Just recently I was presented with a contract for a touring megahit musical that had a surprising new clause in it, or at least one that was surprising and new to me: a three-month probation period on a one-year contract.
I’ve had clients in the show before, so I know this clause hadn’t existed previously. It was a new insertion. And the more I thought about it, the more I felt it was deeply inappropriate to agree.
I questioned the clause with the show and the reply I got was that the producer’s employment lawyer said it was within the law. Well, of course. I didn’t claim it was unlawful – I claimed it was unfair.
Outside the acting sphere, a probation period can make sense. If you are starting a new job you hope to stay in for 10 years, a three-month probation period is not so unreasonable, especially when – if you hate the job – you can probably give a month or two’s notice, and leave.
The clause is deeply one-sided
Applying it to a theatre contract for an actor is deeply one-sided. The actor can’t decide to leave at any time because he or she has had enough. But under this new clause, the producer could fire the actor in the first three months. Because it’s a one-year fixed contract, they won’t have auditioned for other shows and they will be plunged into unemployment. The odds of them being cast in an appropriate role in an alternative show are much lower than a temp finding an office job, to draw another parallel with a non-performance role.
Unfortunately, every agent of every other new cast member joining had already agreed the clause, so I was the last man standing. My client is one of the loveliest people on the planet, sickeningly talented and super professional, so this problem was only theoretical, and a matter of principle.
I could see there was a strong chance she could lose the job if we didn’t agree, so I took a view and reluctantly agreed it in this instance – on the understanding it should not have bearing on future negotiations.
Agenting is not about saying ‘no’
Agenting is not about saying ‘no’ the whole. Standing firm and being difficult isn’t the best way to serve your main purposes: protecting your clients’ interests and smoothing the way for a happy relationship with producers. Negotiating is not a flexing of the muscles – its a game of chess, working out the most you can get for your client without overplaying your hand.
So here I let a matter of principle go, for a client to have the employment she wanted. But if I saw this clause crop up again, I would readily campaign for its abolition.