Not Fooling Around. A PSA for Comedians: How to Read Contracts
I’m either a comedian who moonlights as a union organizer or a union organizer who moonlights as a comedian; I kind of can't tell anymore. Consequently, other comedians often ask me how we can form a union. The question they’re really asking is not “How do I pay dues and get a union contract?” The underlying question really is “How do we get a better deal in the unending murder-suicide pact of show business?”
Unions are defined by law as collectively bargained, democratically-ratified, legally-enforceable contracts covering wages, benefits, and working conditions. They are defined by pop culture as corrupt and/or irrelevant. Comedians who are already in SAG-AFTRA or the WGA can participate in them to make them better.
On the other hand, as comedians there is a vast sprawling expanse of our creative work that is as yet uncovered by existing unions. Standards are all over the map for our podcasts, stand-up, writing, videos, hosting “talent shows” at the Elk’s Lodge. Even when we get a gig with a contract, we hope someone else has our best interests in mind who will tell us what it means. Or we do the gig with a fist bump as the contract and pray for the best.
This is bullshit. Until we figure out what the United Comedians of America will do, we can be smarter about our contracts.
Here are a few tips on contracts that may make your life better:
Get the contract at the beginning, when everyone is excited about working together. When things go great, of course it seems like we don’t need a contract. Contracts are for when our relationships turn to rubbish or there’s a misunderstanding. But it is wayyyy easier to make a legal document when we’re friends than it is after the shit hits the fan and you actually need it. As an analogy, if you’re about to do the nasty, and pull out a condom, and the other person gets weird about it, then you may not want to hump them. Maybe you only do oral. If the first time you have sex with somebody, they bust out something hella weird and creepy, you may think twice about doing it again. Same with contracts. A contract is foreplay to check out a partner before you’re in an ongoing business affair and they give you syphilis.
One of the irritating things about show business is that deals aren’t public, so transparency is a big problem for us. In union negotiations, workers can check other union contracts to see what’s normal. In political wheeling and dealing, everything is in the public record. But for comedy, there is no public record to tell us whether a deal is amazing or we’re being screwed. Nobody really knows the market or what an apples to apples comparison is. This means we need lawyers and agents and managers or wino prophets we trust—people who know the market. I hate negotiating without my own data, so my personal strategy is to do everything I can to narrow the range of issues where I have to hope I’m getting accurate advice from my lawyer.
In legal terms, a contract is a “meeting of the minds.” All that matters legally is whether the parties understood what they agreed to. That’s why it sucks for us as “talent” to not understand what we’re signing. Usually, the people who need to agree to the contract are not the people who write it—the first draft always comes from a legal template instead of the person I’m working with. For every contract, I create an email record to clarify the meaning, and then renegotiate so the language reflects what we’ve verbally agreed to. No one objects when I say, “This doesn’t reflect the conversation we just had. Let’s fix the language.”
Plan for worst-case scenarios. We Jews have spent millennia mastering the art of anticipating all the ways something can go horribly wrong. Comics are of course desperate to get to the being-funny part, but the more clearly we plan for the future, the better.
The most important parts of the contract are how it’s enforced and how you get out of it. Money is important, but we also need contracts in order to protect ourselves. Entertainment is filled with stories of artists who took the wrong person’s word and got paid in cocaine instead of royalties. The more airtight the enforcement of a deal is, the better. When you read a contract, what could it mean to sue over each part? How would it look, in a worst-case scenario, to a judge or an arbitrator? For example, if someone says that they “will” do something, that is a lot bigger commitment than if they say they “will make a good faith effort” to do it. It is nigh impossible to prove that someone didn’t make a good faith effort, but not hard to prove that they just didn’t do it. Enforcement also means making sure you have tools to enforce it, so language about when everybody has to do stuff and what information you’re entitled to is essential.
How a contract ends is critical. There’s no right answer; just know what you want. We often make a contract with somebody at a company, and then that person leaves and the dude who replaces them doesn’t like us. What happens if the deal is sold to another firm? Do they have to honor the old contract or do you get out of it? Can either side extend the contract, or terminate it, and how easy is that?
Now get out there and always be closing. Or never be closing if the deals suck. Or be taken advantage of. Or move to Europe and enjoy public arts funding and universal healthcare. Up to you.