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02.11.15, 10:58
Photo: Mr. Spring and Tulga Photo Credit: Moto Photo Arthur Edward Ortiz
“Any time there is an agreement between two people to do something, that agreement is a contract. The importance of the paper is to prove what they agreed on,” explained Gordon Firemark, entertainment attorney in Los Angeles. He represents all sorts of entertainers, from comedians, magicians and clowns to theater, TV and film actors, and he has been a theater buff his whole life as well. He enjoys helping performers so much that he does a blog and podcast on entertainment law issues. Although he maintains that a written contract is the preferred way to outline everyone’s expectations, he also explained something interesting, that even an email, though not a legal document, is sometimes used as an informal contract, outlining the details of the offer and the negotiations leading up to acceptance. Sometimes, he admitted, that is how jobs, especially smaller one night shows, get booked. But having an official contract, especially with a lawyer, agent or union working on your behalf is generally a more thorough way to assure that you get what you expected out of longer engagements. So, when is it important to have a contract, and when is it OK to just negotiate details on your own? What do you do if you don’t understand parts of it? I spoke to two entertainment lawyers, and two circus professionals to get their best advice and tips on how to navigate the rocky straits of negotiation so you can sign on the dotted line with confidence and get back to the business of training and performing.
Why have a contract?How many times has someone handed you a long document and asked you to sign it and rather than delay the deal- you sign without reading everything? Well, that may work when you are renting a kayak, but when you are making a plan to spend an evening or a year in a company’s employ, you really need to know what is expected of you and what will be provided to you.
A contract exists for two obvious reasons; to protect you and the employer in case either party is not living up to their end of the deal, and to help everyone understand what the deal is to begin with. This is why you need to actually read the contract, explains Megan O’Malley, a musician with Ringling Bros. and Barnum & Bailey's Red Unit, currently touring with Circus Xtreme. “If you are dealing directly with the circus via a personnel manager or HR department, it is up to you to ask questions and discuss your contract terms. If your contract is being handled through a union or an agent, make sure that your representative is aware of your desires so that he/she can negotiate for you effectively.”
Peter Strand, bass player, one time carny and current partner at the entertainment, media, and intellectual property law firm Leavens, Strand and Glover in Chicago, has a another useful reason why contracts can help performers: ““While negotiation is the tool to use to try to improve your contract, it’s also an information gathering tool, especially if you are working with a new circus. How do they conduct themselves in the negotiation? How do they respond to your questions? How do they respond to your proposed revisions? What their attitude is towards the whole concept of negotiation will tell you a lot about what they are going to be like to work with. If they’re prickly, snappy and uncooperative, then that’s what the tenure is going to be like with the circus while you’re with them.”
Peter also stresses focusing on the practical aspects of your contract, “You want your obligation and your rights to be as specific as possible and visa versa. Some moving parts you need to know are: the pay, how often you’re paid, expense reimbursement, per diem, accommodations, length of performances, number of performances per day, length of contract and how it can be extended, etc.”
Who understands contracts?
Contracts can be complicated, but you don’t have to go it alone. Lawyers and agents make it their business to understand contracts and negotiate them for their clients. Trusted colleagues and industry publications can give you some perspective about what the industry standards are and professional associations (like En Piste in Canada, Circus Now in the US and Circus Next in Europe) often share important industry news. Gordon Firemark says if there are holes in your knowledge, an agent will have the experience to help, because “that’s really the role of the agent—to not just find a job, but to document that the job exists and under what circumstances.”
Sometimes an agent can even preserve your relationship with an employer. Peter Strand explains “The advantage with the agent is that he can be the hard guy doing the tough negotiations. It doesn’t then impact your relationship with the circus because you haven’t been difficult— the agent has. Of course, you have to pay an agent.”
But after you have consulted colleagues, your agent and a lawyer, the responsibility is still yours to understand what you are agreeing to, because none of those people can sign it for you and they will not experience the plusses or minuses of the deal as you will. Peter Strand’s advice is; “Know the industry norms, and know what kinds of contracts are out there, what’s the pay range, what’s the hours, and how often are you expected to rehearse and perform. You need to know your business.”
Of course, each individual and their employment circumstances are unique, so the information in this article should not be misconstrued as legal advice. It is a sampling of information and tips that have helped artists in the industry to understand their own situation better.
Also of importance is the fact that laws vary in each state and country regarding employment, which is one reason why you should consider having a local representative, especially when signing a contract with a foreign circus whose language isn’t your primary one. Gordon says it’s simple, “If you are a Ukrainian performer coming to the States and you aren’t fluent, you want an American agent or lawyer representing you here. Ask your agent from your home country to make an arrangement for you.”
When is it OK to sign on the dotted line?
Can you ask for too much and kill the deal? “There is always a way to reel things back in and reopen discussion, but really what this comes down to is knowing the business you are in… and not being afraid to aim for the reasonable high end of the spectrum. Your quote from your last job is always a good starting point. If you had a good job last year, asking for a 10 increase is not unreasonable, even 20%-25% isn’t unreasonable,” says Gordon Firemark.
Peter Strand has a slightly different perspective on it, “You have to figure out what the intangibles are for this deal; is this a better circus than you’ve worked for before? Is even the lowest amount of money they offer better than what you’ve been paid before? In other words, is this a step up and on to the path where you want to be ultimately? Sometimes you have to take a hit to get there. You may have to work longer, or for less pay or do extra performances, but the prestige of that circus may be a resume builder that makes it worthwhile.”
Megan O’Malley takes a balanced approach, “When discussing employment and negotiating terms, it's important to understand that the employer/employee relationship is supposed to be beneficial to both parties. Your employer wants to use your abilities for the benefit of the company. You want to earn a living and advance your career. It's a "give and take". If you try to "take" too much without "giving" enough in exchange, the company may find that what you offer is not worth what you're demanding, and decide to look elsewhere.”
But would a lawyer ever advise negotiating your own contract without a lawyer or agent? Gordon Firemark admits it happens, especially for shorter engagements, but he says it’s still important to establish an understanding, “For the short term gigs, you can’t afford to have a lawyer look at every deal. If you are going to be doing those one-offs often enough, maybe you want to create your own contract form, an ‘engagement agreement’, so when someone calls to hire you, you can say ‘ Let me send over my agreement.’ And it might be worth hiring a lawyer just to write up your standard form.”
Mr. Spring, an independent circus contractor, with 20 years of acrobatic experience, uses one such engagement agreement for his sort term corporate gigs. He explains how he uses it, “Contracts can pass the liability on to the appropriate person. I can put "in writing" (which is an important detail) the things I need to do my job, such as; a place to stretch, change, rest, put my stuff, parking validation, snacks and drinks, performance time and load in time. It becomes even more crucial on tours where you sign up for weeks, months or even years. Once you start and that contract is signed, that’s it!”
In the end, whether you decide to hire an agent or a lawyer to assist with your contract, or you negotiate your own terms, the onus is on you to thoroughly understand the arrangement. Nevertheless, Circus Promoters is one of the resources available to help you become an independent circus professional. One way we do this is by helping to improve professional circus literacy by creating a professional series about the workings of the circus industry. We also work to connect and match established employers with experienced, high level performers in order to improve the outcome of successful partnerships.
The Nitty Gritty—Lawyer’s Tips for negotiating your contract
Gordon’s Tips
- Know whether you are signing an employer agreement or as an independent contractor—there are different plusses and minuses for each involving taxes, liability and benefits
- Think about insurance needs; health insurance and disability insurance are important factors in deciding which contract would be better for you
- Look out for "Arbitration Clause"—although it is sometimes a preferable alternative to small claims court, the cost can be prohibitive in some circumstances
- Consider copyright protection when appropriate—certain characters and performance routines might be protectable by copyright if original and "fixed" in tangible form. A clown's original routine, for example might be registered as a "pantomime". A particular, original makeup design might also be registrable
- Seek a lawyer for more complex scenarios such as long term deals, renewal options and extensions
Peter’s Tips
- In the US, employment law is state law. The contract will say which state governs it—usually the state where the circus is incorporated. Those state’s labor laws and workers compensation should apply
- In most cases, avoid the “Work for hire” provision, which would mean that the employer owns the copyright for your routine
- If the contract isn’t in your native language, have it translated. Try the language department at a local university
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28.08.15, 22:52
(Photo credit Steve Hersee)
Improve your life, your act, your art, your profession, the industry itself, and your income potential.
By Kim Campbell for Circus Promoters
Who is an independent circus artist?
You are a professional performer, getting gigs and traveling the world. You are living the dream. But your work does not stop there. There are auditions to attend, employment details to be negotiated, as well as travel, training, networking, and collaboration. In the midst of all the hubbub, perhaps you wonder whether you are you creating the art you once longed to make, while positioning yourself for a long career that will lead you to newer heights. How can you possibly do all of those things at once? Is it as simple as putting money in the bank and planning for other opportunities a year or two in advance? Do you have to market yourself and your art form too?
Every day you take enormous physical risks to do the art you love, but as an independent circus artist, you must also take professional and personal risks to gain a reputation as an innovator and an outstanding performer in your field. There is no circus school that can teach that set of skills; they are cultivated on the job by years of trial and error. Fortunately, there are many tools, resources, and experienced people in your network that can help you to grow not only as an artist, but as a professional. With a little attention to detail, you have more potential to craft a career designed to meet your goals than any previous generation of circus performers.
What does it mean to be an independent artist?
To be independent means to be free to create and control your product (i.e., your work), to stipulate the details of your contracts, to negotiate your salary, to create your own brand, to shape your artistic identity, and to freely express your creativity. To some performers, maintaining independence is paramount; else they risk becoming a puppet who is called upon to perform their tricks, rather than a central figure in the process of their own creation. Yet circus work is, in some ways, like any other work environment: there are tiers of authority; collaborations must exist between artists and industry professionals regarding everything from act creation, costuming and performance themes, to lodging and pay. In these situations, you are not always acting solely as an individual, but for the whole production team. The bridges you build in these settings help lay the foundation and expectations for future performers. It takes years of experience to strike the right balance between independence and collaboration, but it is a crucial step in the balancing act of any professional.
Thomas Monckton, describes himself on his website as ‘a freelancer creating cross-genre contemporary theatre and circus as well as touring a number of international solo and ensemble shows’. Although he chooses to work independently, he recognizes the nuances that circus artists experience in their efforts for independence, since each performer comes with their own goals and background, “ Being independent is perhaps of less significance or benefit overall than having positive and transparent working relationships considering the spectrum of work avenues and artist's goals. Circus can attract athletes focused on honing their abilities to the highest level or creators who are focused on creating new forms of circus and of course a mish mash of both and everything in between. All variations have different optimal levels of independency and creative freedom.”
What does independence require of you?
Does independence have a price? It certainly does, but the cost is up front, like paying cash rather than relying on credit. All of the work you need to do to maintain your independence as an artist is that cost, requiring hours spent in research, administrative tasks, and decision making. But the benefits are personally enriching and can lead to a better work environment, increased income, more creative input, greater respect from peers and employers, and ultimately even a longer career. The risk of independence is that as a freelancer, a solo artist, or as part of a small company, you might have to make difficult choices, like deciding between job offers. Dana Dugan, a freelance circus artist in the US and former Operations Manager at Chicago Contemporary Circus Festival, explains some of the costs of retaining her independence, “My priority was to become an artist an expert in what I do- to create meaningful body work that was intelligent, challenging, touching, memorable, and inspiring to my peers and the general public. I chose the projects that were inspiring. They didn’t always pay well, but I could stand behind them. They fed me as an artist and challenged me. I also do lots of corporate work that is generally awful but it pays the bills.”
What are the benefits?
Independent artists innovate their industry rather than repeating stale material. This improves the profession by giving artists a stronger voice in their work. Individual acts are better because artists are more invested when they are involved in act creation. Ultimately, independent work can improve income potential for the performer as well as the profession, because an educated, confident, creative, connected, protected artist is happier and projects herself as a strong candidate for show producers. She also improves the industry, since working independent artists are more innovative, creating better shows, which leads to bigger audiences.
Barry Lubin (a.k.a. Grandma the Clown) now works largely as a freelancer in Europe after many years with Big Apple Circus where he built his reputation and brand. He says that the responsibility to manage your career is entirely yours, and offers a simple suggestion to begin with: ”Read anything you can get your hands on about the art of negotiating, because that is applicable in any business or service. It is impossible to be totally independent in any business, but it is very possible to figure out the potential for synergy between you and everyone you do business with, whether you own a circus or theater company or are a beginner.”
Be yourself
The irony of circus training is that you can learn the discipline and the tricks, even the tenets of what makes a good performer, but the essence of what makes a good performance is something that can’t be taught. It is a mix of dedication, guts, honesty, passion, creative thinking, skill, openness and generosity towards the audience. The correct mix cannot exist without you, because you are the only person who knows what proportions of each ingredient is required for your best performance, and how to promote yourself to convey that. This is why ‘doing you’ can be such an essential ingredient in any successful show, and an integral part of your professional long-term success. Natano Fa'anana, creative director and co-founder of the popular contemporary Casus Circus in Australia, defines what the concept means to him: “The good practices that have helped sustain me as an independent artist and kept the passion alive is to be unapologetic about my creative choices and decisions. Steer away from the norm and carve a new aesthetic, play with other mediums, i.e. technology (and) other art forms.”
There are many ways to put your stamp on your art. Monckton defines the process that helps him stand apart in his league, “In order for an artform to progress and to remain relevant to a contemporary public, it’s imperative that there is a vibrant experimental movement discovering new territories with circus. As a creator, it can help if you block yourself off from your own genre and look to other forms or contexts for inspiration. For example, if you are an aerialist, try not to look at what other aerialists are doing.” Breaking out of the norms of your discipline might seem impossible until you consider your personal differences. For Fa’anana, what is unique about him is that he thinks of the stage as a place to tell a thought-provoking story, rather than to fit in with fashion. He explains, ”I place importance on making my own work because that's what excites and defines me as a circus artist. I have a catalogue of stories to tell tucked away in the back of my mind and gradually I hope to tell those stories using circus as my medium. To develop as an artist I think you need to be true to yourself. Be comfortable with yourself and roll with your gut feelings and less with current trends.”
Thinking about your background, your interests, and your experience will help you to embrace and craft your identity. Brainstorm, dare to be different, create your own act, and ultimately build your own brand that will attract the type of employers you seek – they will recognize that you have a marketable performance and value you for it.
DIY
While you are identifying what makes you unique as an artist, you may get inspiration for act creation, allowing you to put your own unique twist on what you do. But independence should not stop with creating a unique act. It can extend to all areas of your professional life, from designing your own apparatus to identifying themes for a show you would like to produce, from set design to crafting your social media presence. You do not have to do all of those things, but depending on your age, experience and budget, you may find yourself enjoying a higher level of creative control. Many new companies work together as a tight-knit team to create their identity, and they harness that momentum to generate interest in their work as well as plenty of performance opportunities. If there is a show, an act, an apparatus, a festival, or a circus school that doesn’t exist yet, create it and you will attract interested colleagues. Use social media to display your creation process, your triumphs, and to ask for advice and feedback.
Barry Lubin explains his methods for keeping engaged: “Part of my job as a performer is to remain relevant, which simply means that I need to adapt and remain successful in each new gig I do, which helps with word of mouth, helps with my own confidence, which then helps when I search for the next gig."
Keep in mind that you are in this for the long haul, and that networking is more of a long-term investment than an immediate payoff. Lubin says, "I also realize that relationships and contacting people such as producers, directors, owners, and agents can pay off years later, so patience is very important. Careers are built over time, but I know that I need to work now so that it can possibly pay off in two or three years with a job offer. Staying in touch via email and social media, going to festivals to network and let people know I am alive and working still, and simply the act of doing different gigs tends help further my career.”
Educating yourself on the circus industry is easier today than in the past, where learning was on the job and by word of mouth. That insider network was how most circus gigs were found. But now producers have more festivals and schools to comb for talent than ever before, not to mention the convenience of the internet for discovering potential acts.
As one of the online resources, Circus Promoters provides a platform in the world market and opens it up for professional circus artists and producers to meet. Circus Promoters has a large, private database for both employers and performers and works directly with individuals to help connect them. In addition, Circus Promoters will maintain this blog for the professional who wants to stay current on industry news, and gain insight in to the worldwide circus market, and other issues that will affect their career. In the coming months, this Circus Artists Blog will cover topics such as; understanding contracts, current circus trends, working with or without an agent, and what talent scouts are too busy to tell you.
Continued training and professional development is an area most circus performers do not struggle with maintaining. During off-seasons, gyms and circus schools are packed with individuals trying out new apparatus, testing their material, and sharing expertise with colleagues. But professional development can extend beyond physical skills into areas that seem less obvious, such as small business skills, studying a foreign language, researching performance grants, or pricing insurance quotes.
The Internet is a tremendous resource for promotion and research. You can use the Internet to follow industry news by using Google Alerts to be notified about topics of your choosing. You can sift through YouTube to check out your competition. You can take online classes in business, marketing, and finance to help manage your income and prepare for your future. You can watch videos about the circus world to see what audition processes are like. You can follow the blogs, publications, and websites of circus-centric businesses to see what trends are emerging and what is in demand.
When you are done scouring the Internet for guidance, there are always your agent, mentors, teachers, and colleagues to check in with. Barry Lubin agrees: “Educating yourself can come in many forms. Talk to people in the industry, especially veterans. Talk to them about how to ask for things like money, accommodations, getting travel costs covered. Talk with agents clearly about how they work, who they will attempt to contact on your behalf, what they will try to accomplish for you, and what their commission will be. Don't guess. Any unanswered question by a producer, director, agent, owner, etc. is your responsibility to get answered."
It's important not to burn your bridges. Lubin says, "I always talk to people about dealing in a positive way with those you are negotiating with. If you don't get what you would like, you can always go down a little, that is up to you, but if you really aren't going to make a deal, I still try to say, ‘I really hope next time we can figure out how to work together.’”
Protect yourself
As an educated, capable, and confident artist, you will naturally protect yourself throughout your career. You will create your own work, foster innovation within your field, chose a good agent, read through and negotiate your contracts to fit your needs, connect with associations that support artists, obtain good insurance, plan for your future by saving some portion of your income, plan your gigs one or two steps ahead of your current position, and network with the people you meet within your industry.
You will help the profession remain strong by educating and mentoring the next generation, promoting yourself and your colleagues, and upholding high standards in the industry for safety, compensation, and performance. If you can manage all of these things, you will not only be on your way to a tremendous career full of travel, opportunities, adventure, and artistic growth, but you will also be a treasure to the circus world itself.
In the words of Fa’anana: “ In my career, I have seen some great performers rise and then fizzle out. Sometimes out of the circus industry altogether simply because they didn't know how to manage themselves or understand how the industry works. Self-management, administration, negotiating and networking are a few of the important things a circus artist could benefit from having. To create a great act or product is one thing. To put it out there on to the stages is another. Be one step ahead. To protect yourself and livelihood, surround yourself with supportive, professional and motivated people.”
Bio & links:
Kim Campbell is a circus and theatre critic and writer. She has written for Spectacle magazine, Circus Now, Circus Talk and was a resident for Circus Stories, Le Cirque Vu Par with En Piste in 2015 at the Montreal Completement Cirque Festival. She is the editor of American Circus Educators magazine, as well as a staff writer for the web publication Gapers Block, where she writes about arts and culture. You can follow her frequent musings on circus via Twitter, Instagram or at Kimzyn Chronicles .
Photo Credit: Steve Hersee
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