposed that rather than just submitting to the terms of slavery imposed by their slave masters, slaves should in fact be able to negotiate the terms and conditions themselves. And the conclusion of these negotiations would be enshrined in a written document which came to be called a ‘contract’.
So under these contracts, slaves could negotiate and agree upon such things as how many beatings they should have to endure in a day and what contractual breaches were punishable by being beaten to death (as opposed, say, to being thrown down the well). Unfortunately (from the point of view of slave owners) some slaves developed superior negotiating strategies and in a Supreme Court case, which became famous in United States jurisprudence (The State of Virginia v Thomas M’Buko), the court upheld a contract in which the former slave, Thomas M’Buko, inserted contractual provisions in his contract granting himself freedom and ownership of all the slave owner’s lands and possessions (including his wife). Unfortunately (for him) the slave owner did not read the amended contract closely before signing it and unwittingly agreed to these radical provisions. As a result of cases such as these the South revolted, and the rest is history.
As a direct result of the history of the written contract outlined above, contracts for services today still have a whiff of the slave-slaveowner relationship, and for that reason I thought it might be useful to examine a few typical contractual provisions that will arise in contracts you are presented with. These clauses were actually submitted by a member, but will be familiar to many of you (FYI the rest of this article is the serious legal part, in case you can’t tell…):
- The Contractor shall use his or her best endeavors to protect and promote the reputation of the Producer and shall do nothing to undermine the Producer’s good reputation.
This is a common provision but often is worded in a way that simply requires the contractor not to do anything that might harm the producer’s reputation. In that more passive form it is quite reasonable as a contractor will often be in a position where he/she could be seen by the public at large as a representative of the producer. But when the clause goes on, as this one does, to require a positive effort to protect and promote the reputation of the producer, it goes too far in my view. Aside from the fact that this is not what the contractor is being hired and paid for (generally), the wording is so vague as to be virtually meaningless.
2.The Contractor agrees not to discuss the details of this agreement with any persons not directly involved in negotiating this Agreement.
Yes, because it’s so top secret that the world will fall apart if anyone knows what’s in it! Sometimes this kind of provision is reasonable but usually not. Confidentiality regarding the project for sure, but it doesn’t have to extend to the agreement.
3.The Producer may require the Contractor’s services for up to two additional weeks or part thereof at the end of Production Period. The Contractor will remain available and, if required, work the additional week(s) or part thereof. The Producer will advise the Contractor of the likelihood of any extension being required as soon as practicable.
Aside from the crime (unforgivable in my opinion) of using the word ‘thereof’, the problem with this kind of provision is that usually there’s no extra money if the additional work is required. The tension with these types of clauses, as always, is striking a balance between the needs of the producer to have some flexibility around start dates and production schedules and the needs of the contractor to enjoy the benefits of food and shelter. You can’t be available for extended periods of time and no pay for one project when it means missing out on other work.
4.Notwithstanding 3.1 above, the Contractor also agrees to work the hours that are required by the Producer or the Production Manager whether or not those days are Shooting Days or part of the Shooting Week.
The effect of this clause when read with 3.1 (which I haven’t reproduced) is that although you are being paid to only work a five-day week, you could be required to work a seven-day week for no extra money. I’d file this in the ‘hey what are you complaining about! You’re lucky to have a goddamned job!’ category.
And now for my Free Advice
The sample clauses above are pretty standard. Sometimes they are less stringent, sometimes more so. So don’t be afraid to negotiate. Negotiation should always precede the signing of a contract. You have to be realistic about what is achievable (there is nothing more annoying than contractors making ridiculous and unreasonable requests). You have to bear in mind the commercial realities of the project. But don’t forget you have your own commercial realities too! The best thing to do (warning, shameless plug coming up) is to engage a lawyer to have a quick read of the contract before signing. Someone who knows the industry well (someone like, ahem, me, for instance) can quickly identify the negotiating points. You won’t be able to get rid of clauses like the ones referred to here, but you should be able to make some modifications to alleviate the harshness. And isn’t that what life’s all about… alleviating the harshness.
