A contract is a voluntary arrangement between two or more parties that is enforceable by law as a binding legal agreement. It is formed when one party makes an OFFER, which the other party (or parties) ACCEPT, in exchange for CONSIDERATION.
- Offer – sets out what both parties will do, must have definite terms (cannot be vague, incomplete or uncertain).
- Acceptance – accepting the terms of the offer as it was made, both parties must be agreeing to the same thing.
- Consideration – something done or promised to be done. (e.g. payment of fee on signing or promise of future payments)
A contract can be written in a very formal or an informal style, but a good contract will make clear what the responsibilities and expectations of each of the parties are and how the parties intend to solve problems if any arise.
Clear and detailed agreements laid out upfront will ensure that collaboration is successful for the duration of the project. It will provide you with a paper trail of mutually agreed upon guideline to refer to if disagreements arise. It’s especially important to write down the terms of your artistic relationships when working with friends and to document the deal you entered into for third parties like Equity, funding bodies or for tax reasons.
While often indie producers will write their own contracts, there are times when it is important to get legal advice – such as when you (or your company) are entering into an ongoing employment relationship with someone (employment standards law may apply) or if you are being asked to sign away your intellectual property. When in doubt, ask a lawyer for a consult to see if it’s the kind of issue where you need legal advice, or if it’s reasonable to just write something yourself.
Different stages of developing work and different creation and producing relationships require different contracts. Here are some different types of engagements that you may run into: contracts will look different depending on what engagement you are entering.
Production vs. Development
A production contract is for a show that already exists, where the focus in on rehearsal and presentation. A development contract will be for a show that someone is engaged to develop be it through workshop or creation.
Commissions vs. Creation
Commissions are when a producer asks for someone to bring something into existence (for instance, a playwright will often be commissioned by a company to write a play). Creation is more artist-led, where the show is devised and collaboratively developed.
Producing vs. Co-Producing (Co-Pro) vs. Presenting
Producing is when a company or sole producer takes on all the financial risk of the project and works independently to sell tickets and market the show.
A co-pro is a co-produced production, which may include two or more companies that are collaborating on a production. The involvement of each company will likely be different, sometimes, one takes on the financial risk, and the other does the work. Sometimes, both share the financial risk and the work. There are many different models for co-producing.
Presenting is when another party buys out a production to have it performed in their venue, absorbing the financial risk that comes with selling tickets at the box office. This is usually done for a flat rate paid to the production by the presenting company. They may also assist with some marketing, and that should be agreed upon in advance and written into your contract.
Different artists and service providers have specific needs that a producer should address when making agreements. Unions and associations often provide standard forms of contracts, or there may be industry standards or normal rules that producers should be aware of before making offers. There are differences in the contracts for the type of worker you are engaging and those differences typically lie between:
- Engagement of Artists (performers, designers, technical staff, playwrights, musicians)
- Service providers (carpenters, graphic designer, publicity, etc.)
Producers will book a variety of spaces for work, rehearsal, performance, or events related to your company or performance run. Think ahead to book the spaces you may need well in advance. When booking any of these spaces, have a list of questions you want to ask upfront, then ensure that you have a contract with the venue that you will be in, detailing the specifics of what has been discussed, what your responsibilities are, what is permitted and what is not. You may require a contract for any of the following:
- Rehearsal Space
- Creative Meeting Facilities
- Ancillary Events
There are many different models to fund a show, each of which may require different kinds of documents to record the flow of money into and out of a project. Some funding sources may have specific rules for how money can be used (e.g. grants) or may be specifically regulated (e.g. investment). Either way, no matter how you receive that money, there should be a contract in place to determine what each party is responsible for in the engagement. You may receive financial assistance from any of the following outlets:
- Grants/Public Funds
- Private Donors
Although many organizations go through the Canadian Actors’ Equity (CAEA) or another professional organization to format a contract, sometimes as an indie producer you may choose to do a non-union agreement. When contracting artists under an agreement that is not one of the standards set out by the professional organizations, it can be wise to use those as a model for you to build your agreement or contract on.
A few things to consider when drafting up your own contracts:
- When will the artists get paid and how will they get paid? (flat fee? profit-share?)
- How will artists be credited?
- What is required of the artists? Will you ask them to do certain things outside of their typical job description (ie. social media responsibilities, etc.)?
- Termination clauses (minimum notice) for both engager and artist as well as compensation in the event of termination.
- Image release (is the use of their image compensated, etc.)?
This checklist will help you structure a strong contract for artists involved in your project, whether they are a union member or not:
- Service: describe the services that will be provided
- Term: state when the agreement starts and ends
- Fee and Payment Terms: describe how and when the party providing the service will be compensated (read more about professional standards and fee considerations here)
- Additional Compensation: state whether or not the party will receive additional compensation for their services (and if so, for what)
- Rules and Liabilities: outline liability for both parties if contract is breached
- Breach, Termination, and Leave: describe termination, leave and breach of contract terms, procedures and provisions for both parties
- If you are contract for International Touring, are there any Visas required?
PROducing Tip: Our page on professional standards can be very useful in determining the services your project requires and an appropriate compensation fee.
Treaties are significant pacts and contracts. They are “an enduring relationship of mutual obligation” between two or more groups. A treaty is an agreement between parties to co-exist with neither one interfering with the other.
Tamara Starblanket explains Indigenous Understandings of Treaty in her essay Treaty - Negotiations and Rights:
According to the Elders, our rights are not granted by the Canadian Constitution; instead it is bestowed upon us by the Creator and recognized by the making of Treaty. Indigenous rights are inherent. The inherent authority to govern our Nations cannot be granted by any foreign government. The United Nations Special Rapporteur on Treaties Miguel Alfonso Martinez determined that the Treaties negotiated and concluded with the British Crown are international agreements. This is the same understanding as our Elders. From an Indigenous worldview, Treaty reinforces the inherent authority. It is the legal framework that Indigenous Peoples operate from. The Elders understand our Treaty as peace and friendship agreements, not land surrender agreements. These peace and friendship agreements provide for two parallel legal systems that were intended to co-exist, each party respecting the authority of the other.
As an act of knowledge sharing and in servitude of the community, Kim Senklip Harvey has made public a treaty agreement between Daryl Cloran and the The Citadel Theatre and Ashlie Corcoran and the Arts Club Theatre Company to support her play Break Horizons. They offer this treaty as an opportunity for organizations to think about engaging with de-colonial practices with their work and with their artists.
The Balance Small Business has a great step-by-step guide to writing your own personal freelance template contract that you can reference and re-use in your work.
To reflect the varying conditions in the Indie Theatre sector, the ADC (Associated Designers of Canada) has developed 4 INDIE Contract Templates for Producers to use depending on the project.
The PGC (Playwrights' Guild of Canada) has a series of contract templates to be used when a play by one of its members is being produced in a PACT Theatre.
PACT (The Professional Association of Canadian Theatres) has a online database of resources, including a folder of CAEA CTA Contract Templates for you to download.
CADA Ontario and CADA West both have contract templates for hiring performers and and administrative support or other roles outside of performing. Find CADA Ontario templates here, and CADA West contract templates here!
Freelance lettering artist Jessica Hische created an invaluable Client Email Helper that generates email responses to help you say “no” to free and low-budget work and to help ask for more favorable contract terms before the start of a project. Try it out!
Artists' Legal Outreach is a B.C.-based incorporated non profit comprised of volunteer lawyers and law students committed to working with artists and arts organizations. You can find information, templates, and resources about copyright and contracts.
The Conseil québécois en arts médiatiques (CQAM), in collaboration with consultant Georges Azzaria and a committee of artists in digital arts, have developed a series of contract templates for use by the media arts community. These pdfs are currently only available in French.