Freelance Crew Deal Memo / Photo Credit: Studio Binder
WHAT IS A CREW DEAL MEMO? (In the Entertainment industry.)
WHAT IS A CREW DEAL MEMO?
Deal memos or crew contracts are the documents you're asked to sign before a shoot. They are usually created up by the production company and form the official agreement between you and those hiring you. In short, a deal memo is a contract of terms between you and whomever holds the money on the shoot.
Do not be afraid of a deal memo, it is standard…but read it, ask questions if you have a concern. It is a legal document and protects your right as well as the Production Company/Studio. A Deal Memo is the employment agreement that states what you are being hired to do; what you will be paid; terms of employment; and misc. details. Employment on union shows is not so risky, since there are strict guidelines for the producers to follow, along with the recourse of union intervention if crew members are mistreated.
Make sure that the wording is specific and relevant! Do not be afraid to cross out paragraphs left over from the actors' contracts.
The memo should clearly state who the employer is. If it is a bona fide, long-standing production company—that is okay. But if the name of the production company is the name of the film, expect the production office to shut down forever on the last day of shooting! Get the real name of the producer, including actual address (verify it) and social security number. If the producer refuses his/her real name or address, be wary!
The memo should have your name on it, of course. It should detail your job function on the set, such as Production Sound Mixer, Boom Operator, etc. That way you do not end up hauling lumber around.
EXAMPLE: Please note that is deal memo is a template only. It should not be construed as legal advice and Producer to Producer is not responsible for its usage in any way whatsoever.
FREELANCE CREW DEAL MEMO
PRODUCTION COMPANY: ____________________________________________
FILM TITLE: _________________________________________
START DATE: ______________ POSITION: _______________
FREELANCE CONTRACTOR NAME: ________________________________________
ADDRESS: _____________________________________________
PHONE: Mobile: ________________________ Email: _________________________
***********************
(Items below to be completed by production company only)
COMPENSATION: per day
SCREEN CREDIT: __________________________________________
OTHER TERMS: _____________________________________________________________
TERMS AND CONDITIONS OF EMPLOYMENT
This Deal Memo shall confirm the agreement between the above-named freelance contractor (“Contractor”) and (“Production Company”), in connection with the Film presently entitled “ ” (“Film”). For good and valuable consideration, the receipt of which is hereby acknowledged, Production Company and Contractor agree as follows:
SERVICES: Contractor shall render services hereunder from the Start Date, which are usual and customary of the services required of a person employed in this capacity in the film industry, and shall render such services exclusively to Production Company thereafter through the completion of Contractor’s services as determined by Production Company. Contractor’s services in the position stated above shall be rendered to the best of Contractor’s ability and as Production Company directs in its sole discretion, including, without limitation, all matters of taste and judgment.
RENTALS: Contractor’s kit rental and equipment is the sole responsibility of Contractor. Production Company assumes no responsibility for Contractor’s kit/equipment. Any rentals from Contractor must be approved by Company and must be documented at the time of hire with a rental agreement.
PAYMENT: Production services fees shall be paid to Contractor within 30 days after Production Company’s receipt of Contractor’s invoice. Pay date may be delayed by reason of an intervening federal or state holiday. Employee shall not receive any overtime, turnaround or other hourly payments. Paid work on a day off or a holiday must be approved in advance by Production Company and will be paid at the normal rate provided for by this Deal Memo.
CAR INSURANCE: Contractor shall be covered under State’s Worker’s Compensation policy during the period Contractor renders services pursuant hereto. Contractor is responsible for liability and collision insurance and deductibles on her/his personal vehicle used in conjunction with their employment.
ALCOHOL/DRUGS: Use of alcohol or drugs during hours of employment will result in Contractor's immediate termination.
PURCHASES: All purchases, rentals and other expenses incurred by Contractor must be approved in advance by Production Company’s Producer or Production Manager. A purchase order or check request is needed for all rentals or non-cash purchases. All purchase orders or check requests must be approved by the Producer or Production Manager.
PETTY CASH: If Contractor is given a petty cash float, Contractor is responsible for returning receipts, remaining cash, or a combination thereof upon completion of the job. Contractor authorizes Production Company to deduct from Contractor’s final payroll check any outstanding balance in Contractor’s petty cash advance fund and any costs of repair or replacement of any equipment assigned to Contractor accrued as a result of Contractor’s negligence.
PRODUCTION COMPANY EQUIPMENT: If Contractor is assigned a walkie-talkie, cell phone, or any other equipment, Contractor shall be responsible for returning same to Production Company in good working order.
SCREEN CREDIT: Unless otherwise specified in this deal memo, screen credit is at Production Company's discretion subject to Contractor's performance of all services required through completion of term.
TERM: Unless expressly provided elsewhere in this agreement, Contractor's employment hereunder shall not be for a "run of the show" or for any guaranteed period of employment. Production Company reserves the right to discharge Contractor at any time, subject only to the obligation to pay the balance of any guaranteed compensation due provided that Contractor is not in material breach of its obligations hereunder. Production Company will attempt to notify Contractor a minimum of twenty four (24) hours in advance of layoff. Use of alcohol or drugs during hours of employment will result in Contractor's immediate termination. This agreement is subject to immediate suspension and/or termination (at Production's election) without further obligation on the part of Production Company in the event of any incapacity or default of Contractor or in the case of any suspension, postponement or interference with the Film’s production by reason of labor controversy, strike, earthquake, act of God, governmental action, regulation, or decree or for any other customary force majeure reason. The expiration or termination of this Deal Memo shall not affect the ownership by Company of the rights granted herein.
NO WAIVER: The terms and conditions of this deal memo are binding for Production Company and Contractor and shall not be waived or altered by any method. Any added conditions on the front of this deal memo inconsistent with these conditions of production services shall be null and void.
WORK FOR HIRE: Production Company shall be the owner of all of the results and proceeds of Contractor's services, including any copyright, trademark and any other intellectual property rights in any work or property created by Contractor, or anyone under Contractor's direction. Contractor acknowledges that Contractor's work is a "work made for hire" within the scope of Contractor's work, and therefore Production Company shall be the author and copyright owner of any work created under this agreement. In the event that any of proceeds of Contractor's work are not considered a work for hire, then Contractor's copyright to such work is hereby assigned to Production Company. Contractor expressly waives any rights of droit moral that may be afforded Contractor under the laws of any country in connection with the Film. If Contractor shall hereafter be deemed to own any rights in or to the Contractor, Contractor hereby assigns such rights to Company and further agrees to execute any documents required by Company to effectuate such intent.
AVAILABILITY: Contractor will advise Production Company of Contractor's whereabouts so that Contractor may be reached at any reasonable hour of the night or day during the term of this deal memo.
PUBLICITY: Company shall have the right to use Contractor's name, voice, picture and likeness in connection with the Film, the advertising and publicizing thereof, and any promotional films or clips respecting the Film without additional compensation therefore. Contractor shall not directly or indirectly circulate, publish or otherwise disseminate any news story, article, book, blog or other publicity concerning the Film, the Contractor's or others' services, without Production Company's prior written consent. Admittance of any non-contracted guests to the set is at the sole discretion of the Production Company.
ARBITRATION: This Agreement shall be interpreted in accordance with the laws of the State of _________________, applicable to agreements executed and to be wholly performed therein. Any controversy or claim arising out of or in relation to this Agreement or the validity, construction or performance of this Agreement, or the breach thereof, shall be resolved by arbitration in accordance with the rules and procedures of ________, as said rules may be amended from time to time with rights of discovery if requested by the arbitrator. Such rules and procedures are incorporated and made a part of this Agreement by reference. If _________ shall refuse to accept jurisdiction of such dispute, then the parties agree to arbitrate such matter before and in accordance with the rules of the American Arbitration Association under its jurisdiction in ________________ before a single arbitrator familiar with entertainment law. The parties shall have the right to engage in pre-hearing discovery in connection with such arbitration proceedings. The parties agree hereto that they will abide by and perform any award rendered in any arbitration conducted pursuant hereto, that any court having jurisdiction thereof may issue a judgment based upon such award and that the prevailing party in such arbitration and/or confirmation proceeding shall be entitled to recover its reasonable attorneys' fees and expenses. The arbitration will be held in _______________ and any award shall be final, binding and non-appealable. The Parties agree to accept service of process in accordance with the _________ Rules.
ENTIRE AGREEMENT: This deal memo sets forth the entire understanding of the parties regarding the subject matter and may not be amended except by a written instrument signed by the parties. Any added conditions on the front of this deal memo inconsistent with the conditions of employment detailed in the body of this agreement shall be null and void.
NO OBLIGATION TO PRODUCE: Production Company will not be obligated to produce or release the Film, or to use the results of Contractor’s services.
ASSIGNMENT: Production Company shall have the right to transfer or assign its rights and obligations pursuant to this deal memo to any other person, firm, or corporation, and upon such assignment shall be relieved of its obligation to Contractor.
HOLD HARMLESS: Contractor shall indemnify and hold Production Company harmless from and against any and all loss, claim, liability, judgment, cost or expense suffered by Production Company for any breach or default of this Deal Memo by Contractor.
CONTRACTOR ACCEPTS ALL CONDITIONS OF PRODUCTION SERVICES WORK AS DESCRIBED ABOVE
AGREED TO AND ACCEPTED: __________________________________
Date: _____________
CONTRACTOR ______________________________________
Date: _____________
PRODUCTION COMPANY _____________________________________________
Salary.
How much are you being paid? For what period of time: hourly, daily, or weekly? Define that period of time, such as an 8-hour workday, excluding an off-the-clock lunch break of not less than 30 minutes but not more than one hour. Or perhaps a 10 hour workday, or even a 12 hour day.
When will you get paid?
State laws usually require paychecks not more than 7 days after the pay period, but check your local laws. Most crews like to be paid on a weekly basis, beginning not more than 7 days from the first day of work. Do not accept any deal where you won't be paid until the end of a lengthy shoot; that is a sure sign that the producer does not have any funds!
Do not be nice about not getting paid.
If you were promised a paycheck on Friday, and that check is not there, then make it very clear that it had better be there by the next morning. Holding back your roll of dailies can help make the point; even if it means accidently turning in a blank roll... oops. And if the check still is not there the following morning, well, time to take evasive action. Leave the set, and make sure to take your equipment with you!
Overtime
Overtime traditionally means at least time and a half for any hours beyond 8 per day, 40 per week, or seventh consecutive workday. In the movie biz, these rules often get bent. Figure in your basic overtime to your rate when you agree to (or define) a long working day, or weekly rate. Your deal memo should state that you expect overtime compensation for all time beyond your basic 8, 10, or 12 hour day; as well as for weeks extending longer than the defined week.
Producers will counter with the statement that no one is getting paid overtime because no day will go overtime! To that, I point out, if we do not go into overtime—then you will not have to pay me overtime. But if you do not agree to pay me overtime when the day goes into overtime, then I will simply pack up and go home at the end of my shift and the rest of the crew can shoot M.O.S. (Of course, I never leave my equipment behind for someone else to use!)
The deal memo should cover areas such as meals (who pays?), travel expenses, gas, tolls, parking.
Travel days should be compensated, at least partially.
Airfare should be prepaid, and round-trip tickets are given to each crew member before departure. Make sure you have a return ticket in your possession, just in case the production falls apart while you are on distant location.
Hotel accommodations are to be of reasonable quality (clean, no bugs) and private room/bath. No dorms or sharing of facilities. You are entitled to your privacy and rest. Rooms should be prepaid or secured with the Producer's credit card; never your own.
Are you an employee or an independent contractor?
Low budget producers will often try to entice you into being an Independent Contractor so that you will not have taxes deducted from your meager paychecks. But the IRS does not consider you to be an Independent Contractor unless you are working independently of the crew, such as an Editor in their own offices. If you work under the direct supervision of the production company, then you are not independent. If you use your own equipment or facilities, determine your own hours, choose your own locations & working conditions—then you may qualify as an Independent Contractor.
But the biggest problem that you face as an Independent Contractor is not taxes, but insurance coverage. What happens if you get sick or injured on the set? What if disaster strikes your equipment? Independent Contractors are self-insured. Employees are covered by Workman's Comp and Liability provided by the Producer.
Equipment and expendables
Is the producer renting an equipment package from you and paying you weekly for it? Is the equipment totally your own, or is it from a rental house? Whose account is it under, yours or the producers? Who is providing insurance coverage against loss or damage? Is the company purchasing expendables and providing them to you, or are you bringing the expendables and billing the company on an as-used basis?
If you are engaged to act as a middleman in arranging for equipment, make sure that the rental house understands that you are acting on behalf of the producer and not for yourself. They may be willing to entrust their gear to the producer because they trust YOU, but then they will want to hold you RESPONSIBLE. Make it clear that they must be comfortable with the producer's credit app and insurance, and that you are not personally vouching for your client.
By the way, never put up front money or your credit card to cover company bulk purchases. If you have to front for expendables, then they belong to you until the company reimburses you, at a profit!
Term of employment
The deal memo should state the start and completion dates of the project. Are you being hired for the duration of the show, weekly, or on a day-to-day hire? How many days prior to the start date does the production company need to notify you in the event of postponement or cancellation? After all, you are turning away other work being offered to you because the producer has booked you! Will you be compensated for delays? What about compensation for prep days, location scouting, and travel days?
Deferred Salary.
Read free. Do not seriously expect to be paid any real money after the picture is completed and "sold". You have better odds of winning the lottery! Whatever compensation you are going to get, you will receive at the end of each shooting week. After that, forget it.
So make sure you that you are willing to settle for whatever is offered to you up front.
But if you feel lucky, and decide to gamble on a Deferred deal, then play it for as much as you can get. Do not defer straight salary; if you have to wait and gamble, then it should be for at least double or triple your normal rate. Expendables, expenses, and equipment rental are not deferrable!!
Priority of deferred payment.
Your deal should state that you get paid as quickly as anyone else. Investors who put up cash should not be paid off any sooner than professionals who put up their time and skill. Your services are equal to cash, since the producer would otherwise have to PAY for them.
The few times that I have had to accept a partially deferred deal, I have added a clause stating that all of the soundtracks that I record are my property and copyright until my contract is paid off in full—only at that time will the ownership and rights to the sound recordings revert to the producer. The producer is prohibited from entering into any agreement with any outside party that constitutes sale or transfer of ownership of the sound recordings until my contract is paid in full. That prevents a producer from legally selling off the film to a distributor, and then claiming that the amount of the sale was insufficient to pay off the deferred debt. The distributors purchasing the rights to the film always claim that any deferred contracts are between the crew and the producer.
I also record a copyright claim at the head of every tape.
Ownership of the sound recordings serves as mechanic's lien and may give you a little more leverage to insure payment. But don't count on it. Lawyers usually only take your case if really big money is involved.
Most importantly in your deal memo, pay attention to who signs it. An approval by a production assistant is not considered binding by the producer. It must be signed by the producer if deferred payments are involved. The producer or a senior production manager must sign any deal memo. Make sure that the production manager is, in fact, empowered to make the deal.
The issue of deal memos is a complicated one, and this article should not be used in lieu of consulting with an attorney. Many fine line legal issues are involved, and the laws vary widely from state to state.
Be careful in what you sign and what you agree to! Make sure that the deal memo covers not just what the producer expects from you, but what you expect from the producer! The more specific, the better. If you are not using the services of a lawyer, then write everything out in plain, common day English. A judge is more likely to rule in your favor if the intent of the agreement is clear, even if it is not in legalese. When your agreement starts sounding like it was written by a lawyer, then legal loopholes are more likely to be applied.
Always get a signed copy of the agreement, including initialed pages and initialed cross-outs. Better yet, ask to take an unsigned copy of the deal memo home for a couple of days to look over. Explain that you never sign any contract without consulting with your lawyer. Even if you do not have a lawyer, that will give you a chance to show the agreement to a couple of seasoned professionals who might spot something fishy or badly misworded.
Do not be afraid of a deal memo, it is standard…but read it, ask questions if you have a concern. It is a legal document and protects your right as well as the Production Company/Studio.
Sources, References & Credits: Google, Wikipedia, Wikihow, WikiBooks, Pinterest, IMDB, Linked In, Indie Wire, Film Making Stuff, Hiive, Film Daily, New York Film Academy, The Balance, Careers Hub, The Numbers, Film Maker, TV Guide Magazine, Blurb, Media Match, Quora, Creative Skill Set, Chron, Investopedia, Variety, No Film School, How Stuff Works, WGA, BBC, Daily Variety, The Film Agency, Best Sample Resume, How Stuff Works, Bright Hub, Career Trend, Producer's Code of Credits, Truity, Production Hub, Producers Guild of America, Film Connection, Variety, Wolf Crow, Get In Media, Production Beast, Sony Pictures, Warner Bros, UCAS, Frankenbite, Realty 101, Liberty Me, Careers Hub, Sokanu, Raindance, Film Connection, Cast & Crew, Entertainment Partners, My Job Search, Prospects, David Mullich, Gear Shift, Video University, Oxford Dictionaries’, Boredom Therapy, The Bold Italic, Nicholas Persac, The Guardian, Jones on art, Studio Binder, Film Tool Kit, Still Motion, Fred Ginsburg,
Film Under Ground,
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Freelance Crew Deal Memo / Photo Credit: Studio Binder
