During the height of the pandemic, Dance/USA gathered a group of presenters and agents to revise long-standard performance contracts. The group recently published their equitable guidelines.
In June 2020, as dance artists and venues around the country watched their scheduled performances—and expected incomes—evaporate, service organization Dance/USA began facilitating conversations for presenters, agents, producers, promoters and managers around a performance element that seemed, with each passing week, more and more in need of a revision: contracting.
Over the course of nearly a year, this assembled team, known as the Joint Working Group, worked to create equitable, conscientious guidelines for future contracting, with the aim to promote shared financial risk, rather than implicitly asking artists to take on much of that risk, as has often been the case. The Joint Working Group had three focuses: engagement, payment, and cancellation and force majeure clauses—what Sandy Garcia, group member and director of booking for Pentacle, a not-for-profit management support organization for the performing arts, calls the “get out of jail free card, where the engagement is terminated and everybody walks away.”
Garcia says these guidelines are not meant to function as hard and fast rules. “It’s not a one-size-fits-all situation,” she says. “These are best practices based on feedback and conversations that were had by colleagues in the field.” Dance/USA executive director Kellee Edusei agrees: “Not every organization will be able to implement every suggestion or aspect of the guidelines,” she says. Smaller organizations with smaller budgets, for example, might want to enact these items but fear their financial survival if faced with another wave of forced cancellations or postponements.
But organizations can implement what makes sense for them now, and Edusei believes the guidelines’ flexibility will ultimately result in important infrastructural change. Here are the biggest takeaways from them.
Performance vs. Engagement
The guidelines suggest strategically changing contract wording, including revising the phrase “performance agreement” to “engagement agreement” as a way of recognizing that artistic parties contribute far more than just a culminating performance—there’s preparatory administrative work, master classes, artist talks and more leading up to a show.
“Contracts usually center around the ‘performance,’ so sometimes a legal department will say, ‘This contract says it is for the performance happening on January 1, so we aren’t paying anything until that happens,’” says Garcia. “Recentering the contract from ‘performance’ to ‘engagement’ acknowledges that it’s a longer span of time.” The term “engagement,” then, encompasses not just completing a performance but also preparation, communication and financial investment.
First payments—not deposits
Pre-pandemic, artists might have received a small deposit soon after signing a contract with a presenter—which they would likely need to return in case of presenter cancellation or force majeure—before receiving the majority of their fee after the final performance. “Many contracts had the idea that if they were to pay something to the artist [ahead of a performance], it was looked upon as a deposit. We felt that the term ‘deposit’ didn’t really reflect what that money would actually be used for, like deliverables, or services rendered,” says Garcia, citing rehearsals, marketing materials, and company management costs as examples. The goal with changing “deposit” to “payment,” the guidelines stipulate, is to acknowledge the first payment for deliverables as nonreturnable (even in the case of force majeure). The guidelines also suggest making that first payment at least 40 percent of the full engagement compensation.
Force majeure, tweaked
As a part of their process, the Joint Working Group also consulted informally with Jay A. Mitchell, a Stanford Law School professor and director of the law school’s Organizations and Transactions clinic. Mitchell’s outlook on revising force majeure clauses was particularly important, says Edusei. “He said that just because something may be legal or written in a contract doesn’t make it necessarily ethical. Force majeure clauses are legal—they’re there for a reason—but when it came to them playing out in real time, there was true harm done.”
The force majeure clause is typically a generic one, Garcia says, stipulating that, in the case of an act outside of the contractual parties’ control (sometimes referred to as an “act of God”), the engagement is canceled and the agreement is terminated without liability for either party—that is, both presenter and artist are no longer obligated to honor their contractual agreements. The new guidelines suggest that, rather than thinking of force majeure as a cancellation-only clause, any contractual engagement might instead be delayed or rescheduled. “Even just adding the phrase that ‘best efforts will be made to reschedule the engagement’ would go a long way,” says Garcia.
The guidelines also recommend that, if the force majeure clause is invoked, any prior payments to the artist remain nonreturnable, and future compensation should be renegotiated in a mutually agreeable way. If the contractual engagement cannot be rescheduled, the artist should still be entitled to a “fair and equitable” final payment. In short, these changes mean that invocation of the force majeure clause no longer results in immediate termination of the agreement or serves as a complete death sentence for an artist’s planned engagement and compensation.
The future of contracts
Rethinking long-held tenets of engagement contracts hasn’t been limited to Dance/USA’s Joint Working Group. Garcia was also a part of another contract revision group within Creating New Futures—a team that wants to take things a step further. “Creating New Futures took the pillars of engagement, payment and force majeure as a starting point,” she says. “They’re expanding on that by looking at a contract as a moral document that reflects the values of an organization.”
Edusei also believes the Dance/USA guidelines will encourage artists to approach their contracts with a keener eye: “If you’re an artist reading these guidelines, you’re now empowered with a different way to review your contract—and to ask different questions.”
Rachel Rizzuto reports on studio business for Dance Teacher and holds an MFA from the University of Illinois at Urbana-Champaign.