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Dealer's Choice: How to Negotiate Your Contract

Dealer's Choice: How to Negotiate Your Contract
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After all the grueling years of work and suffering and humiliation and pain that most actors put into getting a job, you would think that they might have some salient idea of what to do once they actually get a contract to read and sign. Think again, say almost all the people Backstage spoke to regarding this subject.

Perhaps because the strain of this field requires an especially narrow and singular focus, or perhaps because actors are intimidated or repulsed by the pyrotechnics intrinsic to contract negotiations, many actors do not know even the basics of a deal. Making things worse, most actors are so very desperate to get a job that they tread very delicately in negotiations, barely skimming the surface of what they can get. The result, at least in the worst scenarios, is that producers can sense their weakness and take advantage, even if the actor is represented. “When actors say ‘Don’t lose this for me’ that binds me; I’m screwed when they say that,” says Teresa Wolf, an agent with Schiowitz/Clay/Rose. “Every actor believes this is the last job they are ever going to get,” she laments.

Where to start, then, if you’re an actor with a fresh contract on your lap? The first place, without question, is Actors’ Equity Association, which has rulebooks explaining each and every contract that falls within their wide jurisdiction. “I would hope that any actor in the midst of a negotiation would consult with the union, though they’re not very helpful either, sometimes,” says Lynne Jebens, an agent with The Krasny Office. Jack Menashe, an agent with Carlson Menashe Artists, agrees. “It’s really a good idea to go to Equity and get rulebooks explaining what your rights are.”

It may sound basic to some, but a union contract is not a “standard agreement” that all actors sign onto. The union is there to provide you with a minimum; you can (and should) negotiate any extras that you can get. And, in many instances, there is more than the minimum out there, especially if you know how to ask for it.

THE MAJOR ISSUES

Money

Naturally, salary is going to be on the top of anyone’s list of issues. The question for most is, when can salary be most effectively negotiated, and how to conduct that negotiation? The answer, as in most answers regarding negotiation issues, is a bit diffuse.

“You have to figure out your bargaining power; how badly do they want me?” says Donald Farber, an entertainment law attorney who has written a variety of books on the subject, including a helpful volume entitled “Common Sense Negotiation: The Art of Winning Gracefully.” Farber explains further, in the language of actors: “Your response to anything in a negotiation not only depends on the contract terms, but also what the cue lines are.” That is, if it “feels”  like you have some leverage from your intuitive sense of the situation, Farber suggests thinking about trying for more. “Trust your instinct and what you’re doing,”  counsels Farber, a veteran of the business who has represented such performers as Olympia Dukakis, Estelle Parsons, and Lynn Redgrave.

What if instinct isn’t telling you enough? Farber suggests getting professional help in finding out whether you have any leverage. “If you want to buy a car, do you just buy it?” asks Farber. “Of course not,”  I reply, “I would get a mechanic to look at it.”  Likewise, you should consider getting a lawyer or an agent to look at your contract should you be unrepresented at the time of the deal.

READ: What to Consider When Signing a Contract

Some might not realize that many agents will be happy to represent you on a particular deal even if they don’t represent you generally, especially if the deal in question is a union job or a job that pays well. Shep Pamplin, an agent with Oppenheim Christie, says flatly, “If it’s a union job, by all means call an agent, they will negotiate it for you.” Agents we spoke to indicated that this kind of arrangement might also allow the actor to retain the services of the agent on a permanent basis should the relationship blossom.

Regardless of who represents you, one clause that it’s usually possible to negotiate is the so-called “favored nations” clause, which ensures that a performer is paid the same as others on the show. Agent Dulcina Eisen explains: “Let’s say the actor is doing 'Grease,' they’re one of Betty’s sidekicks—you want to know what they’re offering anyone else. Some general managers won’t tell you what they’re offering everyone else. You want to say that actors in comparable roles get the same. Frankly, it’s surprising that they might not get the same.”

Favored nations clauses are also a very effective tool for the unrepresented actor. Bruce Lazarus, a prominent entertainment attorney in New York, explains, “If an actor says ‘I’ll take the same deal that everyone else is getting,’ whoever is represented well will effectively make the deal for all of them.” This is particularly true if performers state the request for “favored nations” in a very detailed and conscientious manner. “You must be specific and request it for salary, and for terms and conditions,” says Rich Cole, a casting director. Adds Dulcina Eisen, “It’s also good to ask what other perks people are getting—if others are bringing a pet or a spouse, you might be able to bring a pet or a spouse.”

When can you get “favored nations,” in particular? “You can usually get it in non-profit,” says Mary Harden, an agent with Harden-Curtis Associates. However, there may not be all that much money to be had in the non-profit theater in any event. “Non-commercial theater always cries poor?that’s the thing that's frustrating. Lincoln Center and Roundabout use the fact that they have a LORT contract, and yet they qualify for the Tonys. Someone’s making a fortune?and it ain’t the Equity actor,” says a prominent agent. “Todd Haimes makes a lot of money; Bernie Gersten makes a lot of money; all the staff people at Roundabout and Lincoln Center make good money. They use the LORT designation as a way to save money.”

The same agent also warns about the irony of producers using the favored nations clause to their advantage. “Producers’ biggest tool is the favored nations clause—they use it to keep salaries down. They call you and say it’s $600 week favored nations.” The agent advises, “You have to respond by saying it’s favored nations at my salary. It is being used as a bat to beat actors down.”

Other means of enhancing salary include securing additional money for understudying. Ordinarily, performers get a minimum of an additional one-eighth of their weekly salary for each time they’re on. Teresa Wolf explains that you can try to negotiate “more than the standard one-eighth. It will certainly be less than the star is getting, so a lot of times producers will go along with that. It’s a big responsibility going on for the star.”

Bonuses are also possible for those actors who expect great things from the role. “There could be things like a built-in raise if you get a Tony nomination,” says Lynne Jebens. You can also consider asking for a bonus if the particular show does well; producers can hardly “cry poverty” if a show is a huge hit and all the seats are filled.

Billing

Where an actor’s name is located on programs and flyers is another issue typical to contract negotiations. Whether an actor will be able to adjust his or her billing is another matter entirely.

“You can get it if you don’t need it; it’s like a bank loan,” says Donald Farber, with a slight grin. “When I’m working for Kurt Vonnegut, I don’t have to negotiate billing credit because the producers will make him the biggest thing on the program.” Nevertheless, Farber, who mainly represents producers?urges actors to consider trying to secure appropriate billing. “I’d give up pushing for extra money any day to get billing credit,” he says. Moreover, “It doesn’t cost the producers anything to give adequate billing credit.”

Teresa Wolf agrees. “Sometimes billing is very important psychologically, so it’s something you have to consider.” She adds, “A lot of time it goes along with a tier structure—frequently actors are on the same tier in terms of billing and salary. For instance, the Bill and Lois characters in ‘Kiss Me, Kate’ are both secondary—you want to ask for equality.”

As with any term or condition of a contract, one must always consider the type of theater you are dealing with. “With a LORT contract, there is no billing,” says Lynne Jebens, bluntly. With a commercial production, however, an actor may be able to adjust his or her billing, especially if they have creative suggestions on how their name might be displayed.

READ: Not All Contracts Are Created Equal

Outs

Among the most important terms and conditions relate to when an actor can happily and legally leave a production. These terms, called “outs” in the business, are cherished by many and received by, well, less than many.

“You always want to get them, and people these days are less and less inclined to do it. Each show is different,” says an agent with clients in quite a few Broadway shows. “Susan Stroman likes people to be on a year contract—on a ‘Stro show,’ she wants a commitment. Ultimately, it depends on the desirability of the client,” the agent says.

In this regard, it’s always important to focus on the length of the deal itself. Most producers will want to lock actors up for as long as possible, and even veteran performers might have trouble negotiating an adjustment. A prominent agent provides an anecdote about Andrea Martin: “She was negotiating ‘Seussical’ and she didn’t want to sign for a year. Ultimately, the negotiation broke down because she wanted to be with her kids.”

It’s also important to focus on the terms and conditions of leaving a show before the contract has elapsed. Equity rules will ordinarily specify four weeks or so notice before leaving, but “maybe you want to give less than two weeks notice,” says Bruce Lazarus. You might also want to leave a show temporarily, perhaps for a single date that is particularly lucrative or rewarding. Katherine Lamkey, central regional director for Actors’ Equity Association, suggests thinking about an “MRE” or “more remunerative employment” clause—“though it’s hard to get.” This kind of clause allows actors to leave a show for a short period of time to benefit from perhaps a high paying commercial or film shoot. Note that asking for an understudy might also be necessary to secure this kind of clause.

Note also that if you are unrepresented, this is one area to which you should pay particular attention. Be especially wary of signing anything dealing with “exclusivity of services,” says Jack Menashe. “Avoid anything with a buyout—some producers will try to buy the actor for two years.”

Other Terms and Conditions

Other issues you raise in contract negotiation depend, again, on your bargaining power, but there are quite a few to consider should you have some leverage.

Dressing room negotiation is almost a theater cliche, but “people do argue about it; why would you want to be with eight other people (in the dressing room)?” says Lynne Jebens. Be careful not to be too insistent, though, because some producers may not even know about the dressing room situation when they negotiate a contract. “Frequently, they can’t guarantee because they don’t know what theater they’re going into, or they don’t know who’s going to be in the company,” says Teresa Wolf.

Believe it or not, pets are also an issue, especially for those performing on tours. “That’s a big thing, cat clauses,” says Mary Harden, wryly. Richard Cole adds: “It’s interesting, a lot of places won’t accommodate pets—if you’re really attached to your dog, you might have to forego the job. I tell them, ‘Just get somebody to sit for the dog,’ but sometimes they don’t want that.”

READ: The Top 10 Mistakes Actors Make When They Sign a Contract

House seats are another issue that comes up. “It’s standard [to get your own seats] if you’re in the principal role, but don’t even think about it if you’re in the ensemble. You’ll be limited to the pool of company house seats,” says Teresa Wolf. Other issues that were mentioned to us include haircut (you might not have to cut your hair if you don’t want to), transportation to and from (if you live in a different town than the show), and makeup and wardrobe. (“People might negotiate a new pair of shoes every week, if it’s a dance number,” says Jebens.)

ISSUES PARTICULAR TO SPECIFIC CONTRACTS

Know Who You’re Dealing With

It’s essential in negotiation to take full notice of who you are dealing with when negotiating a contract. As in acting, you must know and understand not just your role, but all the roles, if you’re to get to where you need to be.

For Broadway shows and commercial theater productions, “You’re often dealing with slicker people; you’ll have more time to negotiate with them, as the non-profits will be working on several shows at once,” says Katherine Lamkey. Accordingly, there might be more room to discuss perks or additional money demands, especially if the show may be on the cusp of greatness or near-greatness.

If you’re joining an established show that has been running a fairly long time, find out the established protocol of the show before getting involved in talks. Some terms may be available that you didn’t think possible, and other terms might not be worth demanding or even suggesting. With long-running shows, producers are not likely to alter things all too much for a newcomer.

It’s also important to try and bump yourself up if you’re signing as an understudy. Teresa Wolf indicates that you also “want to be designated as first cover—there’s usually two or three at least who cover a particular part.” Also, though you might not get it, Jack Menashe advises to “ask for first refusal on the role you’re understudying.”

In the non-commercial realm, there may be less to negotiate, but be sure that you truly want to appear in the show if you are going so far as to sign a contract. In most shows, you have up until two weeks prior to rehearsal to get out of the production, but with LORT contracts, “Once you sign it, you’re theirs. If you want to leave prior to rehearsal, you will have to make an arrangement that will be monetary to get out of it before the show,” says Katherine Lamkey.

Touring Considerations

If you’re on a tour, there are all sorts of issues to be concerned with. People we spoke to indicated that tour operators can pose a real threat to actors’ working conditions, perhaps because many tour operators work without a union contract.

How to tell which tour operators are unscrupulous? One way is to ensure that the operator has money enough to pay you up front. “You want to avoid deferred payment; that itself tells you it’s a place where you don’t want to work,” says Paul Russell, a casting director.

To give you further protection, you need to be especially careful that the contract has an out clause, as discussed earlier. “There can be no out clauses in tour contracts. I would never do a job without an out clause—reasonable is four weeks,” says Rich Cole. Also, “Make sure you have some kind of round-trip ticket. A friend of mine got stuck in Europe—the people were scum buckets and left them there. Ask for the tickets up front,” says Lynne Jebens. Katherine Lamkey agrees. “People are most concerned with getting off the tour?transportation on the way back.”

Housing is also a very important issue to be concerned with when on a tour. Things to focus on in this regard include “How many people per room, whether there is a private bath, whether there is smoking or not—these are basic human needs,” says Paul Russell. Also, “You want to learn what’s in the apartment; do they pay for cable television, local phone calls?” says Richard Cole.

It’s also important to know exactly what kind of technical requirements are needed for the production. “Ask what is involved. Is it just moving the set, or is it building a set, or is it cleaning out the bathrooms, or cleaning someone’s home?” says Paul Russell.

READ: Touring Actors Offer Advice

Per diem is also a subject of negotiation on tours. “Sometimes you can get additional per diem rather than salary—salary gets multiplied by taxes, so they may be less inclined to up that,” says Katherine Lamkey. Other issues on tours include schedule, the length of “sit-downs” (or time in each city), specialty fees for understudying, doubling of roles, rehearsal schedule, and who else is cast. There may be additional pay for doubling of roles or understudying, and actors should be careful about having too much rehearsal time.

Similar to tours, dinner theater and summer stock productions are also given to abuses if the actor is not wary. Paul Russell urges the actor to do such basic things as “ask for housing and find out whether there are linens.” He also advises actors to find out the number of days of work because “some producers will work you seven days a week for seven weeks.” Tech work is a particularly important consideration here. Russell remembers working as an actor and finishing a show at 11 P.M., and then doing tech work till 4 A.M. Finally, find out whether the producer will “deduct a certain amount for housing—it depends on the theater; a lot of stock companies can do that,” says Richard Cole.

PROTOCOL

When They Know More Than You Do

What about the art of negotiation? That is, how do you get what you want from a producer who is vastly more experienced than you are at negotiating, and who very likely has more leverage than you?

“It all depends on how it is approached,” says Lynne Jebens. “If you come out aggressively and with an attitude, you’re going to get nowhere.” Donald Farber says that, when negotiating a contract, “I say ‘please’—sometimes ‘pretty please.’ Yelling and hollering I don’t do.” Can actors push themselves out of jobs if they are too brusque in negotiations? It’s not common, but it does happen, particularly if the performer combines a confrontational attitude with a lack of an understanding of the realities of the theater industry. This kind of poor impression might possibly suggest to a producer that an actor might be difficult to deal with during the show itself. Says Donald Farber, “Actors do push themselves out of jobs; it’s not common, but if you start with an offer that’s outrageous, forget it. We all have different styles, but be in the ballpark.”

Rather than take a hard-edged approach to negotiations, be sure to be cordial and respectful, even (perhaps especially) if your counterpart is being obnoxious, crude, or rude. Says Donald Farber, “This is a small business; if you treat them decently, it will pay off.” Bruce Lazarus adds, “Be nice. Everybody who’s in this business, chances are they started as an actor. To some extent, everyone who’s not an actor is really doing a support role because they don’t have the courage to do the other.”

It’s also important never to show fear during negotiations. “Never get intimidated—there is a lot of work out there,” says Paul Russell. Jack Menashe goes further, saying that actors who are leery of negotiating with producers “shouldn’t be actors. Being afraid is the worst possible thing. Keep a steady head, think carefully, ask questions without seeming high maintenance.”

READ: When Does an Actor Need a Lawyer?

As far as your demands go, respectful and thorough questioning is always in order. “If a producer is wary of all your questioning, don’t worry, you’ll work. If they say they’ll blackball you—please!” says Paul Russell. However, comprehensive negotiation must be distinguished from an utter lack of perspective. “You will find individuals who don’t have as realistic a view as others. The worst thing the actor can do is to believe rumor or hearsay, or your friends saying you ought to get this,” says Mary Harden.

The effective negotiator must also know what’s important to give up. Indeed, you should probably consider having some “dummy demands” to be conceded after the negotiations are over. Donald Farber explains: “I once prepared this contract, and an agent said to me, ‘I have 21 problems with the contract.’ I handled it in no time. I said, ‘I”'l give you 17, but four you’ll never get.’” He reports that his client was most pleased with his work, and that the agent’s client was pleased as well. “She was able to tell her client that she got 17 of the 21 requested changes. I was happy to tell my client that the concessions we made were not the least bit important to the substance of the transaction and that we had successfully resisted all of the agent’s significant requests.” As Teresa Wolf puts it, “Ask for the moon and be prepared to give it up—that puts me in a position of power.”

Make Sure You Understand Everything

It’s also important to understand each and every clause in a contract. Many contracts are written in language that is turgid or cryptic or just plain incomprehensible. Ask questions if the contract is written in “legalese,” and insist on a rewrite if the language is given to two or three interpretations. Donald Farber says, “If you don’t totally and completely—without doubt, without any question? Understand exactly what you’re saying, ask someone who does.” Jack Menashe adds, “If it doesn’t make sense, you absolutely shouldn’t sign it. Clarify every little thing, and put in everything that you need. Be 100% comfortable.”

What if your agent wants you to sign something that you don’t want to sign? In general, the actor should listen to the agent, keeping in mind that agents usually have a symbiotic relationship with an actor. “You should trust your agent—monitor them, but trust them as if they were a doctor. Give them enough room that they can represent you intelligently on their own, and make sure they check back at crucial intervals,” says Dulcina Eisen. “We are supposed to be trained professionals. We don’t make money if the actor doesn’t,” adds Lynne Jebens. Note, however, that there are some unusual situations (say when the pay is low, but the actor wants to take the job for the aesthetic value) where agents may avoid work for their clients. A prominent entertainment attorney in New York says, “Some agents don’t want their client to take certain jobs—the agent doesn’t have it in their interest.”

It’s also important to understand that agents are not lawyers, even though they are ultimately negotiating a legal document. If you think the agent is ignoring a legal point, you might well want a lawyer to look into it. Says Donald Farber, “There are two kinds of agents; the big agents who have enough clients so that they can have attorneys on staff—they don’t have time for the little people. Then there are the smaller agents—who don’t have lawyers on staff—who are capable of screwing it up.”

Whatever you do, remember to have everything promised to you in writing, preferably word-processed, and signed by both sides. And always remember to be very careful to read every single draft through to the end—including riders that are attached to the contract. Katherine Lamkey explains: “I once reviewed a contract with a rider, and on the very last item it said that this particular actor was contracted to understudy the part of Maria. It ended up being somebody else’s contract.”

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