Before you put an entertainer or speaker on stage, you should be clear in advance on the terms. Often, theyou'll be issued will be straightforward and fair; in some instances, however, there will be clauses that are one-sided or not in your best interest. In that case, your objective should be to eliminate or balance out any inequities so that your company is protected and there are no surprises. As with any , enter into it with your eyes open.
Consider the following clauses that have been excerpted from actual entertainer and agency contracts. Before reading the revisions, see if you can determine what portion of the clause might be unbalanced and what you would do to correct it.
Clause: Purchaser agrees that performer/speaker may cancel the engagement hereunder without liability by giving the purchaser notice thereof at least thirty (30) days prior to the commencement date of the engagement.
Revision: Cancellation clauses should be specific. Spell out a time frame (usually in months) that allows you time to find a suitable replacement in the unlikely event of a cancellation. Acts and speakers that are in demand often ask for an "out" clause, which enables them to cancel for any reason without liability (in which case you shouldn't have a problem getting your deposit back).
In the example here, I would attempt to get a 120-day advance notice but would settle for at least 90 days. In addition, I would try to limit the act's reasons for canceling to unforeseen extended theatrical engagements, or conflicting motion picture or Broadway show contracts, for example.
Clause: Talent's obligations hereunder are subject to detention or prevention by sickness, inability to perform, accident, means of transportation, Acts of God, riots, strikes, labor difficulties, epidemics, any act or order of any public authority, or any other cause similar or dissimilar beyond talent's control.
Revision: If the phrase "inability to perform" doesn't scare you, it should. In the 12 years I've been producing shows and reviewing contracts, no one--including agents, performers, lawyers, and clients--has been able to tell me exactly what that means. At best, it's vague and broad; at worst, it's a sweeping and indiscriminate way out of a commitment (note that sickness is already included). Why leave yourself open on something that could impact your show or your budget? Simply delete it from the contract.
Clause: Purchaser shall not itself nor shall it permit others to record, broadcast, or televise, photograph, or otherwise reproduce the visual and/or audio presentation hereunder.
Revision: This one is a little tricky. I know of no entertainer or speaker that would allow you unconditionally to record a presentation or performance--and rightfully so. It takes years to perfect a presentation and no one would want it sold or reused, or would even want to have it "out there", without some limitation or control. However, there are two changes we typically add to a contract with this clause. First, we specify that we be allowed to use image magnification during the presentation or performance, and second, that we be permitted to record the presentation strictly for internal use (for example, in a video to promote next year's incentive trip). Most of the time, speakers and entertainers that aren't big-name acts will allow both of these uses provided they get a copy of the presentation.
Clause: The person executing this agreement on purchaser's behalf warrants his authority to do so, and such person hereby personally assumes liability for the payment of said price in full.
Revision: If you're unsure why this clause is extremely dangerous, please call or e-mail me immediately. Seriously, it's in quite a few entertainment agency contracts and you should, of course, delete it entirely. It's okay to commit to your authority to execute an agreement--but not to pay for it personally.
Clause: This agency acts herein only as agent for entertainer/speaker and is not responsible for any act of commission or omission on the part of either entertainer/speaker or purchaser and assumes no liability hereunder.
Revision: Believe it or not, this clause is basically unchangeable. An agent is essentially a broker and is not responsible for negligence on the part of the performer/speaker, or for that matter, for your own negligence.
Most of the time, you won't have problems with these types of contracts. However, if overlooked, these and other clauses can come back to haunt you. A good production company or other trusted source is aware of the pitfalls and will navigate through them.
If you come across other clauses that seem unreasonable, fax or e-mail them to me and I'll offer suggestions on how you might handle them. In my next column, I'll focus on clauses that you can add to contracts that will protect your own best interests.