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Old 03-24-02, 06:16 AM   #1
Steven Ragatz
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Post An ethical question...

OK, here is a "hypothetical" ethical question:

Performer A tells performer B that they have a gig that needs a multi-act show. The client has shown interest in performer A, but performer A doesn't have the experience and promotional materials that B has, and cannot do the show alone as a solo. So A asks B to join in. B agrees, and the two submit combined promotional material and make arrangements. The client is pleased, and agrees on a budget of 10,000 penguins. A and B agree to split the work and split the penguins at 5,000 each. To avoid having to issue 1099s, A and B also agree to contact and deal with the client separately so that B is not subcontracted through A, and the client must submit two checks. All is good, and faxes and contracts are in the mail...

But then, something goes wrong. Enter performer C.

Performer C overhears a conversation about the gig, and expresses interest to Performer A about joining the ensemble. Performer A decides that C is the perfect act for the event. Performer A asks performer B to include C in the show, splitting the penguins three ways. Performer B refuses to give up penguins. Performer A then reminds performer B that they are dealing with the client independently and that each of them is free to negotiate what they will. Performer A submits a new bid for an AC show for 10,000 penguins. The client is pleased with the new bid, contacts performer B, and tells him to get lost.

Now, from my point of view, the client is behaving like a typical client. In spite of having written confirmation about contracting B, they backed out at the last minute. FOL. The fix is to get the client to sign the contract sooner...

But, I question whether or not A and C were behaving appropriately. What do you guys think?

Performer B
(Steve)

PS. If this doesn't translate with the abstract characters, and no one is able to decipher what is going on, I'll just delete the message and we will all go on with other more concrete topics! Thanks.
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Old 03-24-02, 12:25 PM   #2
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Steve,

You were wronged. Plain and simple. I wouldn't work with performer A any more. You're just asking for trouble.
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Old 03-24-02, 01:59 PM   #3
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Performer B was totally wronged by performer A, pure and simple.
I dont know what more to say. A made a "word of mouth contract" with B. C had no place in this transaction. This was an act built to satisfy the gig the contractor was putting together, and not a creative ensmble looking to find the right combination of people/creators to build theatrical work. You are right, the client was behaving like a typical client (trying to get the most for as little amout of money as possible) and yes, getting them to sign the contract fast is the key, but A and C threw wrench into what was a simple deal and from what you have said , there was not reason to bring C into the deal. The needs of the gig were being filled in a simple straightforward way without C. The only motivation I can see for A bringing C into the deal is from a "This might make the act cooler" standpoint, but why bother if you already have everything taken care of. Why drop your oun profit for the gig for the sake of a couple of "cool tricks". Maybe if you are looking to build a theatrical ensmble to create work over a long period of time, but not for a simple one-shot gig.
Personally I would be pissed at A. The range of my pissed-ness would depend on how much time I had invested in the deal and weather or not I had turned down other work for the dates of the gig. Even if I had invested only a short amount of time and had not turned down work, I would never work with A again. I would also let others know I got screwed by A if I felt I was in the right.
"Fool me once shame on you. Fool me twice shame on me."
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Old 03-24-02, 02:02 PM   #4
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An even deeper ethical question would be: "Why are you dealing in penguins?" Did you stop to think about how the penguins felt? Surely the exploitation of that many animals will raise the concerns of several animal rights groups.

Jim

P.S. Was the gig in Antarctica? Do penguins taste like chicken? Or do they taste like cold turkey?
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Old 03-24-02, 02:04 PM   #5
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Smile

Sorry for the previous post. I'm just all giddy that someone finally used this forum.
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Old 03-24-02, 06:05 PM   #6
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frack says share to the world the names of A and C. post it here for all to know. and penguins would be cool. frack leading a legion of penguins to conquer the world. yep yep frack attack
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Old 03-24-02, 09:02 PM   #7
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Thanks for the support guys.

The reason that I have asked is that the situation is muddied by the fact that both A and C have been "working friends" of mine for many years, and as such, I have strong emotional ties to them. In spite of their transgressions, I know them well enough to know that it was not done with malicious intent, but out of naivete. None of the other parties involved are used to dealing with contracts of this nature.

So, I guess I add another rule to the list: "Never conduct business with friends that you wish to keep." Sigh. The list just gets longer instead of shorter.

C is actually a two person act, which is why the client jumped on it. After all 10,000 penguins for two, or 10,000 penguins for three. Equally naive.

A and C are not performers that any of you guys will ever have to deal with, so there's no reason that I should point fingers and name names. I was simply trying to figure out if I was reading the situation correctly. In the heat of anger I composed a letter to all involved that finished with the oh-so-catchy closing sentence: "To be blunt, f*ck you all." I did have the sense to let my wife proof it for me before I sent it off. She is usually a pretty benevolent editor, but this time she did make me take out the last line. "You shouldn't stoop down to their amateur level.", she says. Of course, as always, she's right.

(aisde)
Once in my life I'd like to be the immature and childish one! Why must I feel guilty when I type a 'u' instead of an '*' in the word f*ck? Funny, because I have no problem saying it, and yelling it, but I hate writing it. I swear that trying to be a good role model with this whole parent thing has taken the wind out of my sails...
(\aside)

I am not the least bit sorry to have the gig fall through. Warning lights went off in my head from the start as both the client and the other performers had little or no previous experience. The lack of experience involved made is all the more troublesome to me when it fell through because I brought my experience into the mix and solved several issues which would have scuttled the show (such as preparing respectable promotional material, asking the pertinent questions, and arranging the liability insurance.*) I have had limited experience booking my own shows, but I'll bet dime's to dollars that this one turns out to be a complete mess.

Steven Ragatz

FYI, a penguin is significantly less than a dollar, but more that a banana (sometimes I negotiate in bananas.) I would guess that we are all having to scrape together the notion of fees and what other's garnish. Just so nobody gets the wrong idea, I was not offered 5,000 dollars! (Too bad though...)

* Many years ago I did a gig in a mall that required liability insurance. I signed up for a year with the Clown Association, or whatever it's called, just to do that one gig. That is the extent of my insurance knowledge. I haven't run into the problem since, until this proposed show.

I had read on P-Net that sometimes it is possible to have the performer's liability insurance added as a rider to the insurance needed to rent the show site. When dealing with this client, I confidently told her this, without really knowing if it was true or not, hoping that this would avoid having to try to find insurance for an airial act and stilts. Lo and behold, my finesse worked, and the client go back to me saying that they had added us to their local policy and were footing the bill as well!

Of course, it fell through for me, but kudos to P-Net for that little tidbit! I actually was going to send Jim a donation out of my fee, fifty penguins, but unfortunately for him, no fee will be collected! So Jim, I guess that this whole mess influences you also! Now we can both lie awake tonight stewing! Sorry about that - maybe next time...

[ 03-25-2002: Message edited by: Steven Ragatz ]</p>
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Old 03-25-02, 06:43 AM   #8
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I agree that "B" was wronged in this scenario. But Steven, because you went to the trouble or getting separate legal documents during the contracting phase you also have the ability to get this settled in Small Claims Court. Whether or not you ever work with "A" again should not stop you from pursuing action against the client, who obviously went against the spirit of your original agreement.
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Old 03-25-02, 08:41 AM   #9
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Chance,

Yes there are several aspects of the deal which seem to warrant legal action. But, contrary to popular belief, not all Americans sue at the drop of a hat. It would take transgressions far greater than this one to put me off enough to pursue legal action!

A more practical solution for me is to simply live and learn, and make it clear that I am no longer interested in working with any of the parties involved.

Steve
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Old 03-25-02, 08:59 AM   #10
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Steve,

I have one question before I answer this. Did you refuse to split the 10,000 penguins three ways because you felt C was an inappropriate addition to the group, or you just didn't want to share the penguins.

This is a sticky situation, on one hand A shouldn't have cut your throat, but on the other if they felt that C was a necessary addition and were willing to split their penguins, then perhaps you were being a bit unreasonable. Not knowing all the details (and personalities) involved, it makes it hard to lay the blame on one person.

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Old 03-25-02, 10:14 AM   #11
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Nope. It was about the money. I was not willing to do the gig as agreed for less that 5k penguins.

Though, before you are too harsh on me for being a bread-head, I did give them an out. I said that I would do one act, instead of the two that we had initially agreed upon, for 3k penguins. I knew that they were trying to stay within their 10k budget, so I did make a proposal which would have continued to include me in their plan. I considered this to be an overly generous gesture on my part since I had written confirmation from the client for the larger sum.

Steve
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Old 03-25-02, 10:56 AM   #12
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Steve,
I thought about putting this in my last post, but, I admire you for taking the high road and not including the names of A and C penguin takers.
My "angry guy living inside of me" would want to run out and hang the scarlett letter of shame for all to see, just because I'm pissed. I also think it wise to not run down the path of lawsuit.
We, my partner and I, were screwed a few years back on a multi-year contract, for alot more than 5k penguins, and our lawer said that lawsuits under 30k penguins get costly, rase your agrivation level and lower your profit level after you figure in fees etc. (helps to have an old High School buddy who went into law, but wished he went into performing. He lives vicariously through us. Thank God)
Also, GOOD FOR YOU, in being a 'bread head'. All to often people in this line of work dont draw a line in the sand and say "this is my price" and stick to it. Our time, training, practice, and creative efforts are money, and we owe it to ourselves to turn down some gigs because they want us to work for less than our asking price. Gazzo said once over dinner, "you dont get paid what you are worth, you get paid what you negotiate." It is important to make sure we negotiate a fee for ourselves that is close to what our time, training etc, etc, is worth.
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Old 03-26-02, 12:36 AM   #13
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[quote]Originally posted by Todd:
[QB] I admire you for taking the high road and not including the names of A and C penguin takers.
Steven,
I secong (or third?) this. It would be a childish and unprofessional move to disclose the names of these people. I have a tendency to think less of people who openly disclose nasty secrets about people they know or know of upon first encounters.

It shouldn't be general knowledge until at least the third meeting! HA! [img]wink.gif[/img]

Oh yes, and revenge is always best served cold. . . [img]rolleyes.gif[/img]

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Old 03-26-02, 12:45 AM   #14
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What stands out to me, Steve, is that it was on the strength of your promotional materials that the contract was won in the first place. By this alone A & C owe you.

Very wise not to sue... I sued an agent about 3 years ago and won the full amount plus interest and damages. I have yet to see a penny. Sure, I could go through collections and this and that... but at the end of the day I have better things to waste my time on.

Sorry that shit happens,


e t i e n n e
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Old 03-26-02, 06:30 AM   #15
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For what's it's worth, Steven, I only said that you *could* take this problem to a Small Claims Court, not that you *should*. Even so, Small Claims is something on the level of Judge Judy -- not exactly rocket science or anything too dramatic. Lawyers aren't even allowed to participate there. (And as a fellow American, I have never sued anyone either. Can you believe it?! Two of us on the same boards! This could be some kind of record. I'll have to check...)
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Old 03-26-02, 07:33 AM   #16
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Chance,

I didn't know the distinction between the two. Thanks for the clarification.

Upon inspection of my records, I was under an email agreement with the client for several days before they "changed their mind." At this point, it looks as if the best course of action is to simply send them an invoice for the rehearsal time during those days and see if they are willing to penny up that money. I haven't decided if it is worth it for a pocket full of penguins, but am curious if I can score two finesses in one deal.

The other performs really are dear friends of mine. I've done shows with two of the three off and on for over fifteen years. That fact alone has made the whole thing balloon out of proportion and turn into a major trauma.

'Nuf said. Time to move on...

Steve
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Old 03-26-02, 09:20 AM   #17
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Steve,

I would definitely send the invoice. You got nothing to lose and the client should be made aware that there is a lot that goes into a show, you just don't show up and perform.

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Old 03-26-02, 08:59 PM   #18
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perhaps someone should buy out your contract?

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Old 03-27-02, 06:33 PM   #19
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Hey Triona,

Most clients will NEVER realise that. I was approached by a woman who wanted to book me for her family reunion after she saw my show at an event. She was like "You want THAT MUCH for 45 minutes?!!?!!!?" I would expect your show to last all day for that!

I gently tried to explain to her that it practically would take me all day (load up my car, drive 4 hours round trip, load in and load out, plus the show). I did not even mention the out of pocket expenses and how much every prop and microphone costs and that the really slick piece of promo she was holding in her hand took me 3 months to produce and cost a small fortune.

We make it look effortless-- but it isn't!

e t i e n n e
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Old 03-27-02, 08:22 PM   #20
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You might consider putting a "kill fee" clause in your contract.

Something along the lines of:

If they decide not to go with you because the show is cancelled completely, they agree to pay you for time invested in their project to that point, to be billed at X penguins per hour/day/week/clever line, plus out of pocket expenses (ld phone, travel, equipment) to be itemized on your invoice, with the total kill fee not to exceed 25% of the total estimated cost of the show if they give you 4 weeks notice, 50% if they give you 2 weeks notice, or 75% if they call you the night before and tell you not to bother showing up.

If they cancel because it becomes apparent to them that you are preparing material that is clearly not in line with what you had agreed upon as stated in your original communications (attached to your contract for their signature) then they owe you significantly less....

Then, when they screw you, simply send them a very polite, totally professional invoice referencing the contract; Dear client, I am very sorry to hear that you have decided not to include my act in your event; per our agreement, I am invoicing you for X penguins for Y hours of preparation plus Z out of pocket expenses, itemized below, due net 15 days, thank you very much.

(If the client is big enough that there is another person/department handling the writing of checks, I find CC'ing them the invoice and the 15-day notice and the 30-day notice... is helpful.) You can also express understanding with their tight budget issues, and offer to cut a deal - better something than nothing... but hold off on negotiating down until you've invoiced them as though you're both totally professional business people who adhere to contracts.

They often still won't pay, but sometimes will, and just having a kill fee clause in your contract might lessen the post-contract-signing shopping around, plus if they don't pay the kill fee, you can claim the loss on your taxes. (Disclaimer - I am not a lawyer nor an accountant. On the other hand, people have paid me to convince their clients to pay them.)

There's also the route of getting part of the fee up-front. If someone has made an investment in you, even if it's relatively small, they'll be more inclined to want to get something back for it, even if this requires investing more, than to walk away from it.


And penguin is reported to taste a bit like duck, but oily rather than fatty, and much fishier (the whole fish & krill diet thing). Probably best served with a dry white wine.
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